SR 28 Central Corridor Trail_Form of CMAR Construction Contract.pdf

Tahoe Transportation District

Construction Contract for the Enter Project Name

Between

Tahoe Transportation District and

Enter CMAR Contractor Name ii

Instructions to Preparer: Red text and bubble margin comments are included throughout this template to be completed/revised by the preparer. Brown text provides example language from past projects that should be reviewed and revised before using.

Please delete this and all other margin comments and change red or other colored text to black to finalize the contract.

iii

TABLE OF CONTENTS

Page

Section 1. Definitions Section 2. Notice of Award and Notice to Proceed

2(A) Notice of Award 2(B) Notice to Proceed 2(C) TTD Project Manager

Section 3. Scope of Work Section 4. Compliance with Contract Documents; Project Meetings

4(A) Requirements for the Work 4(B) Project Meetings 4(C) Conflicts, Ambiguities, Errors or Omissions in Contract Documents

Section 5. Project Schedule 5(A) Contract Time 5(B) CPM Schedule 5(C) Completion Deadlines 5(D) Changes to CPM Schedule 5(E) Delays 5(F) Extensions in Time 5(G) Use of Non-working Days

Section 6. Construction Price 6(A) Agreement on Construction Price 6(B) Key Principles of Construction Price 6(C) Items Included in Construction Price 6(D) Use of Risk Register Account 6(E) Cost Overruns

Section 7. Invoicing and Payment Provisions 7(A) Submittal and Payment 7(B) Contents 7(C) Progress Payments 7(D) Retention 7(E) Reservation of Rights 7(F) Prompt Payment to Subcontractors 7(G) Submittal of Deliverables and Final Payment 7(H) Execution of Release 7(I) No Estoppel

Section 8. Key Personnel 8(A) Responsibility of Contractor 8(B) No Replacements without Approval 8(C) Substitution of Key Personnel iv

8(D) Liquidated Damages 8(E) Removal

Section 9. Subcontracting Plan and Subcontractors 9(A) Subcontracting Plan 9(B) Subcontractors 9(C) Compliance 9(D) DBE Provisions. Or Section Not Used

Section 10. Insurance Section 11. Bonds

11(A) Performance Bond 11(B) Labor and Material Payment Bond

Section 12. Indemnification Section 13. Changes

13(A) Purposes for Which Change Orders May Be Issued 13(B) Issuance of Change Orders

Section 14. Categories of Changes to Contract Time/Construction Price 14(A) Categories of Changes 14(B) Excusable Delay 14(C) Compensable Delay 14(D) Compensable Events 14(E) Basis for Establishing Costs

Section 15. Procedures for Changes 15(A) Request for Information (RFI) 15(B) Request for Change (RFC) 15(C) Change Notice 15(D) Contractor’s Cost and Schedule Proposal (CSP) 15(E) Unilateral and Bilateral Changes 15(F) Deleted Work 15(G) Audit 15(H) No Change Based on Unauthorized Person

Section 16. Basis for Establishing Costs Associated with a Change 16(A) Determination of Amount Payable 16(B) Ineligible Costs 16(C) Eligible Costs 16(D) Work After Scheduled Completion Date or During Delay 16(E) Increased or Decreased Quantities

Section 17. Hazardous Materials 17(A) Obligations of Contractor 17(B) Discovery of Hazardous Materials 17(C) Materials Brought to Site by Contractor 17(D) Hazardous Waste Generator v

17(E) Change Orders Section 18. Warranties Relating to the Work

18(A) Elements of Warranty 18(B) No Design Warranty 18(C) Warranty Term 18(D) Remedy and Corrections 18(E) Permits and Costs 18(F) Emergency Repairs 18(G) Warranty on Corrected Work 18(H) Subcontractor and Supplier Warranties 18(I) Reservation

Section 19. Project Completion and Acceptance 19(A) Substantial Completion 19(B) Punch List Completion 19(C) Final Acceptance 19(D) Relief from Maintenance Responsibility 19(E) Landscape Acceptance 19(F) Passage of Title

Section 20. Liquidated Damages 20(A) Time of the Essence 20(B) Failure to Meet Completion Deadlines 20(C) Violation of Key Personnel Requirements 20(D) Assessment and Collection 20(E) Other Remedies

Section 21. Right to Suspend Work and Terminate Contract 21(A) TTD Rights 21(B) Contractor Obligations 21(C) Written Notice 21(D) Other Rights

Section 22. Alterations and Omissions Section 23. Issue and Dispute Resolution

23(A) General 23(B) Negotiated Resolution 23(C) Mediation/Arbitration 23(D) Litigation 23(E) Actions During Dispute Resolution 23(F) Alternative Dispute Resolution

Section 24. Access to Records and Audits 24(A) General 24(B) Duration

Section 25. Escrow of Pricing Documents vi

25(A) Requirements for Proprietary Pricing Documents 25(B) Document Format and Contents 25(C) Incorporation of Certification 25(D) Review and Supplementation 25(E) Storage and Access 25(F) Examination After Execution of Agreement

Section 26. Exclusion of Consequential Damages 26(A) Exclusion 26(B) Exceptions to Exclusion

Section 27. Not Used Section 28. Successors and Assignees Section 29. Independent Contractor Section 30. Compliance with Laws Section 31. Prevailing Wage and Apprenticeship Requirements

31(A) Prevailing Wage 31(B) Apprentices

Section 32. Disadvantaged Business Enterprise (DBE) Requirements or Not Used Section 33. Equal Employment Opportunity (EEO) Requirements or Not Used

33(A) EEO Program 33(B) Nondiscrimination 33(C) EEO Contract Provisions 33(D) EEO Specifications 33(E) EEO Records and Report

Section 34. Buy America and Build America, Buy America Requirements 34(A) Contract Provisions 34(B) Specifications

Section 35. Other Federal Requirements or Not Used 35(A) Federal Requirements 35(B) Certifications and Affidavits

Section 36. Other Provisions of NRS Chapter 338 36(A) Nondiscrimination 36(B) Preferential Employment

Section 37. Continued Effect of Pre-Construction Services Agreement Section 38. Applicable Law and Venue Section 39. Severability Section 40. No Third-Party Beneficiaries Section 41. Counterparts; Effective Date vii

EXHIBITS

Exhibit A: CPM Schedule

Exhibit B: Working Day Calendar

Exhibit C: Detailed Cost of the Work, Schedule of Values, and TRO Rates

Exhibit D: Risk Register Account and Events

Exhibit E: Key Personnel

Exhibit F: Subcontracting Plan

Exhibit G: DBE Performance Plan

Exhibit H DBE Provisions

Exhibit I: Indemnification and Insurance Requirements

Exhibit J: Other Federal and NDOT Local Public Agency (LPA) Requirements

• Form FHWA-1273, "Required Contract Provisions, Federal-Aid Construction Contracts (Exclusive of Appalachian Contracts)" – Revised October 23, 2023

• Appendix A of Department of Transportation Order 1050.2A

• Appendix E of Department of Transportation Order 1050.2A

• Additional Contract Provisions – Supplement to the Weekly Certified Payrolls

• Additional Contract Provisions – Equal Employment Opportunity Training Special Provisions

• Additional Contract Provision – Disadvantaged Business Enterprise in Federal-Aid Highway

Construction

• Buy America and Build America, Buy America Requirements

• Standardized Changed Condition Clauses

• Prompt Payment and Retainage Clause

• Required Postings and Notices

• Prosecution and Progress

Exhibit K: Certifications and Affidavits

• Form IC - Certification Regarding Debarment, Suspension, Other Ineligibility and Voluntary Exclusion

• Certification Required by 31 U.S.C. § 1352, Restrictions on Lobbying Using Federal Appropriated Funds, and “Instructions for Completion of SF-LLL, Disclosure of Lobbying Activities”

• Form NC - Affidavit of Non-Collusion

• Form BAC - Buy America Certificate viii

Exhibit L: Davis-Bacon Wage Rates and Nevada Prevailing Wage Rates

*Note for all federal or Local Public Agency (LPA) requirements or forms, ensure these documents are extracted directly from the NDOT LPA guidance (file name: LPA Bid Doc Guidance and Forms 230103).

Verify with NDOT that the latest version of this document is being used. If the date code at the end of the file name is later than “230103” or January 3, 2023, defer to that version of the guidance to verify/replace the noted forms in the exhibits. It is recommended to simply do a wholesale replacement following the guidance’s direction, but the preparer can also do a line-by-line comparison to ensure consistency.

CONSTRUCTION CONTRACT

This agreement (this “Agreement”) is entered into this ____ day of _______________ 20__, by and between the Tahoe Transportation District (“TTD”) and Enter CMAR Contractor name (“Contractor”), a company authorized to do business in Nevada, for the construction of the Enter Project Name (the “Project”).

WHEREAS, TTD conducted a competitive procurement process in accordance with Nevada State law pursuant to Request for Proposals (RFP) to select a contractor to provide Construction Manager at Risk (CMAR) services for the pre-construction and construction phases of the Project.

WHEREAS, the Contractor was determined to be the highest ranked proposer in that competitive procurement process and was selected to provide pre-construction services.

WHEREAS, TTD and the Contractor entered into a Pre-Construction Services Agreement on Enter Pre- Construction Agreement date, which established the terms, conditions, and scope of work for the pre-construction services and also provided that the Contractor may perform the Work on the Project if TTD and the Contractor were able to agree subsequently upon the construction price for that work and other contract terms and conditions.

WHEREAS, in accordance with the terms of the Pre-construction Services Agreement and applicable State law, TTD and the Contractor have now negotiated and agreed upon a construction price for the work and the other terms and conditions to apply to that work.

NOW, THEREFORE, TTD and the Contractor mutually agree as follows:

Section 1. Definitions

As used in this Agreement:

Acceptance or Accepted. The term “Acceptance” and “Accepted” means written notice from TTD indicating that a particular Contractor submittal, plan, or element of the Work appears to comply with the Contract Documents. Acceptance shall not (1) shift any risk to TTD or relieve the Contractor of its obligations or liabilities under the Contract Documents; (2) be construed as a waiver by TTD of any non-compliance or breach by the Contractor; or (3) be construed as a warranty by TTD that the Contractor’s methods will succeed or will be the most efficient or economical method of accomplishing the Work.

Agreement or Construction Contract. The terms “Agreement” and “Construction Contract” mean this Construction Contract for the Project and the Work.

Change. The term “Change” means an alteration, modification, deletion or addition to the Work, this Agreement, or the other Contract Documents.

Change Notice. The term “Change Notice” means a notice from TTD to the Contractor describing a proposed Change, as further described in this Agreement.

Change Order. The term “Change Order” means a written order issued by TTD that directs a Change to the Work or to the Contract Documents.

Changed Work. The term “Changed Work” means a specific element of the Work that is the subject of a Change.

CMAR Fee. The term “CMAR Fee” means the compensation to the Contractor, as applicable, in amounts equal to profit of Enter percent self-performed profit, ex. 8% of the Cost of the Work that is self-performed by the Contractor; profit of Enter percent subcontractor-performed profit, ex. 4% of the Cost of the Work that is performed by Subcontractors; and Enter percent of G&A costs and Overhead, ex. 6% of the Cost of the Work for general and administrative costs, home, branch and regional office overhead (including support staff).

Compensable Delay. The term “Compensable Delay” means an Excusable Delay for which the Contractor is entitled to an equitable adjustment in the Construction Price and Contract Time, as further described in Section 14.

Compensable Event. The term “Compensable Event” means an action or event for which the Contractor is entitled to an equitable adjustment in Construction Price but not Contract Time, as further described in Section 14.

Completion Deadlines. The term “Completion Deadlines” means the dates established in Section 5 for Substantial Completion, Punch List Completion, and Final Acceptance, as the case may be.

Construction Equipment. The term “Construction Equipment" means the equipment, whether owned or rented, provided, and used by the Contractor or its Subcontractors to construct the Work.

Construction Price. The term “Construction Price” means the total not-to-exceed amount, as agreed upon by the Parties, that will potentially be paid by TTD to the Contractor for the completion of the Work, as set forth in Section 6. The Construction Price is the sum of the Cost of the Work, the CMAR Fee, and the Risk Register Account, and constitutes a Guaranteed Maximum Price (GMP).

Contract Documents. The term “Contract Documents” means the entire set of terms, conditions, and requirements that collectively constitute the obligations of the Contractor in the performance of the Work, specifically including the following documents and materials, set forth hereafter in their order of precedence:

1) This Agreement

2) The Exhibits to this Agreement

3) The Special Provisions

4) The Special Technical Specifications

5) NDOT Standard Specifications for Road and Bridge Construction (2014), as amended

6) The Plans

7) NDOT Standard Plans for Road and Bridge Construction (2024)

8) The Pre-Construction Services Agreement

9) Include additional standards or references based on project specifics (e.g., US Forestry Service standards)

Contract Time. The term “Contract Time” means the total number of Working Days, commencing on date specified in the applicable Notice to Proceed listed in Section 2(B), that the Contractor is allowed to achieve Substantial Completion of the Work.

Contractor. The term “Contractor” means Enter Contractor name.

Cost and Schedule Proposal (CSP). The term “Cost and Schedule Proposal” and “CSP” mean the elements required per Section 15(D).

Cost of the Work. The term “Cost of the Work” means the price for time, materials, and related costs of the Work described in Exhibit C hereto.

CPM Schedule. The term “CPM Schedule” means the Contractor’s cost loaded construction schedule that includes the planned sequence of activities showing the interrelationships and dependencies of the elements that comprise the Work, i.e., individual tasks, number of days required to perform each task, and their logical relationship to complete the Work within the Contract Time. The CPM Schedule includes the entire time for the Project, from Notice to Proceed through the Completion Deadlines. The CPM Schedule is attached as Exhibit A.

Day or Days. The terms “Day” or “Days” means calendar days, unless otherwise specifically noted as “Working Days”.

DBE Performance Plan. The term “DBE Performance Plan” means the Contractor’s plan to meet the disadvantaged business enterprise (DBE) goals and requirements for the construction of the Project, attached as Exhibit G.

Deficient and Deficiency. The terms “Deficient” and “Deficiency” mean any defect, unapproved deviation, omission, or other problem, relating to materials, workmanship, or construction, that results in the Work (or a specified portion thereof) not complying with the Contract Documents.

Differing Site Conditions. The term “Differing Site Conditions” means sub-surface and/or latent conditions encountered at the Worksite which differ materially from those shown on the Plans or ordinarily encountered in the area of the Project.

Excusable Delay. The term “Excusable Delay” means an act or event that causes an identifiable and measurable delay or disruption in the CPM Schedule and serves as the basis for an extension in Contract Time, as further described in Section 14.

FHWA. The term “FHWA” means the Federal Highway Administration.

Final Acceptance. The term “Final Acceptance” means written notice from TTD accepting the Work and determining that all required tasks and elements of the Work have been completed in compliance with the requirements and standards in the Contract Documents, as evidenced in the Notice of Completion issued by TTD.

Float. The term “Float” means the difference between the early completion time and the late completion time for an activity on the CPM Schedule. Neither the Contractor nor TTD shall own the Float or any activity or group of activities in the schedule.

Force Majeure. The term “Force Majeure” means an extraordinary and unforeseen event or circumstance that is beyond the control of the Contractor, not due to any act or omission by the Contractor, and could not have been avoided by the exercise of due diligence by the Contractor, including but not limited to war, riot, crime or criminal acts, terrorism, epidemic, weather, labor disturbances, acts of a public enemy (foreign or domestic), or an event described by the legal term “act of God” (i.e., flood, tornadoes, earthquakes, volcanic eruption, discovery of a threatened or endangered species, or other unforeseeable conditions of nature), that prevents the Contractor from fulfilling its obligations under this Agreement.

Goods. The term “Goods” means equipment, materials, and products incorporated into or necessary to perform the Work, or otherwise furnished by the Contractor or Subcontractor in accordance with the Contract Documents.

Governing Body of TTD. The term “Governing Body of TTD” refers to the elected representatives on the TTD Board of Directors listed on TTD’s public website , who make up the voting membership of TTD.

Guaranteed Maximum Price (GMP). The term “Guaranteed Maximum Price (GMP)” means the maximum amount agreed upon by TTD and the Contractor for performance of all of the Work, absent Change Orders. The Contractor will be compensated for the agreed upon costs of the work, plus a fee, subject to a ceiling price, as authorized in NRS 338.1696.

Hazardous Material. The term “Hazardous Material” means any substance, product, waste, or other material, such as hydrocarbon products or asbestos, that is defined as “hazardous material”, “hazardous substances”, or “hazardous waste” under any applicable Federal or State statute or regulation.

Key Personnel. The term “Key Personnel” means the Contractor’s personnel identified in Exhibit E.

NDOT. The term “NDOT” means the Nevada Department of Transportation.

Notice of Completion. The term “Notice of Completion” means the notice from TTD to the Contractor reflecting TTD’s determination that the requirements for Final Acceptance have been satisfied, as further described in this Agreement.

Notice to Proceed (NTP). The terms “Notice to Proceed (NTP)” means written notice from TTD to the Contractor authorizing and directing the Contractor to proceed with the Work (or a specific portion thereof) under this Agreement, as further described in Section 2(B).

Parties. The term “Parties” means TTD and the Contractor.

Plans. The term “Plans” means the plans, profiles, design drawings, diagrams and design specifications which describe and delineate the standards and criteria for the Work.

Pre-construction Services Agreement. The term “Pre-construction Services Agreement” means the agreement between TTD and the Contractor for the Pre-construction Services.

Pre-construction Services. The terms “Pre-construction Services” means the services performed by the Contractor during the pre-construction phase of the Project pursuant to the Pre-construction Services Agreement

Project. The term “Project” means the Enter Project Name.

Public Work. The term “Public Work” has the meaning given that term in NRS 388.010.

Punch List. The term “Punch List” means the list of items, as established by TTD, which remain to be completed after Substantial Completion and constitute a condition on Final Acceptance. Punch List items are generally limited to minor incidental items of Work that must be completed as a condition of meeting all Agreement requirements, but have no adverse impact on safety, use, or operability of the Project.

Punch List Completion. The term “Punch List Completion” means the completion of all Punch List items established at Substantial Completion as pre-requisitions to Final Acceptance of the Work.

Request for Change (RFC). The terms “Request for Change” and “RFC” mean Contractor-requested Changes, as further described in this Agreement.

Risk Register Account. The term “Risk Register Account” means the sum of all costs plus approved mark-up associated with each Risk Register Event listed in Exhibit D as administered in accordance with Section 6(D).

Risk Register Events. The term “Risk Register Event” means the events, occurrences, or other items listed in Exhibit D hereto that may be the basis for a payment from the Risk Register Account as either “Risk Reserve – Provisional” items or “Risk Reserve” items.

Construction Engineering Service Provider. The term “Construction Engineering Service Provider” means TTD’s construction engineering consultant that is responsible for construction engineering and inspection of the Project.

TTD Executive Director. The term “TTD Executive Director” means the Executive Director of TTD or the person designated in writing by the TTD Executive Director to carry out his or her duties under this Agreement.

TTD Project Manager. The term “TTD Project Manager” means the individual designated by the TTD Executive Director to oversee the Work and administer TTD’s responsibilities under this Agreement.

State. The term “State” means the State of Nevada.

Subcontractor. The term “Subcontractor” means any person or entity that is performing a portion of the Work under an agreement with the Contractor, and includes subcontractors at any tier.

Subcontracting Plan. The term “Subcontracting Plan” means the Contractor’s plan setting forth the program that the Contractor will follow in establishing the bid/proposal packages, establishing pre-qualification requirements, qualifying subcontractors, and selecting Subcontractors for the construction of the Project, attached as Exhibit F.

Substantial Completion. The term “Substantial Completion” means completion of the Work (other than Punch List items) to the point at which the Project can be safely and effectively used by the public without further delays, disruption, or other impediments.

Supplier. The term “Supplier” means a person that supplies equipment, materials, or other Goods to the Contractor or a Subcontractor for the Project, but does not include a person who only transports or delivers Goods or other materials to the Site.

Time Related Overhead and TRO. The terms “Time Related Overhead” and “TRO” mean Project office costs, Key Personnel, on-Site construction supervisory staff, on-Site administrative staff, and other specifically enumerated indirect and overhead costs associated with the time to perform the Work that are not included in the direct Cost of the Work in Exhibit C or in the CMAR Fee. TRO rates are set forth in Exhibit C.

Third Party. The term “Third Party” means the City of XXXXX, City of XXXXXX, Douglas County, Washoe County, and any other government entity that enters into an agreement with TTD relating to the Project or that has an approval role or other jurisdiction over any element of the Work.

Work. The term “Work” means all of the administrative, professional, management, construction, capital improvement, services, and other duties and obligations to be furnished and provided by the Contractor for the Project, including all labor, Goods, materials, and equipment necessary to perform such Work in accordance with all requirements in this Agreement and the other Contract Documents.

Working Day. The term “Working Day” means a calendar day on which weather and other conditions not under the control of the Contractor will permit construction operations to proceed for the major part of the day (at least five (5) hours) with the normal working force engaged in performing the controlling item or items of Work which would be in progress at that time, exclusive, however, of Saturdays, Sundays, State recognized holidays, and any day that is incumbent upon the Contractor, by means of a labor agreement, to observe as a holiday. However, if the Contractor elects to work on such days, those days will be considered as a Working Day, unless the Contractor, with advance notice to TTD, elects to work on such a day to recover schedule and not treat it as a Working Day, subject to the conditions of Section 5(G).

Working Day Calendar. The term “Working Day Calendar”” means the calendar of Working Days available to the Contractor within which the Contractor must achieve Substantial Completion of the Work.

The Working Day Calendar is attached as Exhibit B.

Worksite and Site. The terms “Worksite” and “Site” mean the area described in the Contract Documents for the performance of the Work, and includes (1) areas used as laydown and staging areas for the Project; (2) areas used for the storage of Project Goods and materials; (3) field or Project office sites; and

(4) vehicles used on the Site or for travel to and from the Site.

Section 2. Notice of Award and Notice to Proceed

2(A) Notice of Award.

After this Agreement is approved by Governing Body of TTD, TTD will issue a Notice of Award to the Contractor, conditioned and contingent upon Contractor’s submittal, and TTD’s Acceptance, of the following (most of which TTD should already have received at the time of the Notice of Award):

(1) The Proprietary Pricing Documents required under Section 25;

(2) The CPM Schedule required under Section 5;

(3) The certificates of insurance required under Section 10;

(4) The Performance Bond required under Section 11(A);

(5) The Labor and Materials Payment Bond required under Section 11(B); and

(6) An executed copy of this Agreement.

2(B) Notice to Proceed.

(1) [NTP#X – Enter reason for early NTP, ex. Permitting]. Following TTD’s issuance of the Notice of Award under Subsection 2.A, TTD will issue NTP#1. Upon receipt of NTP#1, the Contractor shall commence the activities required to obtain the permits necessary to perform the Work, together with other associated early activities. Or

(2) NTP#X – Construction. Following the receipt of all permits necessary for the Work, TTD will issue NTP#X. Upon receipt of NTP#X, the Contractor shall commence the construction Work and take all steps reasonably necessary to achieve the Completion Deadlines. The Contract Time shall commence on the date specified in this Notice to Proceed.

(3) Limitation. The Contractor may not commence any Work prior to issuance and receipt of a Notice to Proceed. In the Notice to Proceed, TTD may identify certain elements or portions of the Work where initiation of activities may be limited or deferred.

2(C) TTD Project Manager.

The TTD Executive Director will identify the TTD Project Manager, TTD Construction Engineering Service Provider, and the primary consultant firms responsible for construction/project management services. The TTD Executive Director reserves the right to change the TTD Project Manager during the course of this Agreement. The TTD Project Manager will be responsible for the supervision, direction, control, and approval of the Work under this Agreement, except to the extent that TTD Executive Director assigns specific responsibilities to TTD Construction Engineering Service Provider and provides the Contractor with prior written notice thereof. The Contractor shall not take any action on the basis of direction from any TTD employee or agent other than TTD Project Manager or TTD Construction Engineering Service Provider, acting within the scope of their respective authority, and if the Contractor does take any such action it shall proceed at its own risk and expense.

Section 3. Scope of Work

The Contractor shall furnish all the Goods, materials, appliances, tools, and labor of every kind required, and shall construct, perform, and complete in the most substantial and skillful manner, all the Work on or before the Completion Deadlines in Section 5, for the Construction Price set forth in Section 6, and in accordance with all other requirements in this Agreement and the other Contract Documents.

Section 4. Compliance with Contract Documents; Project Meetings

4(A) Requirements for the Work.

All Work of the Contractor shall be performed and completed in accordance with this Agreement and the other Contract Documents.

4(B) Project Meetings.

TTD and the Contractor shall conduct regular Project meetings, on a weekly basis, in accordance with the Contract Documents. The meetings shall be attended by the Contractor’s Key Personnel and by other Contractor personnel as appropriate and directed by TTD. The meetings shall address current Project issues and shall include a review and update of the Contractor’s progress in meeting the CPM Schedule.

TTD or its consultant shall prepare minutes of all Project meetings and submit them to the Contractor.

The Contractor shall review the minutes and provide any suggested clarifications or revisions.

4(C) Conflicts, Ambiguities, Errors or Omissions in Contract Documents.

The Contractor agrees that it has reviewed and accepted the Contract Documents as complete and that it has no right to (1) any Change Orders for schedule relief, extra work, or other costs of any kind whatsoever (including, without limitation, direct and indirect costs, delay and disruption damages, overhead, profit or mark-up) incurred as a result of or relating to conflicts, ambiguities, errors or omissions in the Contract Documents or in Subcontractor bid packages, or (2) any Change Orders arising from a Subcontractor’s performance. The cost of extra work resulting from conflicts, ambiguities, errors, or omissions in the Contract Documents or in the Subcontractor bid packages or arising from a Subcontractor’s performance shall be at the Contractor’s sole expense and shall be paid by the Contractor without reimbursement by TTD.

(1) Required Actions of Contractor. In any case in which the Contractor believes there is an ambiguity in the Contract Documents, the Contractor shall immediately submit that matter to the TTD Project Manager, who will clarify or adjust the same, in his or her reasonable discretion, and his or her decision in relation thereto will be final and conclusive upon the Parties.

(2) Determinations by TTD. If at any time the TTD Project Manager determines that an inconsistency or conflict exists in the Contract Documents, including inconsistencies relating to construction materials or use of equipment, the TTD Project Manager will determine the controlling requirements and instruct the Contractor to comply with such requirements. Promptly following receipt of such instructions, the Contractor shall submit its plan for compliance to TTD Project Manager.

(3) Disputes. In the event that the Contractor disagrees with the TTD Project Manager’s determination under this Subsection, the Contractor shall have the right to submit the issue to issue/dispute resolution under Section 23, but shall in all cases proceed with the Work in compliance with the TTD Project Manager’s determination and instructions pending resolution of the dispute.

Section 5. Project Schedule

5(A) Contract Time.

Time is of the essence in this Agreement. Contract Time shall commence on the date specified in the Notice to Proceed listed in Section 2. The Contractor agrees to commence Work promptly, and to perform

Work diligently and in a timely manner in accordance with the CPM Schedule, as Accepted by TTD, and to complete the Work in accordance with each of the Completion Deadlines. The Contractor shall not perform any Work prior to receipt of the Notice to Proceed.

5(B) CPM Schedule.

By the time specified in Subsection A, the Contractor shall prepare and submit to TTD, for its review and Acceptance, the CPM Schedule required under this Agreement and the other Contract Documents. The CPM Schedule shall (1) indicate planned milestone dates for completing all tasks required for the Work;

(2) include delivery dates for all required Contractor plans, programs, and other deliverables: and (3) provide dates for TTD inspections and Acceptances. Following TTD’s Acceptance of the CPM Schedule, the Contractor shall submit monthly reports to TTD, which shall include a comparison of the actual schedule to the CPM Schedule. The CPM Schedule, as Accepted by TTD, is a binding part of this Agreement, and will become Exhibit A hereto. TTD’s Acceptance of the CPM Schedule shall not operate to modify any of the Completion Deadlines.

5(C) Completion Deadlines.

The Contractor shall carry out and complete the Work in accordance with the following Completion Deadlines:

(1) Substantial Completion Deadline. The Contractor shall achieve Substantial Completion of the Work within Enter number of working days, ex. two-hundred thirteen (213) Working Days from the issuance of the Notice to Proceed pursuant to the Working Day Calendar.

(2) Punch List Completion Deadline. Following Substantial Completion, the Contractor shall complete all the items on the applicable Punch List and achieve Punch List Completion within thirty (30) Working Days after the date on which Substantial Completion occurs.

(3) Final Acceptance Deadline. The Contractor shall achieve Final Acceptance Enter days (X0) Days after the date on which Punch List Completion of the Project occurs.

5(D) Changes to CPM Schedule.

Following TTD’s Acceptance of the CPM Schedule, no changes to the CPM Schedule may be made without the Acceptance of TTD. If any requested change to the CPM Schedule is not Accepted by TTD, the Contractor acknowledges that the CPM Schedule shall be maintained.

5(E) Delays.

(1) Notice Requirement. When the Contractor has knowledge that any actual or potential situation will delay or threaten to delay the timely performance of the Work in accordance with the CPM Schedule, the Contractor shall, within five (5) Days, give written notice thereof to TTD, including all relevant information concerning the actual or potential delay.

(2) Recovery Schedule. If the delay noticed under Paragraph (1) may delay the completion of the Work by the Completion Deadlines, then the Contractor shall, within ten (10) Days after its delay notice, prepare and submit to TTD, for its review and approval , a Recovery Schedule demonstrating the Contractor’s proposed plan for regaining lost time, minimizing the impact of delay events, and achieving the original CPM Schedule milestones to the maximum extent feasible. Upon TTD’s Acceptance of the Recovery Schedule, the Contractor shall incorporate such schedule into a revised CPM Schedule and deliver it to TTD.

5(F) Extensions in Time.

In the event of an Excusable Delay, the time for the performance of the Work may be extended by a Change Order issued in accordance with this Agreement, or by a written amendment to this Agreement.

Except for Excusable Delays and/or Compensable Delays, TTD shall have no obligation to extend a Completion Deadline, and the Contractor shall not be relieved from its obligation to meet all Completion Deadlines.

5(G) Use of Non-working Days.

If the Contractor desires to Work on a Day not identified in the Working Day Calendar, the Contractor shall request approval to Work from TTD, an approval of which shall not be unreasonably withheld. Upon approval, TTD may charge the Contractor for all expenses incurred by TTD’s service providers or other related costs plus a mark-up equal to five percent (5%) to account for TTD’s administrative and staffing expenses, deducting the cost from any moneys due or to become due the Contractor and/or obtain reimbursement from the Contractor for such cost. If approval is granted in accordance with this Section, any added Day(s) for Work will not provide the Contractor with relief from any otherwise applicable liquidated damages for failure to meet a Completion Deadline.

Section 6. Construction Price

6(A) Agreement on Construction Price.

TTD and the Contractor have agreed upon a Construction Price for completion of all elements of the Work in a total amount not-to-exceed Enter Construction Price $. The Construction Price is a Guaranteed Maximum Price (GMP), which consists of the following: (1) the Cost of the Work in the amount of Enter Cost of the Work $ plus the CMAR Fee in the amount of Enter CMAR Fee $, for a total lump sum amount of Enter Sum of the Cost of the Work plus the CMAR Fee $; and (2) a Risk Register Account in the amount of Enter Risk Register Account $.

6(B) Key Principles of Construction Price.

The key principles governing the Construction Price are as follows:

(1) Nature of Price. The Construction Price set forth in Subsection 6(A) is the maximum amount payable to the Contractor for the Work, absent the issuance of a Change Order in accordance with this Agreement. However, the Contractor is not guaranteed payment of the full amount of the Construction Price. The amount actually paid to the Contractor may be lower than the Construction Price due to factors such as (a) the total amount in the Risk Register Account is not needed; or (b) the price is reduced through deductive Change Orders.

(2) CMAR Fee. The amount reimbursable under this Agreement for the CMAR Fee will be the amount set forth in Subsection 6(A)(1) above, provided that if the Contractor defaults or this Agreement is otherwise terminated such that the Work is not completed, TTD will make an appropriate pro rata reduction in the amount of the CMAR Fee.

(3) Federal Cost Principles. TTD shall only reimburse the Contractor for costs that are consistent with Federal cost principles. See 23 C.F.R. 172.9; 2 C.F.R. Part 200, Subpart E.

6(C) Items Included in Construction Price.

Except as modified by TTD-executed Change Orders, the Construction Price in Subsection (6)A hereof is the maximum amount to be paid to the Contractor for all costs necessary to complete the Work, whether stated or reasonably implied in this Agreement or the other Contract Documents, including:

(1) Direct construction costs, including all labor (including salaries, wages, and benefits), Goods, materials, equipment, supplies, small tools, and any other direct associated costs without limitation;

(2) The performance of each and every portion of the Work;

(3) Indirect costs including general conditions, supervision, insurance/bonding, project office expenses, taxes, mobilization, and quality control costs;

(4) The cost of obtaining all government permits and approvals (other than those that are the responsibility of TTD);

(5) The costs of all risks, contingencies, and liabilities assigned to the Contractor under the Contract Documents;

(6) The cost of compliance with all applicable Federal and State laws and regulations and all applicable local ordinances;

(7) The payment of all taxes, duties, transport costs, and permit costs associated with the Work;

(8) The CMAR Fee; and

(9) The costs of Risk Register Events up to the amount of the Risk Register Account.

6(D) Use of Risk Register Account.

The Risk Register Account shall be available for the Risk Register Events identified in Exhibit D. The Risk Register Events may have a cost impact, schedule impact, or both. With the exception of a Risk Register Event that has a specified payment cap, the amount paid in connection with a specific Risk Register Event may be less than or greater than the amount stipulated for that Risk Register Event in Exhibit D, but the total amount paid for all Risk Register Events may not exceed the total amount in the Risk Register Account, as set forth in Subsection 6(A)(2) above. Any payment from the Risk Register Account shall require the prior written approval of TTD. A Risk Register Event that has a material effect on the CPM Schedule may be the basis for an Excusable Delay under Section 14 of this Agreement, if the Contractor satisfies the requirements for a Change Order under Sections 14 and 15 hereof.

(1) “Risk Reserve – Provisional” Items. The Contractor may make application to TTD for payment from the Risk Register Account in accordance with the specifications in Exhibit D.

(2) “Risk Reserve” Items. If such a Risk Register Event occurs during performance of the Work, the Contractor may make application to TTD for payment from the Risk Register Account in accordance with the following:

(a) Any such request shall be accompanied by such cost and pricing data and other supporting information as TTD may reasonably require, including a Cost and Schedule Proposal as described in Section 15.

(b) Costs shall be calculated in accordance with the provisions for establishing costs associated with a Change under Section 16 hereof.

(c) The basis for compensation for Risk Register Events may be lump sum price, unit prices, or time and materials, as determined by TTD Project Manager.

(d) The Risk Register Account may only be used for eligible project costs that satisfy the cost principles in Subsection 6(B)(3) above.

(3) Relation to Change Orders. The Contractor shall not be eligible for a Change Order under Section 14 if the event forming the basis for such requested Change Order is an identified Risk Register Event.

6(E) Cost Overruns.

If the Contractor incurs costs in excess of the Construction Price (as it may be modified by Change Orders), the Contractor shall be solely responsible for the payment of those costs and shall not be entitled to any additional compensation from TTD, unless the event giving rise to those excess costs constitutes a Compensable Event or Compensable Delay under Section 14 hereof and the Contractor otherwise satisfies the requirements for a Change Order under that Section. The Contractor acknowledges that it (1) bears the full economic risk of any cost overruns on the Project; (2) will have no ability to recover cost overruns from TTD for any reason; and (3) cost overruns may exceed any profits the Contractor expects to realize on the Project.

Section 7. Invoicing and Payment Provisions

7(A) Submittal and Payment.

The Contractor shall submit monthly invoices to TTD. Invoices must be submitted to the TTD Project Manager. TTD shall pay invoices (except for any contested portion thereof) within thirty (30) Days after receipt of a proper invoice from the Contractor:

7(B) Contents.

Invoices shall contain the following information:

(1) The Agreement Name and Purchase Order Number.

(2) The specific elements of the Work that were performed during the prior month or other applicable period.

(3) Any milestones achieved during the prior month.

(4) Progress of the Work, as measured under the CPM Schedule.

(5) A separate identification of any additional Work outside the original scope of Work (i.e., additional scope), which has been authorized in a Change Order, with a reference to the Change Order.

(6) A separate identification of any approved use of the Risk Register Account for “Risk Register” items, with the prior written approval attached.

(7) A separate identification of any use of the Risk Register Account for “Risk Reserve – Provisional” items.

7(C) Progress Payments.

(1) Payments for Progress of Work. As the Work progresses in accordance with this Agreement and in a manner that is satisfactory to TTD, TTD hereby agrees to make periodic payments to the Contractor for Work completed based upon a progress payment schedule and Schedule of Values, which progress payment schedule shall be initially submitted by the Contractor within fifteen (15) Days after the Notice to Proceed that commences the Contract Time (see Section 2(B)). The Contractor shall, once in each month and on such day as may be agreed upon by the Contractor and TTD, make a progress report of Work done and of material which has actually been put in place in accordance with the terms and conditions of this Agreement during the preceding month and compute the value thereof.

(2) Mobilization. TTD will pay the Contractor the amount included in the Construction Price for mobilization in three (3) equal amounts, as part of the Contractor’s first three (3) applications for progress payments. TTD may, in its sole discretion, withhold all or a portion of such mobilization payments until it has received and Accepted the CPM Schedule under Section 5 hereof.

7(D) Retention.

(1) Amount of Retention. TTD shall withhold, from each progress payment, retention of five percent (5%) of the amount billed as part of the security for the fulfillment of requirements of this Agreement and completion of the Work. After fifty (50%) of the Work, as calculated under the Schedule of Values comprising the Cost of the Work, as identified in Exhibit C, has been completed in an acceptable manner, TTD may, in its discretion, reduce the retention from future progress payments to less than two and half percent (2.5%) or elect to no longer withhold retention. Any retention remaining in the possession of TTD upon Final Acceptance shall be released to the Contractor when all requirements for final payment under Subsection 7(G) hereof have been satisfied and when the Contractor has executed the written release required under subsection H hereof.

(2) Interest. Amounts retained by TTD under Paragraph (1) shall be deposited in an interest bearing account. TTD will pay interest to the Contractor on such deposited amounts, at the end of each quarter throughout the Work, at the rate provided in NRS Chapter 338 for interest payments on retention in Public Works projects. The Contractor, shall, within ten (10) Days after receipt of such interest payments from TTD, pay to each Subcontractor that portion of the interest to which it is due under NRS

338.550. No interest will be paid on funds withheld for defective work not remedied, on funds held as a result of third party claims for failure to make proper payments to Subcontractors or Suppliers for labor, Goods, materials, or equipment, including work, Goods, materials, or equipment still to be furnished or installed.

7(E) Reservation of Rights.

(1) Right to Withhold and Recover. TTD shall have the right to withhold payment, or to recover funds from amounts paid, for any Work (or portion thereof) not performed in accordance with this Agreement or the other Contract Documents, for any Work found Deficient, for any Work not supported by appropriate documentation or other information, or for any Work that is the subject of a dispute between the Contractor and TTD. TTD may charge the Contractor for all expenses incurred by TTD’s service providers or other related costs plus a mark-up equal to five percent (5%) to account for TTD’s administrative and staffing expenses. TTD also may withhold all or any portion of a progress payment otherwise due if and for so long as the Contractor does not comply with any lawful or proper direction concerning the Work or material given by TTD Project Manager, or for the failure of the Contractor to submit a Recovery Schedule in accordance with Section 5(E)(2). TTD shall notify the Contractor of any such withholding and provide the Contractor the opportunity to correct the Work in question or to correct or supplement the invoice, as applicable. TTD shall also have the right to withhold payment, or recover funds from amount paid, for any costs that are not consistent with Federal cost principles. See 23 C.F.R.

172.9; 2 C.F.R. Part 200, Subpart E. No Waiver.

(2) No Waiver. Neither payment of amounts due by TTD nor acceptance of any such payment by the Contractor shall constitute a waiver of any claim by TTD for errors or omission in invoices or payments.

(3) Audits. TTD may also make an adjustment to the amount due the Contractor on the basis of the results of an audit conducted by TTD or its representatives.

7(F) Prompt Payment to Subcontractors.

(1) Requirement. The Contractor shall comply with the prompt payment to Subcontractors requirements set forth in NRS Chapter 338, 49 CFR Part 26, and the “Prompt Payment and Retainage Clause” in Exhibit J.

(2) Payment for Satisfactory Work. The Contractor shall make payment to each Subcontractor for satisfactory performance of its Work no later than ten (10) Days after receipt of payment from TTD that covers that Work. For purposes of this Subsection, “satisfactory performance” means that all of the tasks called for in the applicable Subcontract have been satisfactorily accomplished and completed by the Subcontractor and all conditions listed in the “Prompt Payment and Retainage Clause” of Exhibit J have been met.

(3) Subcontractor Retention. The percentage of retention withheld from each Subcontractor may not exceed the percentages specified in Subsection 7(D) above. After satisfactory performance of a Subcontractor’s Work, the Contractor shall make full payment of such Subcontractor’s retainage within ten (10) Days after TTD releases such retainage to the Contractor.

(4) No Retainage. If TTD does not withhold retainage from the Contractor, the Contractor may not withhold retainage from its Subcontractors.

(5) Delay in Payment. The Contractor may only delay or postpone any payment obligation to any of its Subcontractors for services provided under this Agreement if the Contractor demonstrates to the satisfaction of TTD that good cause exists for such a delay or postponement. Any concurrence by TTD that good cause exists for the delay or postponement of the Contractor’s payment obligation to its Subcontractor must be made in writing prior to the time when payment to the Subcontractor would have been otherwise due.

7(G) Submittal of Deliverables and Final Payment.

The Contractor agrees that its right to receive the final payment pursuant to this Agreement is contingent upon:

(1) Submittal of all deliverables due and completion of all Work required under the scope of Work;

(2) TTD’s determination that (a) such deliverables and Work satisfy the requirements of this Agreement and the other Agreement Documents; and (b) any overpayment or unsubstantiated billing or payment has been reconciled to the satisfaction of TTD;

(3) TTD’s filing of a Notice of Completion for the Project; and

(4) The Contractor’s execution of a release in accordance with Subsection 7(H) of this Section.

If TTD fails to make such determinations and does not approve any or all such deliverables, the Contractor shall revise the deliverables or correct the Work to TTD’s satisfaction and approval, at no additional expense to TTD. TTD shall have the right to withhold, in its reasonable discretion, any or all of the Contractor’s final payment until TTD approves all of Contractor’s deliverables.

7(H) Execution…