USNH CD500 & CD500 Amendment.pdf

ConsensusDocs® 500 - Standard Agreement and General Conditions Between Owner and Construction Manager (CM At-Risk) © 2011, Revised September 2018. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel are strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

University System of New Hampshire/ConsensusDocs® 500

STANDARD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND

CONSTRUCTION MANAGER (Where the CM is At-Risk)

TABLE OF ARTICLES

1. AGREEMENT

2. GENERAL PROVISIONS

3. CONSTRUCTION MANAGER'S RESPONSIBILITIES

4. OWNER'S RESPONSIBILITIES

5. SUBCONTRACTS

6. TIME

7. COMPENSATION AND GUARANTEED MAXIMUM PRICE

8. COST OF THE WORK

9. CHANGES

10. PAYMENT

11. INDEMNITY, INSURANCE, AND BONDS

12. SUSPENSION, NOTICE TO CURE, AND TERMINATION

13. DISPUTE MITIGATION AND RESOLUTION

14. MISCELLANEOUS

15. CONTRACT DOCUMENTS

ARTICLE 1 AGREEMENT

Contract Number: [_____] Project ID: [_____]

This Agreement is between the

OWNER,

(Name, legal status and address) and the

CONSTRUCTION MANAGER,

(Name, legal status and address) for construction and services in connection with the following

ConsensusDocs® 500 - Standard Agreement and General Conditions Between Owner and Construction Manager (CM At-Risk) © 2011, Revised September 2018. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel are strongly encouraged. You may only make copies of finalized documents for distribution to parties in

PROJECT.

(Name and address or location)

Design Professional is.

(Name, legal status and address)

The Owner’s Designated Representative: [_____] (Name, address and other information)

The Construction Manager’s Designated Representative:

(Name, address and other information)

The Design Professional’s Designated Representative:

(Name, address and other information)

ARTICLE 2 GENERAL PROVISIONS

2.1 PARTIES’ RELATIONSHIP Each Party agrees to act on the basis of mutual trust, good faith, and fair dealing, and perform in an economical and timely manner. The Parties shall each endeavor to promote harmony and cooperation among all Project participants.

2.1.1 Construction Manager represents that it is an independent contractor and that it is familiar with the type of Work it is undertaking.

2.1.2 Neither Construction Manager nor any of its agents or employees shall act on behalf of or in the name of Owner except as provided in this Agreement unless authorized in writing by Owner's Representative.

ConsensusDocs® 500 - Standard Agreement and General Conditions Between Owner and Construction Manager (CM At-Risk) © 2011, Revised September 2018. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel are strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

2.1.3 In accordance with the specific requirements of the Contract Documents set forth below, the Owner agrees to furnish or approve, in a timely manner, information required by the Construction Manager and to make payments to the Construction Manager.

2.2 ETHICS Each Party shall perform with integrity. Each shall: (a) avoid conflicts of interest, and (b) promptly disclose to the other Party any conflicts that may arise. Each Party warrants that it has not and shall not pay or receive any contingent fees or gratuities to or from the other Party, including its agents, officers, employees, Subcontractors, Sub-subcontractors, Suppliers, or Others to secure preferential treatment.

2.3 DESIGN PROFESSIONAL

2.3.1 Owner, through its Design Professional, shall provide all architectural and engineering design services necessary for the completion of the Work excluding, however, (a) design services delegated to Construction Manager in accordance with §3.17, and (b) services within the construction means, methods, techniques, sequences, and procedures employed by Construction Manager, its Subcontractors, and Sub-subcontractors in connection with their construction operations.

2.3.2 If requested in writing, the Owner shall provide the Construction Manager a copy of the executed agreement between the Owner and the Design Professional, and any further modifications to the agreement

2.3.3 Owner shall obtain from Design Professional either a license for Construction Manager and Subcontractors to use the design documents prepared by Design Professional or ownership of the copyrights for such design documents, and shall indemnify and hold harmless Construction Manager against any suits or claims of infringement of any copyrights or licenses arising out of the use of the design documents for the Project.

2.3.4 The Owner’s agreement noted in §2.3.2 shall allow the Construction Manager, Subcontractors, Sub-subcontractors, and material or equipment suppliers to use and reproduce applicable portions of the Drawings, Specifications and other documents prepared by the Design Professional and the Design Professional’s subconsultants for use in the execution of their Work under the Contract Documents. All copies made under this authorization shall bear the statutory copyright notice, if any, shown on the Drawings, Specifications and other documents prepared by the Design Professional and the Design Professional’s subconsultants.

2.3.5 Submittal or distribution to meet official regulatory requirements or for other purposes in connection with this Project is not to be construed as publication in derogation of the Design Professional’s or Design Professional’s subconsultants’ copyrights or other reserved rights.

2.4 DEFINITIONS

2.4.1 “Agreement” means this University System of New Hampshire/ConsensusDocs 500 Standard Agreement and General Conditions Between Owner and Construction Manager, as modified, and exhibits and attachments as listed in ARTICLE 15.

2.4.2 “Business Day” means all Days, except weekends and official federal or state holidays where the Project is located.

2.4.3 A “Change Order” is a written order signed by the Parties after execution of this Agreement, indicating changes in the scope of the Work, the GMP and Date of Substantial Completion or Date of Final Completion, including substitutions proposed by Construction Manager and accepted by Owner.

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2.4.4 The “Contract Documents” consist of (a) this Agreement; (b) documents listed in §15.1 as existing contract documents; (c) drawings, specifications, addenda issued and acknowledged before execution of this Agreement; (d) information furnished by Owner pursuant to §3.15.4, and (e) Change Orders, Interim Directives, and amendments issued in accordance with this Agreement.

2.4.5 “Contract Time” is the period between the Date of Commencement and the total time authorized to achieve Final Completion.

2.4.6 “Cost of the Work” means the costs and discounts specified in ARTICLE 8.

2.4.7 The “Construction Manager” is the person or entity identified in ARTICLE 1 and includes Construction Manager's Representative.

2.4.8 “Date of Commencement” means the date of commencement of the Construction Phase as identified in the notice to proceed.

2.4.9 “Day” means a calendar day.

2.4.10 “Defective Work” is any portion of the Work that does not conform with the requirements of the Contract Documents.

2.4.11 “Design Professional” means the licensed architect or engineer, and its consultants, retained by Owner to perform design services for the Project.

2.4.12 “Final Completion” occurs on the date when Construction Manager's obligations under this Agreement are complete and accepted by Owner and final payment becomes due and payable. This date shall be confirmed by a Certificate of Final Completion signed by the Parties.

2.4.13 “Hazardous Material” is any substance or material identified now or in the future as hazardous under the Law, or any other substance or material that may be considered hazardous or otherwise subject to statutory or regulatory requirement governing handling, transportation, disposal, or cleanup.

2.4.14 “Interim Directive” is a written order containing change to the Work directed by Owner pursuant to §9.2 and that is signed by Owner after execution of this Agreement and before Substantial Completion.

2.4.15 “Law” means federal, state, or local laws, ordinances, codes, rules, and regulations applicable to the Work with which Construction Manager must comply that are enacted as of the Agreement date.

2.4.16 “Others” means Owner’s other: (a) contractors/constructors, (b) suppliers, (c) subcontractors, sub-subcontractors, or suppliers of (a) and (b); and others employed directly or indirectly by (a), (b), or (c) or individuals for whose acts any of them may be liable.

2.4.17 “Overhead” means (a) payroll costs, burden, and other reasonable compensation of Construction Manager’s employees in Construction Manager's principal and branch offices; and (b) general and administrative expenses of Construction Manager's principal and branch offices.

2.4.18 “Owner” is the person or entity identified in ARTICLE 1 and includes Owner’s representative.

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2.4.19 The “Owner's Program” is an initial description of Owner's objectives, including budgetary and time criteria, space requirements and relationships, flexibility and expandability requirements, special equipment and systems, site requirements, and any requirements for phased occupancy.

2.4.20 The “Parties” are collectively Owner and Construction Manager.

2.4.21 The “Project,” as identified in ARTICLE 1, is the building, facility, or other improvements for which Construction Manager is to perform Work under this Agreement. It may also include construction by Owner or Others.

2.4.22 “Related Party” means a parent, subsidiary, affiliate or other entity having common ownership or management with the Construction Manager; any entity in which any stockholder in, or management employee of, the Construction Manager owns any interest in excess of ten percent in the aggregate; or any person or entity which has the right to control the business or affairs of the Construction Manager. The term “related party” includes any member of the immediate family of any person identified above.

2.4.23 The “Schedule of the Work” is the document prepared by Construction Manager that specifies the dates on which Construction Manager plans to begin and complete various parts of the Work, including dates on which information and approvals are required from Owner.

2.4.24 “Subcontractor” is a person or entity retained by Construction Manager as an independent contractor to provide the labor, materials, equipment, or services necessary to complete a specific portion of the Work. The term Subcontractor does not include Design Professional or Others.

2.4.25 “Substantial Completion” of the Work, or of a designated portion, occurs on the date when the Work is sufficiently complete in accordance with the Contract Documents so that Owner may occupy or utilize the Work, or a designated portion, for the use for which it is intended, without unapproved disruption. This date shall be confirmed by a certificate of Substantial Completion signed by the Parties.

2.4.26 A “Sub-subcontractor” is a person or entity who has an agreement with a Subcontractor or another sub-subcontractor or Supplier to perform a portion of the Subcontractor’s Work or supply material or equipment.

2.4.27 A “Supplier” is a person or entity retained by Construction Manager to provide material or equipment for the Work.

2.4.28 “Terrorism” means a violent act, or an act that is dangerous to human life, property, or infrastructure, that is committed by an individual or individuals and that appears to be part of an effort to coerce a civilian population or to influence the policy or affect the conduct of any government by coercion. Terrorism includes, but is not limited to, any act certified by the United States government as an act of terrorism pursuant to the Terrorism Risk Insurance Act, as amended.

2.4.29 “Work” means the construction and administrative and management services necessary or incidental to fulfill Construction Manager's obligations for the Project in accordance with and reasonably inferable from the Contract Documents. The Work may refer to the whole Project or only a part of the Project if work is also being performed by Owner or Others.

2.4.30 “Worksite” means the area of the Project location as identified in ARTICLE 1 where the Work is to be performed.

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ARTICLE 3 CONSTRUCTION MANAGER'S RESPONSIBILITIES

3.1 GENERAL RESPONSIBILITIES

3.1.1 Construction Manager shall provide all labor, materials, equipment, and services necessary to complete the Work, all of which shall be provided in full accord with the Contract Documents and reasonably inferable from the Contract Documents.

3.1.1.1 The Construction Manager shall be responsible for determining that all materials furnished for the Work meet all requirements of the Contract Documents. If the Design Professional reasonably believes that a material proposed by the Construction Manager, but not specified by brand name and grade or model designation, may not comply with all such requirements, the Design Professional may require the Construction Manager to produce, at the Construction Manager’s expense, reasonable evidence of such compliance. This provision shall not require the Construction Manager to pay for periodic testing of different batches of the same material, unless such testing is specifically required by the Contract Documents to be performed at the Construction Manager’s expense.

3.1.1.2 If a manufacturer’s name, trade name or proprietary designation is used in the Contract Documents in connection with materials or products to be furnished under this Agreement, the Contractor shall furnish the product of the named manufacturer, except as follows:

3.1.1.2.1 Where the words “or equal” are used after such manufacturer’s name, trade name or proprietary designation, Construction Manager proposed substitutions will be accepted only if they are, in the opinion of the Design Professional, proved equal to the specified material or product through the submittal of comparative manufacturer’s information or as otherwise provided in §3.1.1.1. The Construction Manager shall inform the Design Professional in writing of the proposed substitution and request approval thereof prior to or at the time the material or product is submitted for approval. Written approval by the Design Professional shall be required for the acceptance of any such substitution.

3.1.1.2.2 Where the words “or equal” are not used after such manufacturer’s name, trade name or proprietary designation, Construction Manager proposed substitutions may be accepted or rejected whether or not they are or can be, in the opinion of the Design Professional, proved equal to the specified material or product through the submittal of comparative manufacturer’s information or as otherwise provided in §3.1.1.1. The Construction Manager shall inform the Design Professional in writing of the proposed substitution and request approval thereof prior to or at the time the material or product is submitted for approval. Written approval by the Design Professional shall be required for the acceptance of any such substitution.

3.1.1.3 If the Construction Manager proposes to use a material which, while suitable for the intended use, deviates in any way from the detailed requirements of the Contract Documents, the Construction Manager shall inform the Design Professional in writing as to the nature of such deviations at the time the material is submitted for approval, and shall request written approval of the deviation from the requirements of the Contract Documents. Written approval by the Design Professional shall be required for the acceptance of any such deviation.

3.1.1.4 The Contract Documents are intended to produce a building of consistent character and quality of design. All components of the building including visible items of mechanical and electrical equipment have been selected to produce a coordinated design in relation to the overall appearance of the building. The Design Professional will judge the design and

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appearance of proposed substitutes based on their appropriateness in relation to the overall design of the project, as well as for their intrinsic merits. The Design Professional will not approve as equal to materials specified, proposed substitutions which, in the Design Professional’s opinion, would be out of character, obtrusive, or otherwise inconsistent with the character opinion, would be out of character, obtrusive, or otherwise inconsistent with the character or quality of design of the Project. In order to permit coordinated design of color and finishes the Construction Manager shall, if required by the Design Professional, furnish the substituted material in any color, finish, texture or pattern which would have been available from the manufacturer originally specified, at no additional cost to the Owner.

3.1.1.5 Any additional cost, loss, or damage arising from the substitution of any materials or products for those originally specified shall be borne by the Construction Manager, notwithstanding approval or acceptance of such substitution by the Owner or the Design Professional, unless such substitution was made at the written request or direction of the Owner or the Design Professional.

3.1.2 Unless the Contract Documents instruct otherwise, Construction Manager shall solely be responsible for and have control over construction means, methods, techniques, sequences, procedures, site security and safety precautions, and for coordinating all portions of the Work under the Agreement.

3.1.3 Construction Manager shall perform Work only within locations allowed by the Contract Documents, Law, and applicable permits unless otherwise directed by the Owner.

3.2 CONSTRUCTION PERSONNEL AND SUPERVISION

3.2.1 Construction Manager shall provide competent supervision for the performance of the Work.

Before commencing the Work, or when proposing a change in the supervisory personnel, the Construction Manager shall notify Owner in writing of the name and qualifications of its proposed superintendent(s) and project manager, so Owner may review the individual's qualifications. If, for reasonable cause, Owner refuses to approve the individual, or withdraws its approval after giving it, Construction Manager shall name a different superintendent for Owner's review. Any disapproved superintendent shall not perform in that capacity thereafter at the Worksite. The superintendent shall represent the Construction Manager, and communications given to the superintendent shall be as binding as if given to the Construction Manager. The Parties shall use best efforts to confirm communications in writing.

3.2.2 The Construction Manager shall be responsible to the Owner for acts and omissions of the Construction Manager’s employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Construction Manager or any of its Subcontractors.

3.2.3 Construction Manager shall permit only fit and skilled persons to perform the Work.

Construction Manager shall enforce safety procedures, strict discipline and good order among persons performing the Work. If Owner determines that a particular person does not follow safety procedures, or is unfit or unskilled for the assigned work, Construction Manager shall immediately reassign the person on receipt of Owner's written notice to do so.

3.2.4 CONSTRUCTION MANAGER'S REPRESENTATIVE Construction Manager's Representative shall possess full authority to receive instructions from Owner and to act on those instructions.

3.2.5 The Construction Manager shall coordinate and supervise the work performed by Subcontractors to ensure that the Work is carried out without conflict between trades and so that no

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trade, at any time, causes delay to the general progress of the Work. The Construction Manager and all Subcontractors at all times shall afford each trade, any separate contractor, or the Owner, every reasonable opportunity for the installation of their work and the storage of materials, subject to the specific limitations or restrictions of a particular site.

3.3 PRECONSTRUCTION SERVICES The Preconstruction Services under this section are included in Construction Manager's work.

3.3.1 PRELIMINARY EVALUATION Construction Manager shall provide a preliminary evaluation of Owner's Program and report such findings to Owner and Design Professional.

3.3.2 CONSULTATION Construction Manager shall schedule and attend regular meetings with Owner and Design Professional. Construction Manager shall consult with Owner and Design Professional regarding site use and improvements and the selection of materials, building systems, and equipment. Construction Manager shall provide recommendations on construction feasibility;

actions designed to minimize adverse effects of labor or material shortages; time requirements for procurement, installation, and construction completion; and factors related to construction cost, including estimates of alternative designs or materials, and life-cycle data, and possible cost reductions.

3.3.2.1 The Construction Manager shall provide recommendations regarding accelerated or fast-track scheduling, procurement, or phased construction. The Construction Manager shall take into consideration cost reductions, cost information, constructability, provisions for temporary facilities, and procurement and construction scheduling issues.

3.3.3 SCHEDULE OF THE WORK When Project requirements have been sufficiently identified, and within 30 Days of award, Construction Manager shall prepare a preliminary Schedule of the Work for Design Professional's review and Owner's approval. Construction Manager shall coordinate and integrate the Schedule of the Work with the services and activities of Owner, Construction Manager, Design Professional, and the requirements of governmental entities. As design proceeds, Construction Manager shall update the Schedule of the Work to indicate proposed activity sequences, durations, or milestone dates for such activities as receipt and approval of pertinent information, issuance of the drawings and specifications, the preparation and processing of shop drawings and samples, delivery of materials or equipment requiring long-lead-time procurement, Owner's occupancy requirements and estimated date of Substantial Completion of the Project. If Schedule of the Work updates indicate that milestone dates contained in prior Schedules of the Work will not be met, Construction Manager shall notify and make recommendations to Owner. If the Project is to be completed in phases, Construction Manager shall make recommendations to Owner and Design Professional regarding the phased issuance of the drawings and specifications.

3.3.4 ESTIMATES

3.3.4.1 When Owner has sufficiently identified Owner's Program and other Project requirements and Design Professional has prepared other basic design criteria, Construction Manager shall prepare, for the review of Design Professional and approval of Owner, an initial estimate for the Project, utilizing area, volume, or similar conceptual estimating techniques. If the Design Professional or Construction Manager suggests alternative materials and systems, the Construction Manager shall provide cost evaluations of those alternative materials and systems.

3.3.4.2 When schematic or preliminary design documents have been completed by Design Professional and approved by Owner, Construction Manager shall prepare for the review of Design Professional and approval of Owner, a more detailed budget with supporting data.

During the preparation of the design development documents or documents of comparable

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detail, Construction Manager shall update and refine this estimate at appropriate intervals agreed upon by The Parties.

3.3.4.3 When design development documents or documents of comparable detail have been completed by Design Professional and approved by Owner, Construction Manager shall prepare a further detailed estimate with supporting data for review by Design Professional and approval by Owner. During the preparation of the drawings and specifications, Construction Manager shall update and refine this estimate at appropriate intervals agreed upon by the Parties.

3.3.4.4 If any estimate submitted to Owner exceeds previously approved estimates, Construction Manager shall notify and make recommendations to Owner and Design Professional.

3.3.4.5 Construction Manager agrees to use reasonable skill and judgment in the preparation of cost estimates and Schedule of the Work but does not warrant or guarantee their accuracy.

3.3.5 CONSTRUCTION DOCUMENT REVIEW Before starting each design phase, and at frequent intervals during the design process, Construction Manager shall review the drawings and specifications to identify potential constructability problems that could impact Construction Manager's ability to perform the Work in an expeditious and economical manner. Construction Manager shall issue a report to Design Professional and Owner for their review and action as appropriate. In addition, Construction Manager shall promptly report to Owner and Design Professional any errors or omissions which it discovers in the drawings and specifications.

3.3.6 TEMPORARY FACILITIES Construction Manager shall make recommendations regarding temporary construction facilities, equipment, materials, and services for common use by Construction Manager, its Subcontractors, Sub-subcontractors, and Suppliers.

3.3.7 LONG-LEAD-TIME ITEMS Construction Manager shall recommend to Owner and Design Professional a schedule for procurement of long-lead-time items which will constitute part of the Work as required to meet the Schedule of the Work. Construction Manager shall help expedite the delivery of long-lead-time items. If the Owner agrees to procure any items prior to the establishment of the Guaranteed Maximum Price, the Owner shall procure the items on terms and conditions acceptable to the Parties. Upon the establishment of the Guaranteed Maximum Price, the Owner shall assign all contracts for these items to the Construction Manager and the Construction Manager shall thereafter accept responsibility for them.

3.3.8 SOLICITATION OF SUBCONTRACTORS AND SUPPLIERS Construction Manager shall seek to develop Subcontractor interest in the Project and shall furnish to Owner and Design Professional a list of possible subcontractors from whom proposals may be requested for each principal portion of the Work. Owner shall promptly reply in writing to Construction Manager if Owner or Design Professional know of any objection to a subcontractor. Owner may designate specific persons or entities from whom Construction Manager shall solicit bids.

3.3.9 CONSULTANTS Construction Manager shall assist Owner in selecting, retaining, and coordinating the professional services of a surveyor, testing laboratories, and special consultants as needed.

3.3.10 OTHER PRECONSTRUCTION SERVICES Construction Manager shall provide such other preconstruction services as are agreed upon by the Parties and identified in an attached exhibit to this Agreement or as follows:

aerial photographic review

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laser scanning geotechnical analysis selective destructive exploratory work other [_____]

3.4 GUARANTEED MAXIMUM PRICE (GMP)

3.4.1 At such time as the Parties agree the drawings and specifications are sufficiently complete, Construction Manager, in consultation with the Design Professional, shall prepare and submit to Owner in writing a GMP. The GMP proposal shall include the sum of the estimated cost of the Work, Construction Manager's Fee, the clarifications and assumptions upon which it is based, allowances, and reasonable contingencies, but shall not include compensation for Preconstruction Services.

Construction Manager does not guarantee any specific line item provided as part of the GMP but agrees that it will be responsible for paying all costs of completing the Work which exceed the GMP, as adjusted in accordance with this Agreement.

3.4.2 If the Contract Documents are not complete at the time the GMP proposal is submitted to Owner, Construction Manager shall provide in the GMP for further development of the Contract Documents. Such further development does not include changes in scope, systems, kinds and quality of materials, finishes, or equipment, all of which, if required, shall be incorporated by Change Document.

3.4.3 BASIS OF GUARANTEED MAXIMUM PRICE Construction Manager shall include with the GMP proposal a written statement of its basis, which shall include:

3.4.3.1 a list of the drawings and specifications, including all addenda, which were used in preparation of the GMP Proposal;

3.4.3.2 a list of allowances and a statement of their basis;

3.4.3.3 a list of the assumptions and clarifications made by Construction Manager in the preparation of the GMP Proposal to supplement the information contained in the drawings and specifications;

3.4.3.4 the Date of Substantial Completion or the Date of Final Completion upon which the proposed GMP is based, and the Schedule of Work upon which the Date of Substantial Completion or the Date of Final Completion is based;

3.4.3.5 a schedule of applicable alternate prices;

3.4.3.6 a schedule of applicable unit prices;

3.4.3.7 a statement of any work to be self-performed by Construction Manager including associated labor rates.

3.4.3.8 Construction Manager’s contingency as provided in §3.4.8, and

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

3.4.4 Construction Manager shall meet with Owner and Design Professional to review the GMP. If Owner or Design Professional discover any inconsistencies, inaccuracies, or omissions in the

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information presented, they shall promptly notify Construction Manager, who shall make appropriate adjustments to the GMP. Owner shall then give prompt written approval of the GMP.

3.4.5 Owner shall cause Design Professional to revise the drawings and specifications to the extent necessary to reflect the clarifications, assumptions, and allowances on which the GMP is based.

Revised drawings and specifications shall be furnished to Construction Manager in accordance with the current Schedule of the Work, unless otherwise agreed by Owner, Construction Manager, and Design Professional. Construction Manager shall promptly notify Owner and Design Professional if the revised drawings and specifications are inconsistent with the GMP's clarifications, assumptions, and allowances.

3.4.6 If this Agreement is executed before establishment of the Guaranteed Maximum Price and its acceptance by Owner, then the GMP and its basis shall be set forth in Amendment 1.

3.4.7 Allowances shall include the costs of materials, supplies, and equipment delivered to the Worksite less applicable trade discounts and including requisite taxes, unloading and handling at the Worksite, and labor and installation, unless specifically stated otherwise. Construction Manager's Overhead and profit for the allowances shall be included in the GMP, but not in the allowances. The GMP shall be adjusted by Change Order to reflect the actual costs when they are greater than or less than the allowances.

3.4.8 CONSTRUCTION MANAGER’S CONTINGENCY The GMP Proposal will contain, as part of the estimated Cost of the Work, Construction Manager’s Contingency, a sum mutually agreed upon and monitored by Construction Manager and Owner to cover costs which are properly reimbursable as a Cost of the Work but are not the basis for a Change Order. Construction Manager’s Contingency shall not be used for changes in scope or for any item that would be the basis for an increase in the GMP.

Construction Manager’s use of its contingency shall be by written approval of the Owner, and Construction Manager shall provide Owner with a monthly accounting of charges against Construction Manager’s Contingency, if applicable, with each application for payment.

3.4.9 FAILURE TO ACCEPT THE GMP PROPOSAL Unless Owner accepts the GMP Proposal in writing on or before the date specified in the GMP Proposal for such acceptance and so notifies Construction Manager, the GMP Proposal shall not be effective. If Owner fails to accept the GMP Proposal, or rejects the GMP Proposal, Owner shall have the right to:

3.4.9.1 suggest modifications to the GMP Proposal. If such modifications are accepted in writing by Construction Manager, the GMP Proposal shall be deemed accepted in accordance with §3.4.6; or

3.4.9.2 terminate the Agreement for convenience in accordance with §12.2.

3.4.10 ACCEPTANCE OF THE GMP PROPOSAL If the Owner notifies the Construction Manager that the Owner has accepted the Guaranteed Maximum Price proposal in writing before the date specified in the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price proposal shall be deemed effective without further acceptance from the Construction Manager. Following acceptance of a Guaranteed Maximum Price, the Owner and Construction Manager shall execute the Guaranteed Maximum Price Amendment amending this Agreement. Owner shall provide a copy of the GMP Amendment to the Design Professional. The Guaranteed Maximum Price Amendment shall set forth the agreed upon Guaranteed Maximum Price with the information and assumptions upon which it is based (See §s 3.4.1 and 3.4.2).

3.4.11 CONSTRUCTION MANAGER TO GUARANTEE CONTRACT SUM The Construction Manager guarantees that the Contract Sum shall not exceed the Guaranteed Maximum Price set

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forth in the Guaranteed Maximum Price Amendment, as it is amended from time to time. To the extent the Cost of the Work exceeds the Guaranteed Maximum Price, the Construction Manager shall bear such costs in excess of the Guaranteed Maximum Price without reimbursement or additional compensation from the Owner.

3.4.11.1 One hundred percent of the savings on the project shall be returned to the Owner.

3.4.12 PRE-GMP WORK Before Owner's acceptance of the GMP Proposal, Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work, except as provided in this Agreement or as Owner may specifically authorize in writing.

3.5 WORKMANSHIP

3.5.1 The Work shall be executed in accordance with the Contract Documents in a workmanlike manner. All materials used in the Work shall be furnished in sufficient quantities to facilitate the proper and expeditious execution of the Work and shall be new except as otherwise provided in the Contract Documents.

3.5.2 Work for which no explicit quality of standards of materials and/or workmanship is defined in the Contract Documents shall be of good quality for the intended use and consistent with the quality of surrounding work and of the construction of the Project generally.

3.5.3 All manufactured articles, materials and equipment shall be applied, installed, connected, erected, used, cleaned, and conditioned in accordance with the manufacturers’ written instructions, unless specifically indicated otherwise in the Contract Documents.

3.5.4 Where the Work is to fit with existing conditions or work to be performed by others, the Construction Manager shall join the Work fully and completely with such conditions or work, unless otherwise specified.

3.5.5 The Construction Manager shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work.

3.5.6 The Construction Manager shall study and compare all Drawings and verify all figures shown thereon before laying out or constructing the Work. The Construction Manager shall be responsible for errors in its work and the work of its Subcontractors that might reasonably have been avoided thereby. The Construction Manager shall establish and be responsible for the accuracy of all lines, grades, measurements, levels, column lines, wall and partition lines required by the various Subcontractors in laying out their Work and shall protect and preserve all permanent bench and other markers. Checking of the figures or layout by the Design Professional shall not relieve the Construction Manager of these responsibilities.

3.6 COOPERATION WITH WORK OF OWNER AND OTHERS

3.6.1 Owner may perform work at the Worksite directly or by Others. Any agreements with Others to perform construction or operations related to the Project shall include provisions pertaining to insurance, indemnification, waiver of subrogation, consequential damages, coordination, interference, cleanup, and safety that are substantively the same as the corresponding provisions of this Agreement.

3.6.2 If Owner elects to perform work at the Worksite directly or by Others, the Parties shall coordinate the activities of all forces at the Worksite and agree upon fair and reasonable schedules

ConsensusDocs® 500 - Standard Agreement and General Conditions Between Owner and Construction Manager (CM At-Risk) © 2011, Revised September 2018. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel are strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

and operational procedures for Worksite activities. Owner shall require each separate contractor to cooperate with Construction Manager and assist with the coordination of activities and the review of construction schedules and operations. The GMP or the Date of Substantial Completion or the Date of Final Completion may be equitably adjusted in accordance with this Agreement, for changes resulting from the coordination of construction activities, and the Schedule of the Work shall be revised accordingly.

3.6.3 With regard to the work of Owner and Others, Construction Manager shall (a) proceed with the Work in a manner that does not hinder, delay, or interfere with the work of Owner or Others or cause the work of Owner or Others to become defective; (b) afford Owner or Others reasonable access for introduction and storage of their materials and equipment and performance of their activities; and (c) coordinate Construction Manager's Work with theirs.

3.6.4 Before proceeding with any portion of the Work affected by the construction or operations of Owner or Others, Construction Manager shall give Owner prompt, written notification of any defects Construction Manager discovers in their work which will prevent the proper execution of the Work.

Construction Manager's obligations in this subsection do not create a responsibility for the work of Owner or Others but are for the purpose of facilitating the Work. If Construction Manager does not notify Owner of defects interfering with the performance of the Work, Construction Manager acknowledges that the work of Owner or Others is not defective and is acceptable for the proper execution of the Work. Following receipt of written notice from Construction Manager of defects, Owner shall promptly issue an Interim Directive informing Construction Manager what action, if any, Construction Manager shall take regarding the defects.

3.7 CONTRACT DOCUMENT REVIEW AND ADMINISTRATION

3.7.1 Before commencing the Work, Construction Manager shall examine and compare the drawings and specifications with information furnished by Owner that are considered Contract Documents, relevant field measurements made by Construction Manager, and any visible conditions at the Worksite affecting the Work.

3.7.1.1 Requests by the Construction Manager for additional information relative to the Contract Documents (RFIs) shall be submitted simultaneously to the Owner and Design Professional in writing, on a form prepared or approved by the Design Professional, and shall include a detailed statement indicating the specific drawings or specifications in need of clarification and the nature of the clarification requested, such as supplementary drawings or specifications, or review and approval of product data, samples or sketches submitted by the Construction Manager. If mutually agreed upon by the Design Professional, Construction Manager and Owner, “in writing” may include fax transmissions, electronic mail, or other documentable communication methods.

3.7.1.2 RFIs shall be submitted in a timely manner so as to cause no delay in the progress of the Work, and to allow adequate time for review and response prior to the date on which the Construction Manager’s current schedule of submittals requires a subsequent submittal which is dependent on the information requested. Unless another period of time is reasonably requested by the Design Professional and agreed to at the time of submittal, the Design Professional shall respond to each RFI within ten Business Days after receiving it.

3.7.2 Should Construction Manager discover any defects which shall include but not be limited to errors, omissions, or inconsistencies in the Contract Documents, Construction Manager shall promptly report them to Owner and Design Professional. It is recognized, however, that Construction Manager is not acting in the capacity of a licensed design professional, and that Construction Manager's examination is to facilitate construction and does not create an affirmative responsibility to

ConsensusDocs® 500 - Standard Agreement and General Conditions Between Owner and Construction Manager (CM At-Risk) © 2011, Revised September 2018. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel are strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

detect defects or to ascertain compliance with applicable laws, statutes, ordinances, building codes, and rules and regulations. Following receipt of written notice from Construction Manager of defects, Owner shall promptly inform Construction Manager what action, if any, Construction Manager shall take regarding the defect.

3.7.3 Construction Manager shall have no liability for errors, omissions, or inconsistencies discovered under this section, unless Construction Manager knowingly fails to report a recognized problem to Owner or request supplementary instructions when a problem is identified. If the Construction Manager proceeds with the Work without first obtaining such supplementary instructions, the Construction Manager shall correct work incorrectly done at the Construction Manager’s expense.

3.7.4 Construction Manager may be entitled to reasonable additional costs or time because of clarifications or instructions growing out of Construction Manager's reports described in this §3.7.

3.7.5 Nothing in §3.7 shall relieve Construction Manager of responsibility for its own errors, inconsistencies, or omissions.

3.7.6 COST REPORTING Construction Manager shall maintain complete, accurate, and current records that comply with generally accepted accounting principles and calculate the proper financial management under this Agreement. Construction Manager shall maintain a complete set of all books and records prepared or used by Construction Manager with respect to the Project. The accounting and control systems shall be satisfactory to the Owner, and Owner’s auditors shall, during regular business hours and upon reasonable notice, be afforded access to, and shall be permitted to audit and copy, the Construction Manager’s records and accounts, including complete documentation supporting accounting entries, books, correspondence, instructions, drawings, receipts, subcontracts, Subcontractor’s proposals, purchase orders, vouchers, memoranda and other data relating to this Agreement.