UNLESS OTHERWISE AGREED IN WRITING. THE CM’S CONSTRUCTION CONTINGENCY MAY BE USED BY THE CM TO EXPEDITE THE WORK, ADDRESS SCHEDULING AND COORDINATION PROBLEMS, RESPOND TO A DEFAULT BY A NON-BONDED CONTRACTOR, AND REPAIR DAMAGED WORK IN PLACE WHERE THE RESPONSIBLE CONTRACTOR CANNOT BE IDENTIFIED BY THE CM AFTER REASONABLE EFFORTS TO IDENTIFY THE RESPONSIBLE PARTY (“CATEGORY A”). THE CM’S CONSTRUCTION CONTINGENCY MAY ALSO BE USED BY THE CM TO CORRECT DESIGN ISSUES THAT REASONABLY SHOULD HAVE BEEN DISCOVERED BY THE CM DURING THE PERFORMANCE OF ITS OBLIGATIONS PURSUANT TO PARAGRAPHS 3.3.1.5 AND 3.3.1.6, CORRECT SCOPE GAPS IN THE BIDDING OF THE PROJECT, CORRECT CODE, REGULATORY AND OTHER ITEMS IDENTIFIED BY THE OWNER IN WRITING PRIOR TO BIDDING THE PROJECT, CORRECT ITEMS IDENTIFIED IN CHANGE ORDERS OR REQUEST FOR INFORMATION ARISING ON PREVIOUS USES OF THE SAME PROTOTYPE DESIGN, AND ANY ISSUES THAT ARE THE FAULT OF THE CM (“CATEGORY B”). THE CM’S USE OF THE CM’S CONSTRUCTION CONTINGENCY FUND SHALL BE DOCUMENTED IN WRITING BY THE CM AND APPROVED BY THE OWNER IN WRITING PRIOR TO THE CM BILLING FOR THE WORK. IN THE EVENT OF A DEFAULT BY A CONTRACTOR, THE CM SHALL NOT USE THE CM’S CONTINGENCY TO COVER ANY COSTS COVERED BY A PERFORMANCE OR PAYMENT BOND PROVIDED BY THE CONTRACTOR AND SHALL VIGOROUSLY PURSUE REIMBURSEMENT OF ALL EXPENSES FROM THE CONTRACTOR’S SURETY. THE CM ALSO SHALL NOT USE THE CM’S CONTINGENCY IN ANY WAY TO COVER ANY COSTS INCURRED AS THE RESULT OF A DEFAULT BY A CONTRACTOR IF THE CM IS UTILIZING A SUBGUARD- TYPE PROGRAM. THE CM ACKNOWLEDGES THAT THE USE OF THE CM’S CONTINGENCY FOR CATEGORY B ITEMS SHALL BE SUBJECT TO THE OWNER’S RIGHT TO REDUCE THE FUNDS AVAILABLE TO BE PAID AS AN INCENTIVE PURSUANT TO SECTION 7.6.
UNLESS OTHERWISE AGREED IN WRITING the Construction Manager shall carry on the work and maintain its progress during the resolution of any claim or controversy and the Owner shall continue to make payments that are due and owing to the Construction Manager, and not in dispute, in accordance with this Contract. No arbitration arising out of or relating to the Contract Documents shall include, by consolidation or joinder or in any other manner, the Architect, the Architect's employees or consultants, except by written consent containing specific reference to the Agreement and signed by the Architect, Owner, Construction Manager and any other person or entity sought to be joined. No arbitration shall include, by consolidation or joinder or in any other manner, parties other than the Owner, Construction Manager, a separate contractor as described in Article 6 of AIA Document A201 and other persons substantially involved in a common question of fact or law whose presence is required if complete relief is to be accorded in arbitration. No person or entity other than the Owner or Construction Manager or a separate contractor as described in Article 6 of AIA Document A201 shall be included as an original third party or additional third party to an arbitration whose interest or responsibility is insubstantial. Consent to arbitration involving an additional person or entity shall not constitute agreement to arbitration of a dispute not described in such consent or with a person or entity not named or described therein. The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by parties to this Agreement shall be specifically enforceable under applicable law in any court having jurisdiction thereof.
