Common use of Incentive Benchmark Proposal Clause in Contracts

Incentive Benchmark Proposal. 4.5.1 Contractor shall prepare the Incentive Benchmark Proposal in accordance with the Standard of Care, to reflect Contractor’s best estimate of what the Cost of the Work will ultimately be, without any allowance for contingencies or reserves (other than the Allowances provided for in Section 4.11.1). Contractor acknowledges receipt of the Incentive Benchmark Drawings and Specifications by electronic transmittal on May 18, 2019 and shall deliver the Incentive Benchmark Proposal to MSG on or before July 17, 2019. 4.5.2 The Incentive Benchmark Proposal shall include, in addition to the Incentive Benchmark Qualifications and Assumptions: 4.5.2.1 a detailed schedule of values detailing: 4.5.2.1.1 the estimated Cost of the Work to be incurred by Contractor organized by trade categories (which shall include any Costs of the Work incurred under the LNTP and under any Early Work Package Agreements (including to the extent such Work has been fully bought out or completed)); 4.5.2.1.2 all estimated Allowances listed in accordance with Section 4.5.2.4; 4.5.2.1.3 estimated General Conditions Costs and General Requirements Work Expenses, including wages, rates and burdens (based on the rates set forth in Schedule Q together with any other wages, rates and burdens to be agreed to with MSG); 4.5.2.1.4 the Allocation; and 4.5.2.1.5 the Contractor’s Fee, as set forth in Schedule E, 4.5.2.2 a statement of the proposed Incentive Benchmark, which proposed Incentive Benchmark will equal the sum of the amounts listed in the detailed schedule of values described in Section 4.5.2.1; 4.5.2.3 Contractor’s Incentive Benchmark Qualifications and Assumptions; 4.5.2.4 a list of proposed Allowances and for each such Allowance, the estimated amount for such Allowance and a statement of its basis, as more fully described in Section 4.11; 4.5.2.5 a schedule of applicable alternate prices (for alternates requested by MSG); 4.5.2.6 a proposed Construction Schedule and a proposed Submittal Schedule; 4.5.2.7 a schedule of unit prices to be used in the calculation of Change Order amounts; provided that the failure of the Parties to agree on such unit prices will not affect the effectiveness of the remainder of the Incentive Benchmark Proposal; 4.5.2.8 a proposed Staffing Plan (which Staffing Plan shall include the staff of major Subcontractors as agreed between the Parties); 4.5.2.9 the time limit for validity of the Incentive Benchmark Proposal (which shall not be less than ninety (90) Days and may be extended by the Parties by mutual agreement); and 4.5.2.10 any not to exceed amounts required by MSG with respect to individual trade packages or other packages of the Work. 4.5.3 To the extent that the Incentive Benchmark Drawings and Specifications are anticipated to require further development by Architect, Contractor shall provide in the Incentive Benchmark Proposal for such further development consistent with the Contract Documents. 4.5.4 MSG shall be entitled to full access to all details of the process of preparing the Incentive Benchmark Proposal. Contractor shall comply with the requirements of Article 11, including making available to MSG upon request all Subcontractor bids and underlying documentation upon which the Incentive Benchmark Proposal is based. It is the intent of this Agreement that the Incentive Benchmark will minimize the Allowances, assumptions, clarifications and any other elements that could lead to Change Orders or to the actual Cost of the Work exceeding the Incentive Benchmark. 4.5.5 Promptly after Contractor delivers the Incentive Benchmark Proposal to MSG, the Project Development Team shall meet to review and confer about the Incentive Benchmark Proposal. If MSG, Project Manager, or Architect discovers any inconsistencies or inaccuracies in the Incentive Benchmark Proposal, then they shall promptly notify Contractor, who shall make appropriate adjustments to the Incentive Benchmark Proposal. The reconciliation shall be documented by an addendum to the Incentive Benchmark Qualifications and Assumptions that shall be approved in writing by MSG and Contractor. The Project Development Team shall work cooperatively in a diligent manner to review and assess the Incentive Benchmark within twenty-one (21) Days after Contractor provides the Incentive Benchmark Proposal to MSG; provided that MSG may extend such time (subject to the time limit specified in Section 4.5.2.9 above), if necessary. 4.5.6 If, within the twenty-one (21) day (or such longer) period, MSG (in its sole discretion) rejects the Incentive Benchmark Proposal, MSG may, at its election: (a) terminate this Agreement within seven (7) days’ notice of termination for convenience and without cause pursuant to Section 18.6.1; (b) direct Contractor to perform Value Engineering in accordance with the following paragraph, or (c) direct Contractor to perform certain packages of the Work selected by MSG on the terms set forth in this Agreement; provided that, in the context of (c) Contractor’s Fee shall be the flat rate identified in Section B of Schedule E-1 hereto. 4.5.7 If MSG so requests pursuant to Section 4.5.6(b) above, Contractor shall notify the Project Development Team promptly and thereafter, diligently work with Project Manager, MSG, and Architect to develop Value Engineering and other cost-saving alternatives to reduce the proposed Incentive Benchmark to an amount acceptable to MSG and within the time requested by MSG; provided, however, that MSG has no obligation to incorporate into the Drawings and Specifications any alternatives proposed by the Contractor (except to the extent any such alternatives are accepted in writing by MSG). If MSG still does not approve the Incentive Benchmark Proposal (whether with or without any of the Value Engineering or other cost-saving alternatives developed by Contractor), then at MSG’s request, MSG and Contractor will meet and confer in good faith to discuss such modifications to the Incentive Benchmark Proposal that will make the Incentive Benchmark Proposal acceptable to MSG and Contractor.