Common use of UNLESS OTHERWISE AGREED IN WRITING Clause in Contracts

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 CMOWNER’S CONSTRUCTION CONTINGENCY MAY FUND SHALL 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 ANY DESIGN ISSUES THAT COULD NOT 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 ANY CHANGES REQUESTED 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”)OWNER. THE CM’S USE OF THE CMOWNER’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. 7.1.1.7.3 GENERAL CONDITIONS SHALL BE PAID IN AN AMOUNT THAT SHALL NOT EXCEED THE EVENT AMOUNT IDENTIFIED IN SECTION 7.8 THE OWNER AND CM AGREE THAT THE ITEMS TO BE INCLUDED AS GENERAL CONDITIONS ARE INDICATED IN APPENDIX C. THE GENERAL CONDITIONS FOR ALL ITEMS EXCEPT BONDS AND INSURANCE SHALL BE THE LUMP SUM AMOUNT IDENTIFIED IN SECTION 7.8. THE BONDS AND INSURANCE REQUIRED PER ARTICLE 8 WILL BE THE FIXED PERCENTAGE IDENTIFIED IN SECTION 7.8. THE LUMP SUM GENERAL CONDITIONS ARE BASED ON A PROJECT DURATION OF A DEFAULT BY A CONTRACTOR_ WEEKS FROM NOTICE TO PROCEED TO SUBSTANTIAL COMPLETION AND WEEKS FROM SUBSTANTIAL TO FINAL COMPLETION, WITH THE NOTICE TO PROCEED WITH CONSTRUCTION BEING ISSUED ON OR ABOUT (month/year) . IF THE ACTUAL SCHEDULED PROJECT DURATION FOR SUBSTANTIAL COMPLETION IS LONGER THAN WEEKS, THE CM SHALL LUMP SUM GENERAL CONDITIONS AMOUNT WILL BE DIVIDED BY AND ADJUSTED UP USING THE WEEKLY AMOUNT TO THE NEAREST NUMBER OF ACTUAL SCHEDULED WEEKS FOR SUBSTANTIAL COMPLETION. NOTHWITHSTANDING THE ABOVE, IF THE DIFFERENCE BETWEEN THE ACTUAL SCHEDULED SUBSTANTIAL COMPLETION DURATION OF WEEKS IS GREATER THAN 8 WEEKS IN EITHER DIRECTION THEN THE GENERAL CONDITIONS WILL BE NEGOTIATED AS EITHER REIMBURSABLE WITH A NOT USE TO EXCEED AMOUNT OR A NEW LUMP SUM AMOUNT. UNDER NO CIRCUMSTANCES WILL THE CM’S CONTINGENCY TO COVER ANY COSTS COVERED BY A PERFORMANCE OR PAYMENT BOND PROVIDED BY THE CONTRACTOR FEE AND SHALL VIGOROUSLY PURSUE REIMBURSEMENT OF ALL EXPENSES BOND/INSURANCE PERCENTAGES BE CHANGED FROM THE CONTRACTOR’S SURETYRATE SPECIFIED IN SECTION 7.8. IF SUBGUARD OR OTHER SIMILAR PROGRAM FOR BONDING SUBCONTRACTORS IS USED, 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 RATE WILL BE 1.2% OF THE CM’S CONTINGENCY ACTUAL COST OF WORK FOR CATEGORY B ITEMS SHALL THE SUBCONTRACTORS AND WILL BE SUBJECT ADDED TO THE OWNER’S RIGHT TO REDUCE THE FUNDS AVAILABLE TO BE PAID AS AN INCENTIVE PURSUANT TO SECTION 7.6AMOUNTS ABOVE.

UNLESS OTHERWISE AGREED IN WRITING. THE CMOWNER’S CONSTRUCTION CONTINGENCY MAY FUND SHALL 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 ANY DESIGN ISSUES THAT COULD NOT 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 ANY CHANGES REQUESTED 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”)OWNER. THE CM’S USE OF THE CMOWNER’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. _ TO SUBSTANTIAL COMPLETION AND WEEKS 7.1.1.7.3 GENERAL CONDITIONS SHALL BE PAID IN AN AMOUNT THAT SHALL NOT EXCEED THE EVENT OF AMOUNT IDENTIFIED IN SECTION 7.8 THE OWNER AND CM AGREE THAT THE ITEMS TO BE INCLUDED AS GENERAL CONDITIONS ARE INDICATED IN APPENDIX C. THE GENERAL CONDITIONS FOR ALL ITEMS EXCEPT BONDS AND INSURANCE SHALL BE THE LUMP SUM AMOUNT IDENTIFIED IN SECTION 7.8. THE BONDS AND INSURANCE REQUIRED PER ARTICLE 8 WILL BE THE FIXED PERCENTAGE IDENTIFIED IN SECTION 7.8. THE LUMP SUM GENERAL CONDITIONS ARE BASED ON A DEFAULT BY A CONTRACTORPROJECT CONTRACTED WITH TO OVERSEE “NEW CONSTRUCTION” OR “RECONSTRUCTION” AS DEFINED IN G.S. 105-164.4H, THE CM SHALL NOT BE RESPONSIBLE FOR ISSUING AND MAINTAINING AN AFFIDAVIT OF CAPITAL IMPROVEMENT. Any increase or decrease in taxes that affect the Guaranteed Maximum Price and that are enacted after the Guaranteed Maximum Price is submitted shall be incorporated into that price by change order. ANY SALES TAX REFUNDS PAID TO THE OWNER SHALL BE EXCLUSIVELY FOR THE OWNER’S 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 REDUCE THE RESULT OF A DEFAULT BY A CONTRACTOR IF THE CM IS UTILIZING A SUBGUARD- TYPE PROGRAM. THE CM ACKNOWLEDGES THAT THE USE COST OF THE CM’S CONTINGENCY FOR CATEGORY B ITEMS SHALL BE SUBJECT TO PROJECT OR IMPACT THE OWNER’S RIGHT TO REDUCE THE FUNDS AVAILABLE TO BE PAID AS AN INCENTIVE PURSUANT TO SECTION 7.6GUARANTEED MAXIMUM PRICE.

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- 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.