EXHIBIT 10.14
AGREEMENT
BETWEEN THE OWNER AND THE CONSTRUCTION MANAGER
AGREEMENT MADE AS OF THE 9TH DAY OF MAY IN THE YEAR OF 2005
BETWEEN the Owner: Xxxxxxx National, LLC
(Name and address) Xxx Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
and the Construction Manager: Perini Building Company and
Xxxxxx Construction Company
doing business under the name and style
Perini/Xxxxxxxx Joint Venture,
c/o Perini Building Company
00 Xx. Xxxxx Xxxxxx
Xxxxxxxxxx, XX
The Project is: Xxxxxxx National Resort
Oxon Hill, Maryland
The Architect is: Xxxxxxx Architecture, Design & Planning, P.C
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
The Owner and the Construction Manager agree as set forth below.
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ARTICLE 1
THE CONTRACT DOCUMENTS
1.1 The Contract Documents consist of: (i) this Agreement, (ii) the General
Conditions for the Xxxxxxx National Resort Project [the "General Conditions"],
(iii) the requirements of the National Harbor Local and Minority Business
Utilization and Local Resident Participation Agreement attached hereto as
Exhibit C and all procedures adopted pursuant thereto which are applicable to
the construction of the Project [the "MBE/LBE Agreement"] pursuant to which
Construction Manager and all Subcontractors and Sub-subcontractors will seek to
contract with and report activities with minority and local business enterprises
and workers, (iv) the prevailing wage rate law attached hereto as Exhibit F, and
all rules, regulations, orders and prevailing building construction wage rate
schedules from time to time adopted thereunder by the Prince George's County,
Maryland Wage Determination Board, pursuant to which Construction Manager and
all Subcontractors and Sub subcontractors will pay workers performing the Work
on the convention center [the "Prevailing Wage Requirements"], (v) the terms and
conditions of all permits and approvals which may be issued to authorize or
regulate the construction of the Work, (vi) all Schedules, Drawings,
Specifications, addenda issued by the Architect and Owner's Consultants prior to
execution of the GMP Amendment (or, if there is more than one GMP Amendment, the
final GMP Amendment), and (vii) other documents listed in, and all exhibits to,
this Agreement and modifications issued after execution of this Agreement,
including all Separate GMP Amendments and GMP Amendments executed by the Owner
and Construction Manager. The Contract Documents form the contractual agreement
(the "Contract") between Owner and Construction Manager, and are as fully a part
of the Contract as if attached hereto or repeated herein. The Contract
represents the entire and integrated agreement between the Owner and
Construction Manager and supersedes prior negotiations, representations or
agreements, either written or oral. An enumeration of the Contract Documents in
existence as of the date of execution of this Agreement, other than
modifications, Separate GMP Amendments, GMP Amendments and Exhibits to be agreed
upon after execution of this Agreement, appears in Article 15. In the event of
any conflict, inconsistency or ambiguity between or among any of the Contract
Documents, the Contract Documents shall take precedence as set forth in
Paragraph 3.C of the General Conditions.
ARTICLE 2
THE WORK
2.1 The Work required under this Contract generally consists of the construction
of the Xxxxxxx National Resort and Convention Center which includes a 1500 room
hotel, spa, swimming pool, restaurants, a convention center generally described
(without limiting Construction Manager's obligation) in Exhibit K to this
Agreement, surface and structured parking and various other structures and
spaces, all as more fully detailed in the drawings and other documents listed in
Article 15 hereof and/or in any applicable Separate GMP Amendments and/or GMP
Amendments executed by the Owner and Construction Manager. As used in the
Contract Documents, the terms "Work" or "work" shall mean, and the Construction
Manager shall be required to furnish and perform, all labor, supervision,
construction, materials, equipment, special facilities and "built-ins",
construction documentation, construction management services, fixtures, tools,
supplies, taxes, permits (including mechanical, electrical, plumbing, fire
protection and occupancy permits) and all other property and services necessary
to timely and fully perform all work or services set forth in or reasonably
inferable from all Contract Documents in a good and workmanlike manner and in
accordance with the Contract Documents and all labor, services, equipment and
materials necessary to produce fully connected, complete and operational systems
and finishes consistent with the requirements of the Contract Documents.
2.1.1 In determining what is reasonably inferable from the Contract Documents,
all such documents shall be construed together, and shall not be read by
separate trade areas or design divisions. The later description of the Work in
further detail by the Architect or the Owner, through the issuance of written
specifications, directions or clarifications, the issuance of further and more
detailed drawings or otherwise, shall not entitle the Construction Manager to
any compensation in addition to the Guaranteed Maximum Price (or any Separate
GMP, as applicable), or to any extension of the Completion Date(s) or Milestone
Dates, unless and only to the extent that such later description constitutes a
"Material Change" in the Work,
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which is defined as any one of the following: (1) a Change Order or Change
Directive issued by the Owner pursuant to Article 17 of the General Conditions
that requires work of a substantially different nature, character, scope or
quality (other than refinement) than that set forth in and/or reasonably
inferable from the Contract Documents identified herein and in the applicable
Separate GMP Amendment and/or GMP Amendment executed by the Owner and
Construction Manager; or (2) a Change Order or Change Directive issued by the
Owner pursuant to Article 17 of the General Conditions that requires work
expressly excluded from the Guaranteed Maximum Price (or any Separate GMP, as
applicable) in the applicable Separate GMP Amendment or GMP Amendment executed
by the Owner and Construction Manager; or (3) an acceleration of the Schedule or
election by Owner to pay costs incurred to mitigate an Excused Delay as provided
in Paragraph 16(B) of the General Conditions; or (4) (i) an emergency
threatening life or property at the Site; or (ii) Differing Site Conditions
described in Paragraph 4(E) of the General Conditions; or (iii) later change of
Law or Factory Mutual Standard described in Paragraph 6(B) of the General
Conditions; in each case, that requires the Construction Manager to take actions
not otherwise included in the scope of the Work.
2.1.2 The Construction Manager hereby acknowledges and agrees that it shall not
be entitled to any increase in the Guaranteed Maximum Price (or any Separate
GMP, as applicable) or any extension of the Completion Date(s) or Milestone
Dates as a result of any Material Change, or both, unless: (1) there is an
actual, substantiated increase in the Cost of the Work or actual delay in the
Substantial Completion of the Work beyond the Completion Date(s) or Milestone
Dates, or both, which results from such Material Change and is compensable under
the Agreement; (2) the Construction Manager makes a claim for an increase in the
Guaranteed Maximum Price (or any Separate GMP, as applicable) and/or extension
of the Completion Date(s) or Milestone Dates with respect to such Material
Change within the time and in the manner required by the terms of the Contract;
and (3) either (a) the Owner authorizes the Construction Manager to proceed with
such Work and agrees to increase the GMP (or Separate GMP, as applicable) or to
extend the Completion Date(s) or Milestone Dates, or both, in advance and
thereafter executes a fully executed Change Order; or (b) the Construction
Manager is awarded an increase in the Guaranteed Maximum Price (or any Separate
GMP, as applicable) or extension in the Completion Date(s) or Milestone Dates,
or both, pursuant to a claim made in the time and manner required by the
Contract and litigation thereafter commenced pursuant to the Contract; or (c) in
the event of an emergency threatening life or property at the Site the
Construction Manager shall be entitled to any reasonable amounts expended to
address the emergency.
2.1.3 In the event that a Material Change does occur in the Work (which is not
resolved through a Change Order executed by the Owner and Construction Manager),
and provided that the Construction Manager makes a claim for an increase in
Guaranteed Maximum Price (or any Separate GMP, as applicable) or extension of
the Completion Date(s) or Milestone Dates, or both, as a result of such Material
Change within the time and in the manner required by the Contract, the
Construction Manager shall be entitled, as its sole and complete remedy, to an
increase in compensation calculated pursuant to Paragraphs 36(C) of the General
Conditions, together with an extension of the Completion Date(s) or Milestone
Dates measured by the actual number of days, or portions thereof, if any, that
Substantial Completion of the Work is actually delayed as a direct result of the
Material Changes (provided, however, that if the required extension is not
granted, the Construction Manager shall be entitled to the remedies set forth in
Paragraph 16(A) of the General Conditions).
ARTICLE 3
RELATIONSHIP OF THE PARTIES
3.1 The Construction Manager accepts the relationship of trust and confidence
established by the Contract and covenants with the Owner to cooperate with the
Owner, Architect and Owner's Consultants and utilize the Construction Manager's
skill, efforts and judgment (consistent with the representations made in
Paragraph 5(E) of the General Conditions) in furthering the interests of the
Owner; to furnish efficient business administration and supervision; to make
reasonable efforts to furnish at all times an adequate supply of workers and
materials; and to perform the Work in an expeditious and economical manner
consistent with the interests of the Owner and as required by the Contract
Documents. The Owner agrees to furnish information and render decisions in the
manner and time required by the Contract Documents and to
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make payments to the Construction Manager in accordance with the requirements of
the Contract Documents.
ARTICLE 4
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
4.1 The date of commencement shall be the date fixed in the Owner's notice to
proceed or specified in the Separate GMP Amendment or GMP Amendment executed by
the Owner and Construction Manager. The Construction Manager shall promptly
commence the Work to be performed under the Contract Documents on the date of
commencement. The Construction Manager shall thereafter continuously and
diligently perform, forward and prosecute such Work to completion on the
Completion Date(s) and Milestone Dates, as defined in Section 4.2, subject only
to Excused Delays as defined by the terms of this Contract.
4.2 The Construction Manager shall achieve Substantial Completion of the entire
Work not later than December 28, 2007 (the "Completion Date"), subject only to
Excused Delays as defined in this Contract. In addition to the Completion Date
for the entire Work, the Construction Manager shall achieve Substantial
Completion of the convention center on or before September 28, 2007 and certain
other milestone dates for completion of key portions of the Work that are
specified in Exhibit H to this Agreement or specified in any of the GMP
Amendments or, as to additional work added by Change Order or Change Directive,
in such Change Order or Change Directive, as the case may be ("Milestone
Dates"). All Completion Dates and Milestone Dates shall be incorporated by
Construction Manager into the schedules prepared pursuant to this Agreement and
Article 14 of the General Conditions.
4.3 Timely completion of the Work, and each portion thereof having a Completion
Date or Milestone Date, is of the essence in this Contract. In particular, the
Construction Manager acknowledges and recognizes that the Work involves the
construction of a hotel, convention center, structured and surface parking,
swimming pool, spa, restaurant and accessory facilities and that the Owner must
have beneficial occupancy and use of all of the Work within the time established
for Substantial Completion and each of the Milestone Dates, subject only to
Excused Delays as defined in Section 4.4 below, and that the Owner has entered
into, or will hereafter enter into, binding agreements for furnishing of the
interior of the building, training employees, leasing rooms, retail areas and
convention space based upon the Construction Manager's representation that it
can achieve Substantial Completion of the Work and each of the Milestone Dates
within the times established herein. The Construction Manager acknowledges and
understands that the Owner will incur substantial losses and damages if the
Owner is not able to have access to specified portions of the Project by each of
the Milestone Dates and have use and occupy the Work for its intended purpose as
of the date established herein for Substantial Completion. Among other things,
the Construction Manager acknowledges that the Owner, if it is unable to have
access to and use and occupy the Work for its intended use by such date(s), will
incur additional financing costs, may be required to pay additional fees to the
Architect, and other consultants retained by the Owner, and will suffer actual
economic loss in the form of increased costs of installation of furnishings,
fixtures and equipment, lost rental incomes, rebates, lost event revenue, and
related sales income. Accordingly, the Construction Manager agrees that, if the
Construction Manager fails to achieve Substantial Completion of the convention
center on or before September 28, 2007 or Substantial Completion of all of the
Work by December 28, 2007, except and only as they may be extended due to
Excused Delays pursuant to this Contract, the Construction Manager shall pay the
Owner liquidated damages of (i) $15,000 (Fifteen Thousand Dollars) per day, for
each calendar day, or portion thereof, beyond September 28, 2007 that the
convention center is not Substantially Complete, plus (ii) $15,000 (Fifteen
Thousand Dollars) per day, for each calendar day, or portion thereof, beyond
December 28, 2007 that the entire Work is not Substantially Complete; plus (iii)
$8,000 (Eight Thousand Dollars) per day, for each calendar day, or portion
thereof beyond any of the Milestone Dates that are highlighted in red on Exhibit
H, that the Work and access required for such Milestone Date is delayed, except
and only to the extent that, in either or both such cases, the reason for such
failure is an Excused Delay as defined herein. Liquidated Damages shall be
computed separately for each violation and shall not overlap. By way of example,
if Construction Manager violates two highlighted Milestone Dates, it would be
liable for liquidated damages in the amount of $20,000 (Twenty Thousand Dollars)
per day. The
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Construction Manager agrees that the exact amount of the Owner's losses due to
the Construction Manager's delay in performance are not readily ascertainable,
that the Construction Manager has generally reviewed with the Owner the nature
and extent of the actual damages that the Owner will incur should the
Construction Manager fail to perform its obligations as set forth in the
Contract with respect to the timely completion of the Work, and therefore that
the amounts established herein as liquidated damages constitute agreed and
reasonable damages and not a penalty. At its option, the Owner may deduct any
such damages from the amounts due the Construction Manager under the terms of
the Contract. The Owner's exercise of its option under the Contract to use,
install furniture, fixtures and equipment in specified portions of the Project
by the Milestone Dates, and occupy all or any portion of the Work prior to
Substantial Completion shall not toll, waive or diminish in any way the damages
for which the Construction Manager is responsible under this Section, except
that if such occupancy further delays Substantial Completion of the Work,
through no fault of the Construction Manager or its Subcontractors, the
Construction Manager shall not be responsible for liquidated damages for failure
to meet the Completion Dates or Milestone Dates during the period of such
additional delay. The Construction Manager and the Owner agree that, unless
Owner elects to terminate this Agreement for such default, the recovery of
liquidated damages established herein is the exclusive remedy available to the
Owner for the recovery of damages and interest from the Construction Manager for
the Construction Manager's failure to complete the Work on or before the
Completion Date(s) and the highlighted Milestone Dates, subject to extension as
a result of Excused Delays, and that the total amount of liquidated damages
payable to the Owner by Construction Manager shall not exceed an amount equal to
fifty percent (50%) of Construction Manager's Fee. Such liquidated damages
however, do not apply to, nor shall they affect, waive or diminish in any way,
any other damages for which the Construction Manager may be responsible or any
other remedy as a result of any negligence or breach of contract, including
without limitation the violation of Completion Dates or Milestone Dates, if
Owner elects to terminate this Agreement rather than await performance by
Construction Manager. Specifically in the event of unexcused delay, Owner may
elect either: (i) to await performance for the Construction Manager and collect
liquidated damages as above specified; or (ii) to terminate this Agreement and
pursue unliquidated damages and other remedies as provided in the General
Conditions.
4.4 As used in the Contract Documents, an "Excused Delay" shall mean any delay
to the completion of the Work (or any acceleration of the schedule for the
performance of the Work) that is attributable to causes beyond the reasonable
control of and could not reasonably have been mitigated or avoided by the
Construction Manager or its Subcontractors or Suppliers at any tier without
additional cost to the Construction Manager or its Subcontractors or Suppliers.
Excused Delays shall include delays caused by : (i) the act or neglect of the
Owner (including the failure to render required decisions or approvals with
reasonable promptness, or to obtain permits for the Work as required by the
terms of this Contract) or its separate contractors and their respective
employees and agents, or (ii) Material Changes in the Work, or (iii) fire,
unusual and unavoidable delay in deliveries or unavoidable casualties, and (iv)
as to completion of any subsequent Work on the same critical path, the period,
if any, between May 28, 2005 and the earlier of the dates when the Owner obtains
the foundations permit or authorizes commencement of the foundations of the
Project, and (v) as to completion of any subsequent Work on the same critical
path, the period, if any, between July 11, 2005 and the earlier of the dates
when the Owner obtains a superstructure permit or authorizes commencement of the
superstructure of the Project, and (vi) as to the completion of any subsequent
Work on the same critical path, the period, if any, between September 19, 2005,
and the earlier of the dates when the Owner obtains a core, shell and frame
permit or authorizes commencement of the core, shell and frame of the Project.
Excused Delays of the type described in categories (i), (ii) (provided the
Material Change is of the type described in subsections (1),(2), or (3) of the
definition of Material Change in Section 2.1.1), (iv), (v) and (vi) of the
preceding sentence are referred to in the General Conditions as "Owner Caused
Excused Delay." No delay to the Work will be considered an Excused Delay,
however, unless the delay affects the critical path for the performance of the
Work and actually delays Substantial Completion of the entire Work (or the
designated portion thereof identified in the applicable Separate GMP Amendment).
Delays of only certain trades will not be considered an Excused Delay unless
they in turn actually delay the Substantial Completion of the entire Work (or
the designated portion thereof identified in the applicable Separate GMP
Amendment). Delay in bringing permanent utilities to the Site shall be Excused
Delay only as to those items of the Work specified in the GMP Amendment for the
remainder of the Work (i.e. the Work other than the foundations and structure)
to be
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incapable of performance prior to the time that permanent utilities are brought
to the Site and not as to any other Work. In the event of an Excused Delay, the
Construction Manager shall be entitled only to the remedies set forth in
Paragraph 16 of the General Conditions.
4.5 As used herein, the "Date of Substantial Completion" shall mean the date
upon which all of the following shall have occurred as conditions precedent to
"Substantial Completion": (1) the Work or applicable portion thereof has been
completed in accordance with the Contract Documents and is sufficiently complete
to enable the Owner to occupy and use the Work or the applicable portion thereof
for the use for which it is intended; (2) all required approvals and permits for
occupancy, use and completion of the Work or the applicable portion thereof
shall have been issued by appropriate governmental authorities for the Work
(except such certificates, permits, approvals or consents that cannot be
procured due to reasons beyond the reasonable control of the Construction
Manager or its Subcontractors or Suppliers at any tier, in which event this
condition shall not apply to such extent); (3) the Architect has certified that
the Work is complete as required by subsection (1) above; (4) all mechanical and
support systems that are part of the Work are functioning as required by the
Contract Documents; and (5) the Construction Manager and Owner shall have each
reduced to writing the items ("Punch List" items) remaining to be completed for
Final Completion of the Work (in this regard, the Owner agrees that it shall
reduce its Punch List to writing within five (5) working days after receiving
notice from the Construction Manager that it believes the Work is Substantially
Complete) accompanied by Construction Manager's Punch List of Work remaining to
be completed to achieve final completion.
4.5.1 At Substantial Completion of the Work, the Owner will withhold payment of
150% of the value of the incomplete work items and unsatisfactory work. The
Construction Manager may receive progress payments for completed Punch List work
as set forth in the General Conditions of the Contract. When the Construction
Manager considers that the Work, or a portion thereof which the Owner agrees to
accept separately, is Substantially Complete, the Construction Manager shall
notify the Owner and the Construction Manager shall, along with such notice,
deliver its comprehensive written Punch List of items to be completed or
corrected, indicating a proposed value allocable to each such item. The Owner
and Architect shall review the Punch List prepared by the Construction Manager,
inspect the Work, and may add to such Punch List any other items of Work that
Owner or Architect determine require correction or completion and may determine
the value of incomplete items or unsatisfactory Work, which determination shall
take precedence over that proposed by the Construction Manager if there should
be any variance. The Construction Manager shall proceed promptly to complete and
correct all items on the Punch List as supplemented by the Owner or Architect.
Failure to include an item on such list does not alter the responsibility of the
Construction Manager to complete all Work in accordance with the Contract
Documents. If the Work will not be Substantially Complete until any such item is
completed or corrected, the Construction Manager shall perform such completion
or correction before the issuance of the Certificate of Substantial Completion,
at which time the Construction Manager shall then submit a request for another
inspection by the Owner to determine Substantial Completion. (If such item need
not be completed in order for the Work to be Substantially Complete, a
Certificate of Substantial Completion shall still be issued, and the item shall
be completed or corrected thereafter, but in all events prior to the Final
Completion and Final Payment).
4.5.2 When the Work or designated portion thereof is Substantially Complete, the
Architect (or the Owner, if it so desires) will prepare a Certificate of
Substantial Completion which shall establish the date of Substantial Completion,
shall establish the responsibilities of the Owner and Construction Manager for
security, maintenance, heat, utilities, damage to the Work and insurance, and
shall fix the time within which the Construction Manager shall finish all items
on the list accompanying the Certificate. The Certificate of Substantial
Completion shall be submitted to the Owner and Construction Manager for their
written acceptance of responsibilities assigned to them in such Certificate.
4.5.3 The Construction Manager acknowledges and accepts that, during the period
when the Construction Manager is completing its Punch List Work, the Owner may
be occupying or preparing to occupy the Project, and that disputes may arise
between the Owner and Construction Manager as to the
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responsibility for certain Punch List items or other corrective Work (i.e. the
Construction Manager may claim that the Punch List item or corrective Work is
required due to damage not caused by or the responsibility of the Construction
Manager and its Subcontractors, such that the Construction Manager is not
obligated to perform the Punch List item or other corrective Work at issue
without additional compensation). However, the Construction Manager hereby
expressly agrees to perform (and shall require its Subcontractors to perform)
any and all Punch List items and/or other corrective Work directed or requested
by the Owner, promptly upon notice of such direction or request and irrespective
of any dispute as to the Construction Manager's responsibility for such Punch
List item or corrective Work, subject only to the Construction Manager's right
to make claim for additional compensation resulting therefrom pursuant to the
terms of the Contract Documents. In the event a timely and proper claim is made
by the Construction Manager for additional compensation as a result of any such
Punch List item or corrective Work, the Construction Manager shall be entitled
to additional compensation only to the extent the damage corrected by the
Construction Manager (or its Subcontractor) was not caused by or the
responsibility of the Construction Manager, its Subcontractors, their employees
or anyone else for whom they may be liable. The Work identified in any Punch
List shall be completed no later than the date or dates specified by the
Architect or Owner pursuant to Section 4.5.2 of this Agreement or such other
date or dates as agreed to by the Owner and Construction Manager. If the
Construction Manager fails to complete any item on the Punch List by the
specified date or dates, the Owner may, after providing the Construction Manager
with seven (7) days' prior written notice, complete the work at issue and deduct
the cost from sums then being withheld or if necessary recover such costs from
the Construction Manager.
4.6 As used herein, the term Final Completion shall mean the full and proper
completion of all of the Work, including but not limited to satisfactory
operation of all equipment, completion and/or correction of all Punch List items
in accordance with the Contract Documents, payment and release of all mechanics,
materialmen and like liens, delivery of all test reports, warranties and
guarantees and assignments thereof, equipment operation and maintenance manuals,
delivery of all required as-built and record drawings and related documents,
removal of all Construction Manager's (or its Subcontractors') rubbish, tools,
scaffolding, temporary utilities and surplus materials and equipment from the
job site and correction of all damage to landscaping at the Site or to adjacent
property caused by the Construction Manager or its Subcontractors, and final
grading of the Site to remove tire tracks and ruts and related conditions so as
to leave the Site in the condition required by the Contract Documents. Final
Payment shall not be made to the Construction Manager until Final Completion has
occurred. Notwithstanding certification by the Owner or any other party that
Final Completion has occurred, the Construction Manager shall be responsible for
remedying all defects in material or workmanship in accordance with the Contract
Documents. The "Date of Final Completion" shall be no later than 45 days
following Substantial Completion or such later date as agreed to by the Owner
and Construction Manager, unless such date is extended in accordance with the
Contract Documents.
4.7 The Completion Date(s) and Milestone Dates shall be not later than those
identified in this Agreement except as modified herein. The Completion Date(s)
and Milestone Dates established in the Agreement or any GMP Amendment is/are not
based on any representation to the Construction Manager as to how the Work will
be sequenced, or when, for how long, or in what sequence any manpower
assignments or levels will be necessary to perform the Work in accordance with
the schedule established for completion of the Work. Construction Manager shall
sequence and direct its Work in such a fashion as to take advantage of any and
all available areas to perform its Work at the Site, whenever or for whatever
time they are available, and shall increase or decrease its manpower assignments
and levels, as appropriate and in whatever fashion may be necessary, to achieve
completion of all Work in accordance with the approved schedule and as necessary
to complete the Work in accordance with the requirements of the Contract
Documents, subject to the Construction Manager's right to make claim for
additional time and compensation pursuant to the Contract Documents. The Owner
agrees to provide the Construction Manager with access and use of the entire
Site to the extent necessary for the performance of the Work. To the extent such
access and use is not provided and Construction Manager's time and/or cost of
performance of the Work is increased as a result of such failure by the Owner to
provide full access and use, the Construction Manager shall be entitled to an
increase in the GMP and/or an extension of the Completion Date(s) or Milestone
Dates in accordance with the applicable provisions of this Contract.
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4.8 The Construction Manager agrees that it shall continually adjust and modify
the Construction Schedule as required by this Contract and in order to reflect
and account for all events and occurrences encountered in or associated with the
performance of the Work which may delay Substantial Completion of the Work or
preclude the Owner from using and occupying all, or any portion of the Work, for
its intended purpose on or before the Completion Date(s) or Milestone Dates
(hereinafter referred to as a "Delaying Event"). Should a Delaying Event take
place, the Construction Manager shall meet with the Owner and Architect, as and
when requested, to discuss the situation and identify responses and alternatives
which will reduce or eliminate the impact of the Delaying Event and shall
modify, revise and adjust the Construction Schedule accordingly, pursuant to the
direction of the Owner. The Construction Manager shall revise and modify the
Construction Schedule, in response to any Delaying Event, and prioritize the
Work in such a fashion to allow the Owner to use and occupy as much of the Work
as possible for its intended purpose on or before the Completion Date(s) and
Milestone Dates.
4.8.1 The Construction Manager shall notify the Owner in writing within seven
(7) days after the Construction Manager first recognizes or should, with the
exercise of reasonable diligence have recognized (whichever is earliest) that it
is being delayed by a Delaying Event. The Construction Manager shall not be
entitled to any extension of the Completion Date(s) or Milestone Dates on
account of any such Delaying Event unless a proper and timely claim is made by
the Construction Manager, as required by this Contract and such Delaying Event
is an Excused Delay. In order to achieve Substantial Completion of the Work by
the Completion Date(s) and the Milestone Dates, as it/they may be extended
pursuant to this Contract, the Construction Manager agrees, without any increase
in the Guaranteed Maximum Price (or any Separate GMP, as applicable) or any
additional compensation of any kind, to assign more personnel and increase
construction manpower, increase the number of working hours per shift, working
days per week, or amount of construction equipment, reschedule activities, work
overtime and take such other measures to the extent necessary to overcome delays
which are attributable to the Construction Manager, its Subcontractors or
Suppliers at any tier and any other persons or entity performing Work under
contract with, on behalf of or under the direction or supervision of the
Construction Manager and which are not an Excused Delay.
ARTICLE 5
CONTRACT SUM
5.1 The Owner shall pay the Construction Manager in current funds for the
Construction Manager's performance of the Contract, the Contract Sum consisting
of the Cost of the Work as defined in Article 7, the Fixed General Conditions
established in Section 5.2.1.2 and the Construction Manager's Fee, which shall
be a fixed amount equal to three and one quarter percent (3.25%) of the total of
the Cost of the Work and the Fixed General Conditions, excluding any OCIP and/or
Subguard Insurance credits, agreed in each GMP Amendment and Separate GMP
Amendment, not to exceed Twelve Million Twenty-Five Thousand Dollars
($12,025,000). The Construction Manager's Fee shall be the Construction
Manager's sole compensation for its profit, home office services and
supervision, overhead and for any and all other costs or expenses incurred in
connection with the performance of the Work, except for items specifically
included in the Cost of the Work and Fixed General Conditions. There shall be no
increase in Construction Manager's Fee by reason of any increase in the Cost of
the Work affected by Change Order or Change Directive or by a claim of
Construction Manager following the establishment of the contract price in each
GMP Amendment or Separate GMP Amendment.
In addition to the Construction Manager's Fee, Construction Manager shall,
subject to the conditions herein specified, be paid up to an additional Five
Hundred and Forty Thousand Dollars ($540,000) (the "Incentive Fee") based upon
the ability of the Construction Manager to buy subcontracts and purchase
agreements at costs below the lowest bid submitted to and selected by the Owner,
either (i) by post bid negotiation of a lower cost; or (ii) by the suggestion by
Construction Manager, and acceptance by Owner, of post-bid value engineering
changes in the Work ("Bid Savings"). Owner may, in its sole discretion, accept
or reject value engineering proposal submitted by Construction Manager.
Incentive Fee shall accumulate through the buy-out phase of the Project and will
be finalized at the completion of the Project. Bid Savings will include,
subcontractor post bid buy-down and subcontractor post bid value
8
engineering accepted by Owner, but will specifically exclude scope reductions as
a form of savings. The amount of Bid Savings shall be determined by the Owner in
good faith. If Construction Manager fails to achieve Substantial Completion and
Final Completion of the Work within the time specified by the Contract Documents
or is in default of any material obligation under the Contract Documents, or if
this Agreement is terminated for any reason whatsoever before Final Completion,
no Incentive Fee shall be earned. If Construction Manager fails to achieve the
Work required by each of the Milestone Dates highlighted in Exhibit H to this
Agreement, the maximum amount of Incentive Fee shall reduce by Ten Thousand
Dollars ($10,000) for each of the highlighted Milestone Dates that is not
achieved. If earned, Incentive Fee Incentive Fee shall paid within 30 days
following the Architect's certification of Final Completion of the Work.
5.1.1 In addition to the foregoing, by execution of each Separate GMP Amendment
and GMP Amendment, the Construction Manager represents that it has clarified and
resolved all reasonably apparent questions, uncertainties, ambiguities or
inconsistencies relating to the Work required by the Contract Documents that are
in existence as of the date of and applicable to that Separate GMP Amendment or
GMP Amendment. Accordingly, the Construction Manager represents and warrants
that: (1) the GMP (or any Separate GMP, as applicable) established in the
applicable Separate GMP Amendment and/or GMP Amendment executed by the Owner and
Construction Manager is adequate to compensate the Construction Manager for all
Work required by or reasonably inferable from the Contract Documents identified
in the applicable Separate GMP Amendment and/or GMP Amendment executed by the
Owner and Construction Manager; (2) the Completion Date(s) and Milestone Dates
established by this Contract are adequate to allow the Construction Manager to
complete that Work fully and properly within the time established, and the
Construction Manager has available and will supply sufficient manpower
(including necessary supervision and support services) to complete its Work,
fully and properly, within the Completion Date(s) or Milestone Dates, as the
case may be; and (3) the Construction Manager otherwise has and will supply
sufficient personnel and resources to perform its Work in a full, timely and
proper manner and to comply with all of the terms and conditions set forth in
the Contract Documents. The Construction Manager expressly acknowledges and
agrees, based on the foregoing, that it will not be entitled to any increase in
the GMP (or any Separate GMP, as applicable) and/or any extension in the
Completion Date(s) or Milestone Dates for the performance of the Work included
in that GMP (or Separate GMP, as applicable) to the extent that the Work is
required by or reasonably inferable from the Contract Documents.
5.2
5.2.1 The sum of the Cost of the Work, the Fixed General Conditions and the
Construction Manager's Fee is guaranteed by the Construction Manager not to
exceed the amount set forth in the GMP Amendment hereafter executed by the Owner
and Construction Manager, subject only to such increases (or decreases) as are
permitted by the provisions of this Contract. Such maximum sum is referred to in
the Contract Documents as the Guaranteed Maximum Price (`GMP'). The sum of the
Cost of the Work, Fixed General Conditions and the Construction Manager's Fee
applicable to any Early Work (including without limitation preconstruction
services) is guaranteed by the Construction Manager not to exceed the amount set
forth in the applicable Separate GMP Amendment executed by the Owner and
Construction Manager, subject only to such increases (or decreases) as are
permitted by the provisions of this Contract. This maximum sum with respect to
the separate items of Early Work established in each Separate GMP Amendment is
referred to in the Contract Documents as the Separate Guaranteed Maximum Price
(or Separate GMP).
5.2.1.1 Upon the Date of Final Completion of the Work, or at any time that the
Owner reasonably requests, an accounting will be made to the Owner of the Cost
of the Work. If such accounting, as approved by the Owner, reflects that the
final Cost of the Work plus the Construction Manager's Fee, as actually incurred
by Construction Manager on the Project, is less than the GMP excluding Fixed
General Conditions established in the GMP Amendments and Separate GMP Amendments
executed by the Owner and Construction Manager (as modified pursuant to any
Change Orders or Change Directives executed by the Owner) the Owner will be
entitled to all such savings. Further, Construction Manager shall not share in
any savings in any allowance item or in any unused contingency, and all of such
savings shall belong to the Owner. The Owner and its representatives shall have
the full right to audit the Cost of the Work from time to time and the
Construction Manager shall make available to the Owner and the Owner's
representatives
9
(including the Owner's lenders) all financial and accounting records relating to
the Work. Payment of Savings by the Construction Manager to the Owner, if so
required, shall be made with Final Payment to the Construction Manager as
required by this Agreement. Construction Manager's preconstruction services fee
shall be treated as a lump sum, not subject to audit, or reduction and any
savings accomplished by the Construction Manager with respect to such
preconstruction services fee shall be retained by Construction Manager and shall
not be subject to the provisions of this Section regarding calculation or
sharing of savings in the Cost of Work.
5.2.1.2 The total sum billed by the Construction Manager for General Conditions
shall be set forth as a lump sum in each GMP Amendment and Separate GMP
Amendment, (the "Fixed General Conditions"). The Fixed General Conditions so
agreed shall increase only if the Owner lets all of the Work to the Construction
Manager (it is anticipated that there will be multiple GMP Amendments and/or
Separate GMP Amendments required to incorporate all of the Work) and Substantial
Completion of the Work extends beyond February 28, 2008 as a result of Owner
Caused Excused Delays. In applying the preceding sentence, however, Owner Caused
Excused Delay of the type described in Section 4.4 (iv), (v) or (vi) shall not
be considered. Rather, the February 28, 2008 date shall automatically extend for
the period of any such Excused Delay and there shall be no increase in Fixed
General Conditions relating thereto. Construction Manager shall provide notice
of any claimed Excused Delay, and resulting claim for increase in Fixed General
Conditions, pursuant to the applicable provisions of this Contract for
consideration by Owner. The notice must contain an itemization with reasonable
backup and specificity of the additional general conditions cost incurred. Fixed
General Conditions shall increase by the actual, reasonable and documented
increased costs of general conditions items incurred by the Construction Manager
as a result of the Excused Delay of the Completion Date as established pursuant
Article 36 of the General Conditions, provided that the percentage of increased
Fixed General Conditions to the increased Cost of Work shall in no event exceed
the lesser of (x) 5.5%; and (y) the percentage of Fixed General Conditions to
GMP in the final GMP Amendment, and shall be subject to the remaining provisions
of this Section. Attached to this Agreement, as Exhibit J is a Matrix that
supplements Articles 7 and 8 and categorizes costs as either Fixed General
Conditions or other Cost of Work. No item listed as a Fixed General Conditions
Cost may be charged as a Cost of Work. No item listed in Section 7.4 may be
charged as either Fixed General Conditions or Cost of Work. Fixed General
Conditions Cost shall be treated as a lump sum, not subject to audit, or
reduction, and any savings accomplished by the Construction Manager with respect
to Fixed General Conditions Cost shall be retained by Construction Manager.
5.2.3 Unit prices established in a GMP Amendment or Separate GMP Amendment shall
apply to net increases in quantities of the same item. The unit prices will also
be applied to net decreases in quantities of the same items, provided, however,
that the Construction Manager shall be entitled to reasonable administrative
expenses (including any restocking charges which may be payable to
Subcontractors or suppliers) in processing any such deductions from the Work.
The unit prices are inclusive of all overhead, profit and general conditions
items. If the quantities originally contemplated for any of the unit prices are
so changed in a proposed Change Order or Change Directive, or other
circumstances relating to the Work at issue arise so that application of such
unit prices to the quantities of Work proposed will cause substantial inequity
to the Owner or Construction Manager, the applicable unit prices shall not apply
and the adjustment in the Contract Sum shall be determined by mutual agreement
of the Owner and Construction Manager or pursuant to the provisions of Article
17 in the General Conditions.
5.2.4 Construction Manager's Acknowledgments. The Construction Manager
acknowledges that, pursuant to a Separate GMP Amendment of even date herewith it
has performed will perform certain services and work prior to beginning
construction of the Work (which services and work are referred to herein as the
"Preconstruction Phase Services" and include, without limitation the services
described in the remaining subsections of this Section 5.2), in order to assist
the Owner and Architect with the development and delineation of the scope and
nature of the work on the Project, and specifically to assess the cost and
feasibility of performing and constructing the work set forth in the designs
prepared by the Architect within the time and Construction Budget limitations
set forth in this Contract. The Construction Manager acknowledges in this regard
that a Construction Budget of Three Hundred and Forty Million Dollars
($340,000,000) has been established by the Owner for the total Cost of the Work.
References herein to the
10
"Construction Budget" shall mean the budget for construction costs established
above. The Construction Manager acknowledges that the Owner does not intend to
execute a GMP Amendment establishing a Guaranteed Maximum Price for the Work
that exceeds the Construction Budget, except as the Construction Budget may be
increased by the Owner in writing pursuant to the terms of this Contract. By
execution of this Agreement, the Construction Manager accepts the Construction
Budget, subject to adjustments necessary due to future changes in the scope and
nature of the Work required by the Owner. Such acceptance by the Construction
Manager does not constitute a guaranteed maximum price or a guarantee that the
estimates of or actual construction costs for the Work will not exceed the
Construction Budget. However, the Construction Manager agrees to notify the
Owner of any events or circumstances that the Construction Manager believes
require an increase in the Construction Budget.
5.2.5 Value Engineering Services, Nature and Scope. The Construction Manager
agrees to provide the Owner with those technical, professional and other
services within the Construction Manager's capabilities, and with such
information, suggestions, evaluations and assessments, as may be requested or
required by the Owner and/or Architect (and agreed to be provided by the
Construction Manager) in connection with the delineation and specification of
the Work and the assessment of the cost and feasibility of performing such work.
Without accepting legal responsibility for any part of the design prepared by
the Architect other than as set forth in Sections 5.1.1, 5.2.6 and 14.4 of this
Agreement, the Construction Manager hereby specifically agrees to: (1) evaluate
the program, schedule and Construction Budget for the Work established by the
Owner in order, among other things, (a) to assess the reasonableness of the
schedule and Construction Budget based on the Owner's program for the Work, (b)
to identify and evaluate alternatives to the Owner's program, schedule, and
Construction Budget so as to increase the cost-effectiveness of the designs and
reduce the time required for construction, (c) to evaluate and recommend
alternative materials and systems and methods of achieving the Owner's program,
schedule and Construction Budget requirements or other design parameters, and
(d) to assist the Owner in planning for the construction of the Work; (2)
prepare and review with the Owner and Architect a schedule for the construction
of the Work, and make recommendations regarding the availability of materials
and labor, time requirements for procuring long-lead items, installation and
construction, and other factors relating to time of construction; (3) prepare
and review with the Owner detailed estimates of the Construction Cost for the
Work, and advise the Owner regarding any circumstances that may indicate that
the Construction Cost may exceed the Construction Budget as established by the
Owner (and in such event make recommendations to the Owner regarding alternative
designs or changes in construction means or methods which may save costs with
respect to construction of the Work); and (4) recommend to the Owner that
appropriate investigations, surveys, tests, analyses and reports be obtained as
necessary for the proper execution of the Work.
5.2.6 Cost Estimates and GMP Proposal. The Construction Manager shall provide
the Owner with real time estimates of the probable Construction Cost for the
Work so that the Owner may evaluate the estimated Construction Costs in relation
to the Construction Budget. In this regard, based upon the Owner's review and
approval, the Architect shall prepare design documents consisting of Drawings,
Specifications and other documents which generally fix and describe the size and
character of the Work with respect to architectural, structural, mechanical,
electrical, civil, and landscape systems, materials, interior design and
furnishings and such other elements as may be appropriate (hereinafter the
"Design Documents"). The Design Documents shall be submitted to the Construction
Manager, who shall evaluate them and provide the Owner with a written estimate
of the probable Construction Cost for the Work. The Construction Manager shall
notify the Owner, promptly and in writing, if it believes that the Design
Documents do not adequately fix and describe the scope of the Work so that the
Construction Manager may submit an accurate and complete estimate to the Owner.
The "Construction Cost" as estimated by the Construction Manager shall include
all of the Work required by or reasonably inferable from the applicable Design
Documents, including all of the items identified as the responsibility of the
Construction Manager in the Construction Budget as developed and agreed to by
the Owner and Construction Manager.
5.2.6.1 The Construction Manager shall submit with each cost estimate, the
documentary basis for the estimate (hereinafter "Proposal Estimate"). The
Proposal Estimate shall clearly itemize the estimated costs of performing each
division of Work and include room-by-room sub-itemization as required to present
a complete and detailed cost estimate and to allow a detailed cost review. The
Proposal Estimate shall
11
include all quantity takeoffs, crew, equipment, calculations of rates of
production and progress, copies of quotations and the basis thereof from
Subcontractors and suppliers and memoranda, narratives, consultant's reports,
schedules, work sequences assumed and all other information used by the
Construction Manager to arrive at the prices contained in the applicable
estimate. Estimated costs shall be broken down into the Construction Manager's
usual estimate categories such as direct labor, repair materials, permanent
materials, equipment costs, expendable materials, etc. as appropriate. Indirect
costs and contingencies should be completely detailed. All costs shall be
identified.
5.2.6.2 In connection with the evaluation of the probable Construction Costs for
the Work, the Construction Manager shall meet directly with the Architect and
Owner, at such times and places as are directed by the Owner and prior to the
preparation of each such estimate, to review the design information then
existing for the Work and establish the design parameters upon which the
estimate of probable Construction Cost is to be based. Written minutes of each
such meeting will be maintained by the Construction Manager, circulated to all
participants and revised as necessary to reflect the agreement of all parties.
After each Construction Cost estimate is prepared, the Construction Manager,
Architect and Owner shall again meet to review the estimate and confirm that it
properly takes account of the applicable design parameters. Once the parties
agree that the estimate has been appropriately based on the design information
provided to the Construction Manager, the estimate will be considered complete.
5.2.6.3 If the amount of any estimate given by the Construction Manager during
the Preconstruction Phase exceeds the Construction Budget (or any portion
thereof), then the Construction Manager shall prepare and submit specific
comments, recommendations and alternatives for modifying or redrawing the Design
Documents to fit within the limitations of the Construction Budget, or
applicable portion thereof (however the Construction Manager shall not be
responsible for the Architect's design work, except as set forth in Sections
5.1.1 and 14.4 of this Agreement, or required to pay for or to redraw or modify
the Design Documents) and shall meet with and assist the Owner and Architect, as
and when requested, in evaluating the situation and the Construction Manager's
analysis. Thereafter, the Owner shall exercise one of the following options: (1)
increase the Construction Budget (or applicable portion thereof) to equal the
Construction Manager's estimate; (2) require the Architect to modify, redesign
and/or change the designs set forth in the Design Documents, pursuant to the
direction and approval of the Owner, to fit within the limitations of the
Construction Budget (or applicable portion thereof), and to issue revised
Drawings, Specifications or other documents reflecting such modifications,
redesigns and/or changes, which items shall again be submitted to the
Construction Manager for evaluation and pricing pursuant to the provisions
above; or (3) increase the Construction Budget (or applicable portion thereof)
partially (i.e. to an amount greater than the Construction Budget (or applicable
portion thereof) but less than the amount of the Construction Manager's
estimate) and require the Architect to modify, redesign and/or change the
designs set forth in the Design Documents, pursuant to the direction and
approval of the Owner, to fit within the limitations of the revised Construction
Budget, and to issue revised Drawings, Specifications or other documents
reflecting such modifications, redesigns and/or changes, which items shall again
be submitted to the Construction Manager for evaluation and pricing to the
provisions above.
5.2.6.4 If the Owner chooses option (2) or (3) as set forth in Section 5.2.6.3
above and the estimate submitted by the Construction Manager in response to the
designs set forth in the Design Documents as modified, redesigned and/or changed
by the Architect and approved by the Owner fails to fit within the limits of the
Construction Budget (or applicable portion thereof), as it may have been revised
by the Owner pursuant to option (3) above, then the Owner may, in its sole and
absolute discretion, exercise any of the options described in Section 5.2.6.3
above and/or terminate this Contract (which termination shall be deemed without
cause and shall entitle the Construction Manager to compensation as set forth in
the General Conditions).
5.2.7 Establishment of GMP. Once the Owner determines that the Design Documents
are adequate for the purpose of providing a Guaranteed Maximum Price for the
entire Work or the Early Work being let by Owner, as the case may be, the
Construction Manager shall then submit a Guaranteed Maximum Price for the Work
or Early Work if it is built in accordance with the requirements for the Work or
Early Work set forth in and/or reasonably inferable from said Design Documents
(which documents, once adequate for the
12
purpose of providing a GMP, are referred to herein as the "GMP Design Documents"
and which price is referred to as the "GMP Proposal"). The GMP Proposal
submitted by the Construction Manager shall include all of the Work required by
or reasonably inferable from the applicable GMP Design Documents, including all
of the items identified as the responsibility of the Construction Manager in the
Construction Budget as developed and agreed to by the Owner and Construction
Manager.
5.2.8 Acceptance/Rejection of GMP Proposal; GMP Amendment; Establishment of
Guaranteed Maximum Price. If the amount of the GMP Proposal, is equal to or
below the Construction Budget and the Owner elects to proceed with the
Construction Manager rather than another bidder (which determination shall be
made by Owner in Owner's sole discretion), then the Owner and Construction
Manager shall execute a written amendment to this Contract (hereinafter referred
to as the "GMP Amendment"), in the form attached hereto as Exhibit A, which
shall establish a firm Guaranteed Maximum Price for the Work if it is built in
accordance with the requirements of the Work set forth in or reasonably
inferable from the GMP Design Documents listed in the GMP Amendment executed by
the Owner and Construction Manager. The Owner agrees that if the Design
Documents prepared by the Architect subsequent to the execution of the GMP
Amendment contain Material Changes, as defined in this Contract, then the
Construction Manager shall be entitled to an increase in the GMP as a result of
such Material Changes, in accordance with the applicable provisions of the
Contract.
5.2.9 Early Work; Separate GMP Amendments. The time when the GMP Proposal is
submitted shall be determined by the Owner and may be when Construction
Documents are completed for the Work (in which event the GMP Design Documents
identified in the GMP Amendment shall be the Construction Documents upon which
the GMP is based). However, the Owner may proceed with construction of certain
aspects of the Work (such as grading and related site work, foundations,
structural or other portions of the Work) before the design for the remaining
Work is completed. Work commenced in this regard is referred to herein as "Early
Work." In the event the Owner decides to proceed with Early Work, the
Construction Manager shall submit a Separate GMP Proposal for such Early Work
(in conformance with the provisions of this Agreement applicable to the GMP
Proposal), in which event references to the GMP Proposal, Proposal Estimate,
Construction Budget, GMP Design Documents and Completion Date(s) or Milestone
Dates shall be treated as referring to the Separate GMP Proposals and proposal
estimates for the Early Work, the portion of the Construction Budget applicable
to the Early Work, the design documents upon which the Separate GMP Amendment is
based as identified therein, and the Completion Date(s) or Milestone Dates for
the Early Work, respectively. Once agreed to by the Owner and Construction
Manager, the parties shall execute a "Separate GMP Amendment" (in the form
attached hereto as Exhibit B) establishing a "Separate GMP" for the Early Work.
(The Owner and Construction Manager acknowledge that an initial Separate GMP
Amendment has been executed by the Parties [covering preconstruction services
and related Work] and is attached hereto as Exhibit C). Thereafter, the
Construction Manager and Owner shall continue, pursuant to the provisions of
this Agreement, toward the establishment of a GMP proposal for all of the Work
(including the Early Work already commenced), provided however, that Owner shall
be free, in Owner's sole discretion to let the remaining Work to another bidder.
If a GMP Amendment is established for all of the Work, the provisions of each
Separate GMP Amendment (as modified by any Change Orders issued with respect to
such Separate GMP) shall, at Owner's election, be incorporated into (and
superseded by) the GMP Amendment.
ARTICLE 6
CHANGES IN THE WORK
6.1
6.1.1 Adjustments to the GMP (or any Separate GMP, as applicable) on account of
changes in the Work, including deletions of portions of the Work, will be
determined by any of the methods listed in Article 17 of the General Conditions.
6.1.2 In calculating adjustments to this Contract, the terms "cost" and "costs"
as used in the above referenced provisions of the General Conditions shall mean
the Cost of the Work as defined in Article 7 of this Agreement and the terms
"fee" and "a reasonable allowance for overhead and profit" shall mean the
13
Construction Manager's Fee as defined in Section 5.1 of this Agreement. The
Construction Manager shall negotiate and broker all costs in favor of the Owner
and ensure that such costs are reasonable and at fair market value. General
Conditions costs payable to the Construction Manager shall not be increased
above the Fixed General Conditions except and only to the extent permitted by
Section 5.2.1.2 above.
ARTICLE 7
COSTS TO BE REIMBURSED
7.0 The term Cost of the Work shall mean those costs actually and necessarily
incurred by the Construction Manager in the proper performance of the Work. Such
costs shall be at rates not higher than the standard paid (fair market value) at
the place of the Project including costs related to quality, time, etc., or the
unit rates established in the Prevailing Wage Schedule, applicable GMP Amendment
or Separate GMP Amendment executed by the Owner and Construction Manager, except
with prior consent of the Owner. The Cost of the Work shall include only the
items expressly set forth and authorized for reimbursement in this Article 7.
7.1 REIMBURSABLE PROJECT COST WITHIN THE COST OF WORK
7.1.1 LABOR COSTS
7.1.1.1 Wages, salaries, bonuses and benefits of construction workers directly
employed by the Construction Manager to perform the construction of the Work at
the Site, or, with the Owner's advance written approval, off-site workshops.
Such wages, salaries, and bonuses shall be agreed between Owner and Manager in
the GMP Amendment or Separate GMP Amendment, and, in the case of wages of
construction workers performing the construction of the convention center
portion of the Work shall be in accordance with the Prevailing Wage Schedule.
The term "benefits" shall include costs earned and paid (for the period during
which the employee was performing the Work and excluding any period of
suspension of the Work, unexcused delay of the Work, unexcused absence by the
employee or period during which the employee was performing work on other jobs)
for: (i) unemployment compensation, (ii) social security or state unemployment
taxes, (iii) car and truck allowances or lease expense, (iv) for personnel
covered by collective bargaining agreements, insurance, contributions,
assessments and benefits required by law or such collective bargaining
agreements, and, (v) for personnel not covered by such agreements, customary or
legally required benefits such as sick leave, medical and health benefits,
holidays, vacations and pensions. Benefits shall be consistent with Construction
Manager's demonstrated past practice and shall not exceed 50% of wages and 35%
of salaries of affected personnel for the period so allowed.
7.1.2 SUBCONTRACT COSTS
7.1.2.1 Payments made by the Construction Manager to Subcontractors and
Suppliers in accordance with the requirements of the subcontracts or purchase
orders related to this Contract, including any amount paid for Subcontractor or
Supplier performance or payment bonds (provided that no fee may be charged or
recovered by Construction Manager or such Subcontractor or Supplier on the cost
of such bond), subject to the limitations imposed by this Contract. Provisions
shall be made in Subcontracts at all tiers for audit of bond premium and refund
to Owner of any rebate or credit of premium paid by Owner.
7.1.3 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED
CONSTRUCTION
7.1.3.1 Costs, including transportation, of materials and equipment incorporated
into the completed Work or to be incorporated into the Work and stored off-site
in compliance with Section 12.7 of this Agreement and Article 27 of the General
Conditions.
7.1.3.2 Net costs of materials described in the preceding Section 7.1.3.1 in
excess of those actually installed but required to provide reasonable allowance
for waste and for spoilage. Unused excess materials, if any, shall be handed
over to the Owner at the completion of the Work or, at the Owner's option, shall
be
14
sold by the Construction Manager as the Owner's broker, to the highest buyer.
Amounts realized, if any, from such sales shall be credited to the Owner as a
deduction from the Cost of the Work.
7.1.4 COSTS OF OTHER MATERIALS AND EQUIPMENT, AND RELATED ITEMS
7.1.4.1 Costs, including transportation, installation, maintenance, dismantling
and removal of materials, supplies, machinery, equipment, and hand tools not
customarily owned by the construction workers, which are provided by the
Construction Manager at the Site and fully consumed in the performance of the
Work; and cost less salvage value on such items if not fully consumed, whether
sold to others or retained by the Construction Manager, cost for items
previously used by the Construction Manager shall be charged at fair market
value.
7.1.4.2 Rental charges for machinery equipment, and hand tools not customarily
owned by the construction workers which are provided by the Construction Manager
at the Site, whether rented from the Construction Manager or others, and costs
of transportation, installation, minor repairs and replacements, dismantling and
removal thereof shall be charged at fair market value (based upon the
depreciated or amortized book value of the item leased) Rates and quantities of
equipment rented shall be consistent with and shall not exceed those prevailing
in the area. The Construction Manager shall submit to the Owner evidence of the
purchase price of such machinery or equipment if purchased specifically for this
Work, or the rental charges as applicable. No machinery, equipment or hand tools
may be leased from Construction Manager or any entity that it has any ownership
interest in or from which it derives any benefit except with the prior written
approval of Owner. Owner shall be entitled to audit all records of the supplier
of any such property and Construction Manager shall incorporate such right into
its lease or purchase agreements. Notwithstanding any other provision of the
Contract Documents, the total amount of the rental cost charged to the Owner for
any individual piece of Construction Manager owned machinery or equipment shall
not exceed seventy percent (70%) of its current fair market value or depreciated
book value (whichever is less), at the time of its use on the Project, and Owner
shall have the option, upon Final Completion to purchase any such equipment by
paying the remaining percentage of such fair market value.
7.1.5 MISCELLANEOUS COSTS
7.1.5.1 Sales, use, gross receipts or similar taxes or duties imposed by a
governmental authority, which are related to the Work and for which the
Construction Manager is liable.
7.1.5.2 Fees and assessments for permits, licenses and inspections for which the
Construction Manager is required by the Contract Documents to secure and pay.
The respective responsibilities of the Owner and Construction Manager to procure
and pay for the various permits, licenses and inspections related to the Work
are set forth in Exhibit D to this Agreement.
7.1.5.3 Fees of testing laboratories for tests required by the Contract
Documents, except those related to defective or nonconforming Work for which
reimbursement is excluded by Article 28 of the General Conditions or other
provisions of the Contract Documents and which do not fall within the scope of
Sections 7.2.1 through 7.3 below.
7.1.5.4 That portion directly attributable to this Contract of premiums for
insurance and bonds required by this Contract, except for: (i) insurance
coverage provided and paid for by the Owner through the Owner Controlled
Insurance Program described in Article 23 of the General Conditions which costs
shall not be included in the Cost of the Work, and (ii) umbrella or blanket
insurance excluded from reimbursement by Section 7.4.7 of this Agreement. Costs
of premium for bonds shall not include the cost of bonds obtained by the
Construction Manager to discharge liens filed against the Project or the Owner,
which shall be paid by Contractor and not compensated by Owner in any manner,
unless the lien is due to nonpayment by the Owner and such nonpayment was not
due to the fault of the Construction Manager.
7.1.5.5 Royalties and license fees paid for the use of a particular design,
process or product required by the Contract Documents; the cost of defending
suits or claims for infringement of patent rights arising from
15
such requirement by the Contract Documents; payments made in accordance with
legal judgments against the Construction Manager resulting from such suits or
claims and payments of settlements made with the Owner's consent unless caused
by the Construction Manager's fault or negligence; provided, however, that such
costs of legal defenses, judgment and settlements shall not be included in the
calculation of the Construction Manager's Fee and provided that such royalties,
fees and costs are not excluded by other provisions of the Contract Documents.
7.1.5.6 Deposits lost for causes other than the fault or negligence of the
Construction Manager or its Subcontractors or Suppliers at any tier.
7.1.5.7 Costs of proper and legal removal of debris from the Site.
7.1.6 OTHER COSTS
7.1.6.1 Other costs incurred in the performance of the Work if and to the extent
approved by the Owner in writing before such costs are incurred.
7.2 EMERGENCIES: REPAIRS TO DAMAGED, DEFECTIVE OR NONCONFORMING WORK
7.2.1 Costs incurred:
7.2.1.1 In taking action to prevent threatened damage, injury or loss in case of
any emergency affecting the safety of persons and property, as provided in
Paragraph 11(D) of the General Conditions.
7.2.1.2 Repairing or correcting Work damaged or improperly executed by
construction workers other than those in the employ of the Construction Manager
or its Subcontractors at any tier.
7.2.1.3 In repairing damaged Work other than that described in Section 7.2.1.2,
provided such damage did not result from the fault, or negligence of the
Construction Manager or the Construction Manager's personnel, and only to the
extent that the cost of such repairs is not recoverable by the Construction
Manager from others and the Construction Manager is not compensated therefor by
insurance or otherwise. Insurance deductibles under the Owner's property
insurance program ($25,000 per occurrence) for which the Construction Manager is
responsible pursuant to Paragraph 23C(3) of the General Conditions shall be
billed as a Cost of the Work but shall not adjust the GMP.
7.2.1.4 In correcting defective or nonconforming Work performed or supplied by a
Subcontractor or material supplier and not corrected by them, provided such
defective or nonconforming Work did not result from the fault or neglect of the
Construction Manager or the Construction Manager's personnel adequately to
supervise and direct the Work of the Subcontractor or material supplier.
7.2.1.5 Construction Manager shall notify the Owner of the costs that will be
incurred and how they will be paid before repairing or correcting damaged work
per Section 7.2.1.3 above.
7.3 Costs as defined herein shall be actual costs incurred by the Construction
Manager, less all discounts, rebates and salvages, subject to Article 9 of this
Agreement. All payments made by the Owner pursuant to this Article 7, whether
those payments are actually made before or after execution of the Contract, are
included within the GMP (or any Separate GMP, as applicable) in the applicable
Separate GMP Amendment and/or GMP Amendment executed by the Owner and
Construction Manager. The Construction Manager will be entitled to an increase
in the GMP (or any Separate GMP, as applicable) or an extension of time for the
completion of the Work, or both, only as permitted by the provisions of this
Contract.
7.4 Costs Not Reimbursed
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The following costs shall under no circumstance be reimbursed to Construction
Manager and are fully compensated by the payment of the Construction Manager's
Fee under this Agreement:
7.4.1 Except as provided in Sections 7.2.1.2 through 7.2.1.4 above, costs due to
the fault or negligence of the Construction Manager, its Subcontractors, anyone
directly or indirectly employed by any of them, or for whose acts any of them
may be liable, including but not limited to costs for the correction of damaged,
defective or nonconforming Work, disposal and replacement of materials and
equipment incorrectly ordered or supplied, and making good damage to property
not forming part of the Work.
7.4.2 Construction Manager's overhead and general expenses of its business,
principal offices or other off site facilities or offices.
7.4.3 The Construction Manager's capital expenses, including interest on the
Construction Manager's capital employed for the Work.
7.4.4 Rental costs of machinery and equipment, except as specifically provided
in Section 7.1.4.2.
7.4.5 Costs incurred by reason of the Construction Manager's membership in, or
fees paid by the Construction Manager to trade or professional organizations or
societies by reason of the Construction Manager' general business operations.
7.4.6 Entertainment or other similar expenses.
7.4.7 Costs of any umbrella or blanket insurance maintained by Construction
Manager for its business.
7.4.8 Any cost not specifically or expressly described in Sections 7.0 through
7.3 above as Costs of the Work.
7.4.9 Not Used.
7.4.10 Costs which would cause the Guaranteed Maximum Price (or any Separate
GMP, as applicable), if any, to be exceeded, except for increases permitted by
the terms of the Contract Documents.
ARTICLE 8
FIXED GENERAL CONDITIONS COST
8.1 The items included in the "Fixed General Conditions" shall include all of
the Construction Manager's costs and expenses, however described or designated,
that are not either: (i) authorized for reimbursement in Sections 7.0 through
7.3 of this Agreement; or (ii) excluded from reimbursement in Section 7.4 of
this Agreement. Fixed General Conditions costs include the following:
8.1.1 Expenses of the Construction Manager's and Owner's site offices required
by Exhibit I.
8.1.2 Temporary facilities.
8.1.3 Man and material hoists.
8.1.4 Costs of long distance telephone calls and parcel delivery charges,
telephone service at the Site and reasonable xxxxx cash expenses of the Site
office, blueprints, office supplies, and office equipment.
8.1.5 Cost of the Construction Manager's data processing and information
technology services.
8.1.6 Wages, salaries, bonuses and benefits of the Construction Manager's
supervisory and administrative personnel when stationed at the site or at the
principal offices of the Construction Manager while performing activities
directly and exclusively related to the Work. Such wages, salaries and bonuses
17
shall be agreed between Owner and Manager in the GMP Amendment or Separate GMP
Amendment. No overtime wages shall be charged to General Conditions for such
supervisory or administrative personnel. The term "benefits" shall include costs
earned and paid for the period during which the employee was performing the Work
(and excluding any period of suspension of the Work, unexcused delay of the
Work, unexcused absence by the employee or period during which the employee was
performing work on other jobs) for: (i) unemployment compensation, (ii) social
security or state unemployment taxes, (iii) car and truck allowances or lease
expense, (iv) insurance, contributions, assessments and benefits required by law
or collective bargaining agreements, and, (v) for personnel not covered by such
agreements, customary benefits such as sick leave, medical and health benefits,
holidays, vacations and pensions. Benefits shall be consistent with Construction
Manager's past practice and shall not exceed 50% of wages and 35% of salaries of
affected personnel for the period so allowed.
8.1.7 Expenses incurred in accordance with Construction Manager's standard
personnel policy for relocation to the Site (but not from the Site to another
project) and temporary living allowances of personnel required for the Work, in
case it is necessary to relocate such personnel from distant locations.
8.1.8 Travel and subsistence expenses of the Construction Manager's Site
personnel incurred while traveling outside of the Project area while engaged
exclusively in the discharge of duties connected with the Work, which shall not
exceed travel policies and allowances of Xxxxxxx Entertainment Company as
established and amended from time to time.
8.1.9 Other costs described as general conditions costs in the Matrix attached
as Exhibit J to this Agreement.
ARTICLE 9
DISCOUNTS, REBATES AND REFUNDS
9.1 Cash discounts, trade discounts, rebates, refunds and amounts received from
sales of surplus or salvaged materials and equipment shall accrue to the Owner,
and the Construction Manager shall make provisions so that they can be secured
and promptly paid to the Owner or credited against the Cost of the Work. To this
end, Construction Manager agrees to advise Owner in a timely manner of any
discount, trade discount, rebate or refund, the availability of which is
conditioned upon particular payment time or terms and to timely submit to Owner
separate draw requests for any such discounts, trade discount, rebate or refunds
that Owner desires to realize. Provided that Construction Manager so acts,
Construction Manager shall not be required to advance funds, in excess of
$25,000 per item, in order to satisfy its obligation to make provision to secure
such benefits for the Owner under this Section.
ARTICLE 10
SUBCONTRACTS AND OTHER AGREEMENTS
10.1 Those portions of the Work that the Construction Manager does not by mutual
agreement of Owner and Construction Manager perform with the Construction
Manager's own personnel shall be performed under subcontracts or by other
appropriate agreements with the Construction Manager. Owner shall have the right
to approve the scope and content of each bid package. The Construction Manager
shall obtain bids (at least three in each trade for subcontracts or Work that
Construction Manager desires to self-perform, that is in excess of $25,000) from
prospective subcontractors and from suppliers of materials or equipment
fabricated especially for the Work who have been identified as bidders as
provided below in this Section 10.1 and shall deliver such bids to the Architect
and the Owner. The identification of bidders for any bid package shall be made
either (i) by joint agreement of Owner and Construction Manager; or (ii) if
Owner and Construction Manager do not agree upon at least three prospective
subcontractors or suppliers for any bid package, such additional subcontractors
or suppliers as Owner may, unilaterally and in its sole discretion specify for
such bid package. The Owner will determine which bid from the identified bidders
will be accepted, provided that, once the GMP for the Work or the Early Work
being bid has been agreed between the Owner and the Construction Manager, the
lowest bid received shall be accepted unless another
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bid is mutually agreed upon by Owner and Construction Manager. Construction
Manager acknowledges and agrees that the Owner and Architect may be present at
bid packaging strategy meetings, pre-bid meetings and at the receipt and
evaluation of any subcontract bids and at any subsequent interview meetings held
with the apparent low bidders regarding their bid proposals. However, such
attendance or failure to attend by the Owner or Architect shall not relieve the
Construction Manager of its responsibility to ensure that the bids are
responsive and complete and shall not entitle the Construction Manager to any
increase in the Guaranteed Maximum Price and/or any Separate GMP, as applicable.
As soon as practicable after the receipt and evaluation of the applicable
subcontract bids, the Construction Manager will prepare a list of recommended
Subcontractors for each category of the Work for the Owner's review and
approval. The Owner will identify to the Construction Manager, in writing and
with reasonable promptness, the Subcontractor or supplier that Owner has
selected If the Construction Manager proposes to replace a Subcontractor or any
other person or entity previously selected to perform any portion of the Work,
the Construction Manager shall notify the Owner in writing and shall recommend a
substitute and the Construction Manager's reasons for proposing the substitute.
The Construction Manager shall not contract with any such proposed person
without the prior approval of the Owner. There shall be no change in the GMP as
a result of substitution of Subcontractors or suppliers after a GMP or separate
GMP including the Work involved in the substitution has been agreed.
10.2 Subcontracts or other agreements shall conform to the payment provisions of
Sections 12.6 and 12.7, and shall not be awarded on the basis of cost plus a fee
without the prior consent of the Owner. Any proposed Subcontract to be awarded
on the basis of cost plus a fee shall limit the Subcontractor's recovery of cost
to only those costs which are expressly authorized by this Agreement for
reimbursement to the Construction Manager.
10.3 All agreements between the Construction Manager and its Subcontractors
shall preserve and protect the rights of the Owner under the Contract Documents
with respect to the performance of the Work so that the subcontracting thereof
will not prejudice such rights.
10.4 The Construction Manager shall pay each Subcontractor, materialman or
supplier, within seven (7) days of the receipt of payment from the Owner, out of
the amount paid to the Construction Manager pursuant to the Construction
Manager's Application for Payment, the full amount itemized in such Application
for Payment as intended for work performed by such Subcontractor, materialman or
supplier. The Construction Manager shall, by appropriate agreement with each
Subcontractor, materialman or supplier, require them to make payments to
Sub-subcontractors or their suppliers in similar manner. Construction Manager
shall indemnify and hold harmless Owner, Owner's Lenders, Architect and Owner's
Consultants and their respective agents and employees from and against all
claims, demands, damages, losses and expenses, including without limitation
attorneys fees, paid or incurred by Owner in connection with the settlement or
defense of any claim by a Subcontractor, Sub-subcontractor, materialman or
supplier, arising out of or in connection with the failure of Construction
Manager to pay as provided herein, any such Subcontractor, Sub-subcontractor,
materialman, supplier or any other person with whom Construction Manager has
contracted or who is employed directly or indirectly by Construction Manager,
provided Construction Manager has been paid, as required by this Contract, for
the Work that is the subject of such claim.
10.5 If any Subcontractor refuses to furnish a release or waiver required by
Owner, and or any lender, or any title insurance company to either of them (with
respect to Work for which the Owner has made payment to the Construction Manager
in the amounts required by this Contract) Construction Manager shall either
withhold payment from such Subcontractor or furnish a bond for 150% of the
amount claimed and in a form satisfactory to Owner and/or any lender or title
insurance company to either of them, to indemnify them against any such lien. In
the event a Subcontractor files a mechanic's lien or claim for lien against the
Project (and provided Owner has paid Construction Manager as required by this
Contract for the Work that is the subject of such lien or claim), Construction
Manager shall cause such lien or claim for lien to be formally released, bonded
against or satisfied. In the event Construction Manager fails to remove, or
provide a satisfactory bond with respect to, any such lien or claim, Owner shall
have the right to retain out of any payment then or thereafter to become due to
Construction Manager 150% of the amount claimed in
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such lien or claim to indemnify Owner completely against the costs of the lien
or claim for lien that may appear at such time in favor of the person making
such lien or claim, which amount shall include reasonable allowances for the
projected costs, including but not limited to attorneys' fees, to defend any
action in connection therewith or deposits which need to be made to have such
lien released against the Project. Upon the settlement of such claim, any excess
monies held by Owner from such security shall be paid to Construction Manager.
Construction Manager shall similarly indemnify, protect, and defend Owner in
respect of any lien or claim for lien in favor of any person claiming by,
through, or under it, including, among others, its Subcontractors that may
appear after Final Payment has been made by Owner to Construction Manager in the
amounts required by this Contract. The Construction Manager shall have the right
to contest any lien or claim covered by this Section, provided the Construction
Manager has bonded over such lien or claim.
10.6 In the event of the termination of this Contract by the Owner because of
the default of the Construction Manager or for the convenience of the Owner, the
Construction Manager shall assign those subcontracts, or purchase or rental
agreements, which the Owner, in its sole discretion, directs. While this
provision shall constitute a present assignment of Construction Manager's rights
with respect to any and all such subcontract agreements and commitments which
Owner so chooses to assume, the Construction Manager, upon request from Owner,
shall promptly execute and deliver to the Owner written assignments of such
subcontracts, agreements and commitments which the Owner in its sole discretion
so chooses to take by assignment. All of Construction Manager's agreements with
Subcontractors and suppliers shall provide for this assignment, and shall
provide that Owner shall only be responsible to those Subcontractors or
Suppliers for payment for that work performed after the date of any such
assignment and that the Subcontractor shall look solely to the Construction
Manager and not to Owner or the Project for the payment of any amounts due for
work performed prior to such assignment, or for the performance of any other
obligations under the applicable subcontract arising prior to such assignment.
ARTICLE 11
ACCOUNTING RECORDS
11.1 The Construction Manager shall keep full and detailed accounts and exercise
such controls as may be necessary for proper financial management under this
Contract; the accounting and control systems shall follow generally accepted
accounting practices and be satisfactory to the Owner. The Owner, it lenders and
their accountants shall be afforded access at all times upon 48 hours' notice to
the Construction Manager's records, books, correspondence, instructions,
drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other
data relating to this Contract, and the Construction Manager shall preserve
these documents, without charge, for a period of at least three (3) years after
final payment, or for such longer period as may be required by law, and shall,
upon 48 hours' notice, without charge, deliver these documents, for inspection
and copying, to Owner at the site of the Project or at Owner's offices in
Nashville, Tennessee.
ARTICLE 12
PROGRESS PAYMENTS
12.1 Based upon Applications for Payment submitted to the Architect and the
Owner by the Construction Manager and Certificates for Payment issued by the
Architect to the Owner, the Owner shall make progress payments on account of the
Work to the Construction Manager as provided below and elsewhere in the Contract
Documents.
12.2 The period covered by each Application for Payment shall be one calendar
month ending on the last day of the month.
12.3 Provided an Application for Payment in such form and substance as required
by this Contract is received by the Architect and Owner not later than the 25th
day of a month, the Owner shall make payment to the Construction Manager no
later than the 21 days thereafter. If an Application for Payment in proper form
and substance is not received by the Architect and Owner until after the
application date fixed above,
20
payment shall be made by the Owner within 21 days after the Architect's and
Owner's receipt of the proper Application for Payment.
12.4 With each Application for Payment the Construction Manager shall submit,
periodic xxxxx cash accounts, receipted invoices or invoices with check vouchers
attached, Subcontract invoices from the period covered in the Application for
Payment, lien and claim waivers and releases, an updated Project schedule in
electronic format specified by Owner, and any other evidence required by the
Owner or the Architect to demonstrate that cash disbursements already made by
the Construction Manager on account of the Cost of the Work equal or exceed (1)
progress payments already received by the Construction Manager; less (2) that
portion of those payments attributable to the Construction Manager's Fee; plus
(3) retainage if any, applicable to prior progress payments. Fixed General
Conditions shall be invoiced in a manner that separates them from Cost of Work
and apportioned to each Application for Payment in accordance with the
percentage duration of the Work that has expired at the time of the respective
Application for Payment, but shall not be subject to retainage. Duration of the
Work shall be the period between actual and substantial commencement of the Work
and the agreed date for Substantial Completion of the Work set forth in the
applicable GMP Amendment or Separate GMP Amendment, as the case may be, as
extended by Excused Delay other than delay in authorizing the commencement of
the Work. Construction Manager's Fee shall be subject to retainage.
12.5 CONTRACTS WITH A GUARANTEED MAXIMUM PRICE
12.5.1 Each Application for Payment shall be based upon the most recent Schedule
of Values submitted by the Construction Manager in accordance with the Contract
Documents. The Schedule of Values shall allocate the entire Guaranteed Maximum
Price (or any Separate GMP, as applicable) among the various Costs of Work,
except that the Construction Manager's Fee and Fixed General Conditions shall be
shown as separate line items. The Schedule of Values shall be prepared in such
form and supported by such data to substantiate its accuracy as the Architect
and Owner may require. If the Owner determines that the Schedule of Values is
unbalanced, the Construction Manager shall, on demand, correct the Schedule
before the next payment to the Construction Manager shall be made. This Schedule
of Values, unless objected to by the Architect and the Owner, shall be used as a
basis for reviewing the Construction Manager's Applications for Payment. The
Owner agrees that individual line items set forth in the Schedule of Values
shall not constitute line item guarantees with respect to the Work covered by
such line items. The Construction Manager shall be allowed to apply any "excess"
amounts available in any line item to "shortages" in other line items provided
that the GMP is not exceeded and provided that no amounts may be transferred
from Cost of Work to Fixed General Conditions or used to pay items that are not
reimbursable.
12.5.2 Applications for Payment shall show the percentage completion of each
portion of the Work as of the end of the period covered by the Application for
Payment. The percentage completion shall be the lesser of (1) the percentage of
that portion of the Work which has actually been completed or (2) the percentage
obtained by dividing (a) the expense which has actually been incurred by the
Construction Manager on account of that portion of the Work for which the
Construction Manager has made or intends to make actual payment prior to the
next Application for Payment by (b) the share of the Guaranteed Maximum Price
(or any Separate GMP, as applicable) allocated to that portion of the Work in
the Schedule of Values.
12.5.3 Subject to other provision of the Contract Documents, the amount of each
progress payment shall be computed as follows:
12.5.3.1 Take that portion of the Guaranteed Maximum Price (or any Separate GMP,
as applicable) properly allocable to the completed Work as determined by
multiplying the percentage completion of each portion of the Work by the share
of the Guaranteed Maximum Price (or any Separate GMP, as applicable) allocated
to that portion of the Work in the Schedule of Values. Pending final
determination of cost to the Owner of changes in the Work, amounts therefore
shall not be included in any payment.
21
12.5.3.2 Add that portion of the Guaranteed Maximum Price (or any Separate GMP,
as applicable) properly allocable to materials and equipment delivered and
suitable stored at the Site for subsequent incorporation in the Work or, if
approved in advance by the Owner, suitable stored off the Site at a location and
upon terms agreed in writing with the Owner.
12.5.3.3 Add the Construction Manager's Fee. The Construction Manager's Fee
shall be computed upon the Cost of the Work described in Sections 12.5.3.1 and
12.5.3.2 above at the rate stated in Section 5.1 above.
12.5.3.4 Apply retainage as required by the terms of this Contract.
12.5.3.5 Subtract the aggregate of previous payments made by the Owner.
12.5.3.6 Subtract the shortfall, if any, indicated by the Construction Manager
in the documentation required by Section 12.4 to substantiate prior Applications
for Payment, or resulting from errors subsequently discovered by the Owner's
accountants in such documentation.
12.5.3.7 Subtract amounts, if any, and without duplication for amounts already
subtracted, for which the Architect or Owner has withheld or nullified a
Certificate for Payment as provided in Article 28 of the General Conditions.
12.5.3.8 Add Construction Manager's apportioned Fixed General Conditions.
12.5.3.9. Add, upon Substantial Completion of the entire Work, a sum sufficient
to increase the total payments to the Construction Manager to one hundred
percent (100%) of the Contract Sum, not to exceed the GMP, less 150% of the
value of Punch List and amounts retained pursuant to Section 13.6.
12.6 Except with the Owner's prior approval, payments to Subcontractors included
in the Construction Manager's Applications for Payment shall not exceed an
amount for each Subcontractor calculated as follows:
12.6.1 Take that portion of the Subcontract Sum properly allocable to the
completed Work as determined by multiplying the percentage completion of each
portion of the Subcontractor's Work by the share of the total Subcontract Sum
allocated to that portion in the Subcontractor's schedule of values, less
retainage as required by the terms of this Contract. Pending final determination
of amounts to be paid to the Subcontractor for changes in the work, amounts
therefore shall not be included.
12.6.2 Add that portion of the Subcontract Sum properly allocable to materials
and equipment delivered and suitable stored at the Site for subsequent
incorporation in the Work or, if approved in advance by the Owner, suitably
stored off the Site at a location agreed upon in writing, less retainage as
required by the terms of this Contract.
12.6.3 Subtract the aggregate of previous payments made by the Construction
Manager to the Subcontractor.
12.6.4 Subtract amounts, if any, for which the Architect or the Owner has
withheld or nullified a Certificate for Payment by the Owner to the Construction
Manager for reasons which are the fault of the Subcontractor.
12.6.5 The Subcontract Sum is the total and actual amount stipulated in the
subcontract and Subcontract Change Orders to be paid by the Construction Manager
to the Subcontractor for the Subcontractor's satisfactory performance of the
subcontract, subject to the limitations of this Contract and the subject
subcontract and any subcontract guarantied maximum price.
22
12.7 Except with the Owner's prior approval, the Construction Manager shall not
make advance payments to suppliers for materials or equipment which has not been
delivered and stored at the Site. If approved in writing and in advance by the
Owner and the Owner's lenders, if any, payment may similarly be made for
materials and equipment suitably stored off the Site at a location agreed upon
by the Owner in writing. Payment for materials and equipment stored on or off
the Site shall be conditioned upon compliance by the Construction Manager with
procedures satisfactory to the Owner to establish the Owner's title to such
materials and equipment or otherwise to protect the Owner's interest and the
Project from assertion of liens or encumbrances, and on the Construction
Manager's compliance with the applicable requirements of any disbursement
agreement for the Project. In addition, such payments shall not be made unless
the Owner or the Construction Manager obtains insurance covering damage or loss
to such materials and equipment and their safe delivery to the Site and
incorporation into the Work. The cost of this insurance (if not procured
directly by the Owner) shall be reimbursed by the Owner to the Construction
Manager. Damage to any material or equipment stored on or off the Site for which
the Owner has already made payment to the Construction Manager shall not entitle
the Construction Manager to any increase in the Guaranteed Maximum Price (or any
Separate GMP, as applicable) except that, if and to the extent that such
material and equipment was insured by Owner and such damage is reimbursed by
Owner's insurer, Construction Manager and Owner shall execute a Change Order
whereby Owner will pay to Construction Manager the lowest of: (i) the amount of
insurance proceeds recovered by Owner from its insurer for the damaged material
or equipment; (ii) the amount allocated to the damaged material or equipment by
the Schedule of Values; or (iii) the amount required to repair or replace the
damaged material or equipment; and Construction Manager shall repair or replace
the damaged material or equipment in accordance with the Contract Documents.
12.8 In taking action on the Construction Manager's Applications for Payment,
the Architect and the Owner shall be entitled to rely on the accuracy and
completeness of the information furnished by the Construction Manager and shall
not be deemed to represent that the Architect or Owner has made a detailed
examination, audit or arithmetic verification of the documentation submitted in
accordance with Section 12.4 or other supporting data; that the Architect or
Owner has made exhaustive or continuous onsite inspections or that the Architect
or Owner has made examinations to ascertain how or for what purposes the
Construction Manager has used amounts previously paid on account of the
Contract.
12.9 Each Application for Payment shall be accompanied by a lien and claim
waiver, executed by each Subcontractor, covering all labor and materials that
have actually been paid for by the Owner pursuant to any previous application
and for which the Construction Manager should have paid the Subcontractor
pursuant to the requirements of this Contract prior to the submission of the
Payment Application at issue. Each Application for Payment shall also be
accompanied by a partial lien waiver, executed by the Construction Manager,
effective upon receipt of payment. In addition, each Application for Payment
shall be notarized, if required, and supported by such data substantiating the
Construction Manager's right to payment as the Owner may reasonably require,
such as any affidavit or other statement reasonably required by any lender to
the Owner, schedules of values from Subcontractors, and copies of requisitions
and/or invoices from Subcontractors (reflecting retainage as provided for in the
Contract Documents). The Construction Manager's Applications for Payment may not
include requests for payment of amounts the Construction Manager does not intend
to pay to a Subcontractor because of a dispute or other reason.
12.10 Payments due and unpaid under the Contract shall bear interest beginning
fifteen (15) days from the date payment is due at two and one-half points above
the prime rate listed in the Wall Street Journal in effect during the period
when the sums are due OR the maximum amount permitted by law whichever is less.
12.11 Retention. The Owner shall retain ten percent (10%) of the amount
requested for each work category identified in the schedule of values, excluding
Fixed General Conditions but including the Construction Manager's Fee, which
retention shall not be released or reduced, except and only as permitted by
Sections 12.5.3.9 and 12.11.1 below.
12.11.1 The retention held by the Owner with respect to any Work category shall
be retained until Substantial Completion of all the Work and for such longer
period as may be required by Section 13.6,
23
except that with the prior and written approval of the Owner, which shall not be
unreasonably withheld, Construction Manager may request release of retention
with respect to any particular trade category comprising the Work upon Final
Completion of such category of Work and confirmation by the Construction Manager
that any and all defects, deficiencies or other problems thereafter arising with
respect to such category of Work will be rectified by the Construction Manager
without increase in the GMP (or Separate GMP, as applicable). In addition, the
Owner and Construction Manager may hereafter agree to release retention relating
to certain discrete portions of the Work separately from the retention being
held with respect to other portions of the Work. If the Owner and Construction
Manager hereafter so agree, then they shall identify in writing each discrete
portion of the Work with respect to which retention will be separately released,
xxxx the list as Exhibit E and sign it by both parties, at which time it shall
be incorporated into and become a part of this Agreement.
12.12 Changes to Agreement Required by Lender. Construction Manager acknowledges
that the Owner has not yet entered into a final agreement with lenders to the
Project and that in connection with such agreement certain changes may be
requested by the lenders to this Contract, including but not limited to those
provisions relating to disbursement of payment to the Construction Manager and
related certifications and reports from the Construction Manager to the lenders.
The Construction Manager agrees that any reasonable modification to the Contract
requested by the Owner's lenders shall be made pursuant to a modification to
this Contract signed by both Parties.
ARTICLE 13
FINAL PAYMENT
13.1 Neither Final Payment nor any remaining retained percentage shall become
due until the Work is finally complete, as defined herein, and the Construction
Manager submits to the Owner (1) an affidavit that all payrolls, bills for
materials and equipment, and other indebtedness connected with the Work (except
for amounts withheld by Owner) for which the Project, the Owner or the Owner's
property might be responsible or encumbered have been or will be paid or
otherwise satisfied, (2) a certificate evidencing that insurance required by the
Contract Documents to remain in force after Final Payment is currently in effect
and will not be canceled or allowed to expire until at least 30 days' prior
written notice has been given to the Owner, (3) a written statement that the
Construction Manager knows of no substantial reason that any insurance procured
by the Construction Manager for the Project will not be renewable to cover the
period required by the Contract Documents, (4) consent of surety, if any, to
Final Payment, (5) delivery to the Owner of a final as-built record survey
certified to Owner, Owner's title insurer and Owner's lenders, prepared by a
surveyor of Owner's selection, performed and presented in accordance with the
Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys as adopted
by the American Land Title Association and American Congress of Surveying and
Mapping in 1999, including all Optional Survey Responsibilities and
Specification in Table A thereof establishing the proper placement of the Work
and that there are no encroachments of the Work onto land or easements of
others, (6) if required by Owner, other data establishing payment or
satisfaction of obligations, such as receipts, releases and waivers of liens,
claims, security interests or encumbrances arising out of this Contract, to the
extent and in such form as may be designated by the Owner, (7) an executed
waiver signed by the Construction Manager discharging and waiving all claims,
damages, causes of action, suits and/or liens which the Construction Manager may
have against the Owner or the Project and relating to the Work, the Contract
Documents or the Project effective upon receipt of Final Payment, (8) a final
accounting of the Cost of Work plus the Construction Manager's Fee in such form
as is acceptable to the Owner; and (9) executed lien and claim waivers
(effective upon receipt of Final Payment to the Construction Manager) signed by
all Subcontractors. If any such lien or claim on the Project remains unsatisfied
after Final Payment is made to the Construction Manager, the Construction
Manager shall be responsible to the Owner for all money, costs, and expenses
that the Owner may be compelled to pay in discharging such lien or claim,
including all costs and reasonable attorneys' fees. The Construction Manager
shall, within seven (7) business days after receipt of Final Payment from the
Owner, submit final and unconditional lien waivers from all Subcontractors who
have performed Work or supplied any labor, material, equipment or services to
the Project. The Owner shall make Final Payment to the Construction Manager
within thirty (30) days after the satisfaction of all requirements in this
Section and the receipt from the Architect of a Certificate of Final Completion.
In the event the Construction
24
Manager makes an Application for Final Payment but does not provide the waiver
required by sub-section (7) above, the Owner agrees to make payment of any
uncontested amounts set forth in such Application, within the time required for
other progress payments as set forth herein, notwithstanding the time for Final
Payment as required by this Section.
13.2 The Owner shall, within twenty-one days after receipt from the Construction
Manager of its final accounting, review and report in writing on the
Construction Manager's final accounting. Based upon such Cost of the Work as the
Owner reports to be substantiated by the Construction Manager's final
accounting, and provided the other conditions of Section 13.1 above have been
met, the Architect will, within seven (7) days after receipt of the written
report of the Owner, either issue to the Owner a final Certificate for Payment
with a copy to the Construction Manager, or notify the Construction Manager and
the Owner in writing of the Architect's reasons for withholding a certificate as
provided in Article 28 of the General Conditions. If the aggregate of previous
payments made by the Owner exceeds the amount due the Construction Manager, the
Construction Manager shall promptly reimburse the difference to the Owner.
13.3 If the Owner's review of the Cost of the Work as substantiated by the
Construction Manager's final accounting is less than claimed by the Construction
Manager, the Construction Manager shall be entitled to pursue a claim of the
disputed amount without a further decision of the Architect. Such notice of
claim shall be made by the Construction Manager within thirty (30) days after
the Construction Manager's receipt of a copy of the Architect's final
Certificate for Payment. Failure to make notice of claim within this thirty (30)
day period shall result in the substantiated amount reported by the Owner's
accountants becoming binding on the Construction Manager. Pending a final
resolution, the Owner shall pay the Construction Manager the amount certified in
the Architect's final Certificate for Payment.
13.4 Notwithstanding anything herein or in the other Contract Documents to the
contrary, no final payment shall be made by the Owner to the Construction
Manager until the requirements of Section 13.6 of this Agreement have been
fulfilled and at least thirty (30) days shall have elapsed from the Date of
Final Completion and the Construction Manager has delivered to Owner all
releases and waivers in form and substance satisfactory to Owner, of any and all
liens, including but not limited to mechanic's and materialmen's liens, against
the Project or Owner from the Construction Manager, the Subcontractors and the
Sub-subcontractor who have performed Work in connection with the Project or, if
Construction Manager is unable or unwilling to obtain such waivers, a bond in
form and, substance satisfactory to the Owner together with the Construction
Manager's indemnifications of the Owner and the lenders against any and all
claims made on account of such liens, and the conditions, provisions and
requirements of Section 13.1 of this Agreement, and the conditions of Article 28
of the General Conditions have been satisfied. The Construction Manager shall
also provide the Owner with a written consent of the surety to final payment.
13.5 No inspection by the Owner or the Architect nor any Certificate for Payment
by the Architect or any approval given by the Owner or any lender or payment by
the Owner to the Construction Manager under this Agreement, nor partial or
entire acceptance or use of occupancy of the Work by the Owner or any part
thereof by the Owner or any other person shall constitute acceptance by the
Owner of Work not in conformance with the Contract Documents or a waiver by the
Owner of any claims against the Construction Manager for any defects or
deficiencies in the Work.
13.6 Notwithstanding anything in this Agreement to the contrary, and as required
by Section 13-803 of the Tax-General Article of the Maryland Code, if the
Construction Manager is a "Nonresident contractor" as that term is defined in
Section 13-803(a)(2) and this Project meets the other requirements of Section
13-803, then, in such event, and without regard to whether all other conditions
of Substantial Completion and Final Completion have been met under this
Agreement, the Owner shall withhold 3% of the Contract Sum until thirty (30)
days after the requirements of Section 13-803(b) have been met. This Section
shall supplement, but not limit, any other provisions of this Agreement
authorizing the withholding of payment from the Construction Manager.
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ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 Where reference is made in this Agreement to a provision of the General
Conditions or another Contract Document, the reference refers to that provision
as amended or supplemented by other provisions of the Contract Documents.
14.2 Every Monday the Construction Manager shall submit to the Owner copies of
its Daily Reports from the previous week. The Daily Report should include the
manpower count for all personnel on the site.
14.3 The Construction Manager's other indemnity obligations are contained in the
" General Conditions for the Xxxxxxx National Resort and Convention Center
Project" attached hereto.
14.4 The Owner acknowledges that the Construction Manager is not providing
professional services pursuant to this Contract which constitute the practice of
architecture or engineering and the Owner agrees that the Construction Manager
shall not be responsible for errors, defects or omissions in the design of the
Work or the Architect's services. However, Construction Manager agrees to notify
Owner of any inconsistencies, conflicts or ambiguities within or among the
Contract Documents or the information and communications provided to the
Construction Manager by the Architect and agrees that it shall secure
instructions from the Owner and Architect prior to proceeding with any Work
affected by or involving any such inconsistency, conflict or ambiguity. The
Construction Manager shall be responsible to the Owner for any delay to the
completion of the Work and for all costs, damages or losses suffered by the
Owner as a result of, any Work performed by the Construction Manager if and to
the extent that the Construction Manager has, or should reasonably have,
knowledge, prior to performing that Work, that the Contract Documents relating
to such Work contain or involve an inconsistency, conflict or ambiguity.
14.5 Construction Manager shall be responsible to comply with all Laws (as
defined in the General Conditions) and to pay all taxes applicable to the Work.
14.6 Perini Building Company and Xxxxxx Construction Company shall be jointly
and severally liable for all obligations of the Construction Manager under the
Contract. Owner may proceed against either of them separately without joining
the other, or against both of them, in its sole discretion. The obligations of
Perini Building Company and Xxxxxx Construction Company under the Contract are
non-transferable and non-assignable without the permission of the Owner.
14.7 All notices shall be given in writing. All checks from Owner to
Construction Manager shall be made payable to "Perini/Xxxxxxxx Joint Venture."
All notices and payments shall be sent by FEDEX or United States Postal Service
addressed:
in the case of Owner, to: Xxxxxxx Entertainment Company
Xxx Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Vice President
Design and Construction
and, in the case of
Construction Manager, to:
Perini/Xxxxxxxx Joint Venture
C/o Perini Building Company
00 Xx. Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Notices shall be effective upon receipt. A signed FEDEX or United States Postal
Service certified mail receipt shall be presumptive evidence of receipt.
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ARTICLE 15
ENUMERATION OF CONTRACT DOCUMENTS
15.1 The Contract Documents, except for modifications issued after execution of
this Agreement, are enumerated as follows:
15.1.1 The Agreement is this "Agreement Between the Owner and the Construction
Manager".
15.1.2 The General Conditions are the " General Conditions for the Xxxxxxx
National Resort Project" attached hereto.
15.1.3 The Specifications are those identified in the applicable Separate GMP
Amendment and/or GMP Amendment executed by the Owner and Construction Manager.
15.1.4 The Drawings are those identified in the applicable Separate GMP
Amendment and/or GMP Amendment executed by the Owner and Construction Manager.
15.1.5 The Addenda, if any, are those identified in the applicable Separate GMP
Amendment and/or GMP Amendment executed by the Owner and Construction Manager.
15.1.6 Other Documents, if any, forming part of the Contract Documents are as
follows:
Exhibit A GMP amendment form
Exhibit B Separate GMP amendment for preconstruction services
Exhibit C MBE/LBE agreement
Exhibit D Permit, license and inspection responsibilities
Exhibit E Early release of retention
Exhibit F Prevailing wage requirements
Exhibit G Intentionally Deleted
Exhibit H Milestone dates
Exhibit I Owner's trailer requirements
Exhibit J General conditions responsibility matrix
Exhibit K Convention center description
Exhibit L General Conditions for the Xxxxxxx National Resort Project
ARTICLE 16
OWNER
16.1 With respect to the administration of this Contract, the Owner hereby
designates Xxx Xxxxxxxxx as its representative authorized to act on the Owner's
behalf with respect to the Project ("the Owner's Representative"). The Owner's
Representative has express authority to sign Change Orders and make
determinations regarding increases in the GMP and/or extensions to the
Completion Dates and Milestone Dates. Unless otherwise agreed in writing between
the parties or otherwise provided in this Contract, the Owner's Representative
shall be responsible for communicating with the Construction Manager regarding
the Work, and the Construction Manager shall not accept requests for work or
services or other directions in connection with the performance of Work on the
Project unless such request or direction is issued by the Owner's
Representative. New or additional Owner's Representatives may be designated by
the Owner by providing the Construction Manager with three days prior written
notice signed by Xxx Xxxxxxxxx.
16.2 The Owner agrees that it shall render necessary decisions pertaining to the
Work on the Project, including review and approval of submittals from the
Construction Manager, with reasonable promptness. As used herein and in the
other Contract Documents, "reasonable promptness" shall mean the provision of
information as quickly and expeditiously as practicable, taking into account all
relevant factors associated
27
with the decision that is required, including the time when the decision is
requested, the nature of the decision and any related needs for coordination and
other communication, in order to avoid unreasonable delay in the orderly and
sequential progress of the Work. Construction Manager agrees that in preparing
it schedules for performance of the Work, it shall include reasonable times for
the Owner's review, approval and issuance of directions and decisions. All such
time frames shall be coordinated with and approved by the Owner prior to the
issuance of any schedule. Failure of the Owner to issue a decision or approval
within the times contemplated by any schedule approved by the Owner shall
constitute an Excused Delay provided and only if the conditions of Section 4.4
above are satisfied.
OWNER CONSTRUCTION MANAGER
XXXXXXX NATIONAL, LLC
BY XXXXXXX HOTELS, LLC PERINI BUILDING COMPANY
ITS: SOLE MEMBER
/s/ Xxxxx X. Xxxxxxxx /s/ Xxx Xxxxx
------------------------------------- ----------------------------------------
(Signature) (Signature)
Xxxxx X. Xxxxxxxx Xxx Xxxxx, Xx. VP
(Printed Name and Title) (Printed Name and Title)
May 30, 2005 May 9, 2005
(Date) (Date)
XXXXXX CONSTRUCTION COMPANY
/s/ Xxxxxx Xxxxx
----------------------------------------
(Signature)
Xxxxxx Xxxxx, President,
Xxxxxxxx Builders
(Printed Name and Title)
May 11, 2005
(Date)
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EXHIBIT A TO
AGREEMENT BETWEEN THE OWNER AND CONSTRUCTION MANAGER
FORM OF GMP AMENDMENT
This GMP Amendment is executed this ____ day of _________, ____, by
________________________ ("Owner") and _____________________ ("Construction
Manager") pursuant to the Agreement dated ___________, 2004 ("Agreement")
executed by the parties for the performance by the Construction Manager of
certain construction work and construction management services for the Xxxxxxx
National Harbor Resort and Convention Center Project as identified therein.
1. Pursuant to the Agreement, Construction Manager hereby agrees that the
Guaranteed Maximum Price ("GMP") for the Work to be performed on the Project
(including all Work under this GMP Amendment and all preconstruction services
performed under that Separate GMP Amendment dated ________) shall be
$__________________, and that the GMP is divided as follows: (a) the Cost of the
Work equals $____________; and (b) the Construction Manager's Fee is
$_________________.
2. The GMP Design Documents and any subsequent revisions thereto upon which
this GMP Amendment is based, are identified in Exhibit 1 attached hereto.
3. The Completion Date(s) for the Project, pursuant to Paragraph 4.2 of the
Agreement, shall be as set forth therein and in Exhibit 2 attached hereto.
4. The Owners and Construction Manager agree that the Work required by this
GMP Amendment has been commenced or shall commence on _____________.
5. The Owner and Construction Manager agree that the Schedule of Values,
Construction Progress Schedule, Unit Prices, Allowances and wages, salaries and
bonuses attached as Exhibit 3 shall govern the Work.
OWNER
XXXXXXX NATIONAL, LLC CONSTRUCTION MANAGER
BY: XXXXXXX HOTELS, LLC, SOLE MEMBER
By: By:
--------------------------------- ------------------------------------
Title: Title:
------------------------------ ---------------------------------
EXHIBIT B TO
AGREEMENT BETWEEN THE OWNER AND CONSTRUCTION MANAGER
FORM OF SEPARATE GMP AMENDMENT
This Separate GMP Amendment is executed this ___ day of April, 2005, by Xxxxxxx
National, LLC ("Owner") and Perini/Xxxxxxxx XX ("Construction Manager") pursuant
to the Agreement of even date herewith ("Agreement") executed by the parties for
the performance by the Construction Manager of certain construction work and
construction management services for the Xxxxxxx National Harbor Resort and
Convention Center Project as identified therein.
1. Pursuant to the Agreement, Construction Manager hereby aggress that the
Separate Guaranteed Maximum Price ("Separate GMP") for the following Early Work
to be performed on the Project shall be $350,000.00. The Early Work covered by
this Separate GMP Amendment generally consists of the following: Preconstruction
Phase Services described in Paragraphs 5.2.5 through 5.2.6.4 of this Agreement
to reach a GMP by September 1 2005.
2. The GMP Design Documents for the Early Work and any subsequent revisions
thereto upon which this Separate GMP Amendment is based, are identified as the
Design Development Set. For pricing purposes use the finish schedule issued at
Schematic Design.
3. The Owner and Construction Manager agree that the Work required by this
Separate GMP Amendment has commenced and shall continue until complete in
accordance with a schedule established by the Owner.
OWNER CONSTRUCTION MANAGER
XXXXXXX NATIONAL, LLC PERINI BUILDING COMPANY
BY: XXXXXXX HOTELS, LLC
ITS: SOLE MEMBER
By: By:
--------------------------------- ------------------------------------
Title: Title:
------------------------------ ---------------------------------
XXXXXX CONSTRUCTION COMPANY
By:
------------------------------------
Title:
---------------------------------
EXHIBIT L TO
AGREEMENT BETWEEN THE OWNER AND CONSTRUCTION MANAGER
GENERAL CONDITIONS
FOR THE XXXXXXX NATIONAL RESORT PROJECT
GENERAL CONDITIONS
1. SCOPE
This section of the Contract defines the General Conditions governing the
performance of the Agreement between Owner and the Construction Manager
(individually, a "Party" and collectively, the "Parties").
2. DEFINITIONS
A. ADDENDA: Any written or graphic instrument listed in the GMP Amendment
(or Separate GMP Amendment, as applicable) executed by the Parties which
clarifies, corrects or changes any part of the bidding documents or the Contract
Documents.
B. AGREEMENT: The Agreement Between the Owner and the Construction Manager
executed by the Parties for the Xxxxxxx National Resort and Convention Center.
C. AS-BUILT DRAWINGS: Detailed drawings that accurately and clearly
indicate in detail the actual Work performed on the Project.
D. CHANGE DIRECTIVE: A written order (in the form attached hereto as
Exhibit 10), as more specifically described in Paragraph 17, issued after the
effective date of the Contract by Owner directing an addition, deletion or
revision in the Work prior to agreement between Owner and Construction Manager
on an adjustment, if any, in the Contract Sum or time of performance of the
Work, or both.
E. CHANGE OF CONTRACT: A written order (in the form attached hereto as
Exhibit 11), as more specifically described in Paragraph 17, issued after the
effective date of the Contract, and executed by Owner and Construction Manager,
which authorizes an addition, deletion or revision in the Work and which may
include an adjustment in the Contract Sum or the time of performance of the
Work. A Change of Contract is sometimes referred to in the Contract Documents as
a Change Order.
F. CONSTRUCTION MANAGER: The entity that executed the Agreement and is
identified as the Construction Manager therein. The term Construction Manager
also means the Construction Manager's representative.
G. CONSTRUCTION PROGRESS SCHEDULE: The Construction Progress Schedule or
Schedule is as defined in Paragraph 14 hereto.
H. CONTRACT: Those certain documents identified in the Agreement and in the
GMP Amendment (or Separate GMP Amendment, as applicable) executed by the
Parties, and all of their schedules, exhibits and subsequent amendments, which
defines the scope of the Construction Manager's Work and establish the
Guaranteed Maximum Price and/or Separate GMP, as applicable). The terms Contract
and Contract Documents may be used interchangeably.
I. CONTRACT DOCUMENTS: The Contract Documents are as defined in the
Agreement between the Owner and the Construction Manager and in the GMP
Amendment and/or Separate GMP Amendments executed by the Parties, as applicable.
The Contract Documents shall include the following documents issued after
execution of the Agreement: Changes of Contract, Change Directives and contract
modifications that are executed by both of the Parties hereunder.
J. CONTRACT SUM: shall have the meaning set forth in Article 5 of the
Agreement.
K. DAY: Unless otherwise specified, the words "day" or "days" shall mean
calendar day or calendar days.
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L. DRAWINGS: The documents which show the character, nature and scope of
the Work to be performed and which are referred to in the Agreement and in the
GMP Amendment and/or Separate GMP Amendments executed by the Parties, as
applicable, and are listed therein as Contract Documents. Drawings may also be
referred to as "Plans".
M. EXCUSED DELAY: shall have the meaning set forth in Article 4 of the
Agreement.
N. FINAL PAYMENT: shall have the meaning set forth in Paragraph 29 hereof.
O. FINAL PUNCHLIST: shall have the meaning set forth in Paragraph 9D
hereof.
P. HAZARDOUS MATERIALS: Any substance or material containing one or more of
any of the following: "hazardous material," "hazardous waste," "hazardous
substance," regulated substance," "petroleum," "pollutant," "contaminant,"
"polychlorinated biphenyls," "lead or lead-based paint" or "asbestos" as such
terms are defined in any applicable federal, state and local laws, rules and
regulations (now or hereafter in effect) dealing with the use, generation,
treatment, storage, disposal or abatement of hazardous materials.
Q. LAW(S): All federal, state, local or quasi-governmental laws, statutes,
ordinances, codes, orders, rules, restrictive covenants, regulations and other
requirements applicable to performance of the Work or its construction or
operation; including, without limitation: building codes; environmental laws;
social security and unemployment compensation laws; workers' compensation laws;
safety laws; archaeological and paleontological preservation laws; requirements
of local utility companies and of local and national fire protection
associations; zoning and setback or other locational requirements of applicable
Laws; the Americans with Disabilities Act; and federal, state and local
employment laws. Laws shall also include any covenants, conditions or
restrictions applicable to or affecting the Project or the Site. The provisions
of paragraph 14.5 in the Agreement shall apply to the Construction Manager's
obligation to comply with Laws.
R. MODIFICATION: (1) a written amendment to the Contract signed by both
Owner and the Construction Manager which clarifies, revises or changes the
Contract Documents; or (2) a Change of Contract or Change Directive.
S. NOTICE TO PROCEED: Notice given by Owner to the Construction Manager in
the GMP Amendment and/or any Separate GMP Amendment executed by the Parties
fixing the Date of Commencement on which Construction Manager shall start to
perform Construction Manager's obligations under the Contract Documents.
T. OWNER: The entity that owns the property and/or the improvements on the
property on which the Work is to be performed, and may be identified as "Owner"
on the cover page of the Agreement.
U. PRODUCT DATA: Illustrations, standard schedules, performance charts,
instructions, brochures, diagrams or other information furnished by the
Construction Manager to illustrate a material, product or system for some
portion of the Work.
V. PROJECT: The Xxxxxxx National Resort and Convention Center as identified
in the Agreement. The Work performed under the Contract Documents may be the
whole or a part of the total Project.
W. SAMPLES: Physical examples furnished by the Construction Manager, which
illustrate materials, equipment or workmanship and, if approved by Owner as
being in conformance with the Contract Documents, establish the standard by
which the Work will be judged.
X. SHOP DRAWINGS: Drawings, diagrams, layouts, schematics, descriptive
literature, illustrations, schedules, performance and test data, and similar
materials furnished by the Construction Manager to explain in detail specific
portions of the Work required by the Contract Documents.
Y. SITE: The physical area where the Work is to be done.
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Z. SPECIAL PROVISIONS: That part of the Contract Documents which amends or
supplements these General Conditions and other requirements of the Contract
Documents.
AA. SPECIFICATIONS: Those portions of the Contract Documents consisting of
written technical descriptions, provisions or requirements pertaining to the
materials and workmanship applicable to the Work to be performed under the
Contract Documents, including, but not limited to, the quantities or quality of
materials, equipment, construction systems or applications required in
connection with the Work, as identified in the GMP Amendment and/or Separate GMP
Amendments executed by the Parties.
AB. SUBCONTRACTOR: Any person or organization having a direct contract with
the Construction Manager (or any wholly-owned or affiliated entity thereof) to
perform a portion of the Work or provide materials for the Work. References in
the Contract Documents to Subcontractor shall also mean and include
Sub-Subcontractors and Suppliers as defined herein.
AC. SUBMITTALS: Collectively, Product Data, Samples and Shop Drawings.
AD. SUBSTANTIAL COMPLETION: shall have the meaning set forth in Article 4
of the Agreement.
AE. SUB-SUBCONTRACTOR: Any person other than Construction Manager or a
Subcontractor (or any wholly-owned or affiliated entity thereof) who supplies
labor or materials in connection with the Construction Manager's Work regardless
of how remote that person's contract is from Construction Manager.
Sub-subcontractors are sometimes referred to in these General Conditions as
Subcontractors or Subcontractors of any tier. It is the intent of the parties
that this Agreement shall be liberally construed to include within the term
Subcontractor all Sub-subcontractors of any tier whenever such inclusion is
beneficial to the Owner.
AF. SUPPLIER: Any party supplying, by sale or lease, directly or
indirectly, any materials or construction equipment for the Construction
Manager's Work and includes distributors, material men, vendors and
manufacturers at any tier.
AG. UNIT PRICE: The standard, uniform price that the Construction Manager
has provided for a specific item or type of Work that may be required for the
Project.
AH. WORK: shall have the meaning set forth in Article 2 of the Agreement.
All terms and phrases defined elsewhere in the Contract Documents are
used in conformance with such definitions. In addition, terms and phrases which
have well known technical or construction industry meanings are used in the
Contract Documents in accordance with such recognized meanings unless otherwise
defined elsewhere in the Contract Documents or unless the context clearly
indicates a different meaning.
3. EXECUTION, CORRELATION AND INTENT OF DOCUMENTS
A. Originals. The Agreement shall be signed and dated in duplicate by Owner
and the Construction Manager, each of which shall be a duplicate original. The
Construction Manager is independently responsible for obtaining, reviewing and
coordinating the provisions of all of the Contract Documents, whether or not
such documents have been delivered to the Construction Manager in connection
with the request for bid, have been individually signed by the Construction
Manager and Owner or have been physically attached to the Contract. The failure
to review or obtain any such document shall not relieve or excuse the
Construction Manager from compliance with its terms or the terms of any other
Contract Document. By execution of the Agreement, Construction Manager
represents that it has read and understands all of the Contract Documents and
that it can and will comply with all of the provisions therein. The Construction
Manager's proposals and bid submittals in connection with the Work are not part
of the Contract and shall not be the basis for any claim by Construction
Manager. The provisions of the Contract Documents supersede the Construction
Manager's bid and all prior negotiations, representations or agreements, either
written or oral.
B. Complementary. Throughout the Contract Documents, various requirements
have been specified for performance by the Construction Manager. Each such
Contract item is mandatory and shall be performed by the
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Construction Manager. Contract Documents are complementary and shall be used as
a whole and not separately. If any item of the Work is shown on any of the
Contract Documents, it shall be executed and is binding as if shown and
contained on all Contract Documents.
C. Order of Precedence. If any portion of the Contract Documents conflict
with any other portions, the following order of precedence shall control:
(1) Modifications to the Contract;
(2) Agreement between the Owner and Construction Manager (including
Exhibits and Schedules thereto);
(3) Addenda to the Contract;
(4) Special or Supplementary Conditions, if any;
(5) General Conditions (including Exhibits and Schedules thereto);
(6) Modifications to the Specifications;
(7) Addenda to the Specifications;
(8) Specifications;
(9) Modifications to the Drawings;
(10) Addenda to the Drawings;
(11) Drawings, in the following order of precedence, with Structural
Drawings taking precedence over all other Drawings;
(a) Notes on Drawings;
(b) Large-scale Drawings;
(c) Large-scale details;
(d) Small-scale Drawings;
(e) Small-scale details;
(f) Figured dimensions;
(g) Scaled dimensions; and
(h) All other documents, terms and conditions of the Contract.
D. Integration Clause. The Contract Documents constitute the entire
agreement between the Parties. No verbal agreement or conversation with any
officer, agent or employee of Owner or Construction Manager, after the execution
of the Contract, shall affect or modify any of the terms or obligations in the
Contract Documents. The Contract Documents may only be changed in writing as
specified herein.
E. Referenced Specifications and Standards. Where standard specifications
issued by a recognized industry association or regulatory body is referenced,
the reference shall be interpreted as incorporating the standard specifications
in total unless otherwise noted in the Contract Documents.
F. Intent of Contract Documents. Where the Contract Documents describe
portions of the Work in general terms, but not in complete detail, the practices
of construction applicable to similar work performed by an experienced and
competent Construction Manager shall be followed and only new materials and
workmanship of appropriate quality consistent with such practices shall be used
unless otherwise directed. Omissions from the Contract Documents or the
inadequate description of details of the Work which are manifestly necessary to
carry out the intent of the Contract Documents, or which are customarily
performed, shall not release the Construction Manager from performing such
necessary or customary details of the Work (as part of the Cost of the Work but
subject to the GMP and/or Separate GMP, as applicable). In general, the Drawings
shall be considered as establishing location, quantity and relationship of
materials, and the Specifications shall be considered as defining type and
quality of materials and workmanship requirements. The requirements for the
greater quantity and the higher quality to be interpreted from those documents
shall govern. All questions regarding the Drawings and Specifications and the
interpretation thereof and the resolving of conflicts or inconsistencies
contained therein shall be initially determined by the Architect, upon written
request from Construction Manager, without waiving Construction Manager's right
to dispute such interpretation and to seek an increase in the Contract time or
the Contract Sum by judicial action, provided however, that Construction Manager
shall perform in accordance with Architect's interpretation.
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4. CONSTRUCTION MANAGER'S REPRESENTATIONS
A. Construction Manager Representations. By executing the Separate GMP
Amendments and GMP Amendment, as applicable, the Construction Manager represents
and warrants that it has had ample opportunity to, and by careful examination
has, satisfied itself as to the nature and location of the Work that is the
subject of such GMP Amendment and/or Separate GMP Amendment, the conditions of
the Site(s), the character, quality and quantity of the materials to be
encountered, the equipment and facilities needed preliminary to and during the
prosecution of such Work, the general and local conditions, including weather,
and all other matters which can in any way affect such Work under the Contract
Documents, and has, as necessary, consulted with the Owner, the Architect and
Owner's other consultants to obtain any and all clarifications necessary to
establish the Guaranteed Maximum Price or Separate GMP, as applicable and the
time for performance of such Work.
B. Review of Contract Documents. Upon its execution of each Separate GMP
Amendment and the GMP Amendment, as applicable, Construction Manager will be
deemed to have warranted that it has reviewed the Contract Documents identified
therein and to have acknowledged and declared they are adequate and sufficient
to have enabled the Construction Manager to determine the GMP or Separate GMP,
as applicable, for the Work therein and that the Drawings, the Specifications
and all Modifications and Addenda are sufficient to enable the Construction
Manager to construct the Work outlined therein in accordance with its
obligations under the Contract Documents. The Construction Manager shall not
proceed with the Work if Construction Manager has actual knowledge of an, or if
there is any reasonably apparent, ambiguity, conflict or inconsistency within
the Contract Documents, but shall immediately submit a written request for an
explanation or decision to the Owner and the Architect. Should Construction
Manager proceed without a written response by the Owner and the Architect, or in
a manner that is contrary to such response, it shall do so at its own risk and
expense and shall forfeit any right to seek an adjustment of the Contract Sum or
extension of time with respect thereto.
C. Verification of Dimensions. The Construction Manager shall verify all
dimensions before laying out and performing any particular portion of the Work
and shall be responsible for any errors, which might have been avoided thereby.
Dimensions of Work as indicated on Drawings are not guaranteed to be as built
dimensions. No measurements shall be scaled from Drawings and used as definite
dimensions for layout or fitting Work in place. Whenever inaccuracies or
discrepancies are found, the Construction Manager shall inform the Owner and the
Architect and obtain clarification prior to any construction or demolition.
Should any dimensions be missing, Construction Manager shall consult with the
Owner and the Architect and shall obtain such dimensions prior to execution of
the Work. Dimensions for items to be fitted into constructed conditions at the
Site will be taken at the Site. Whenever a stock size, manufactured item or
piece of equipment is specified by its nominal size, it is the responsibility of
the Construction Manager to determine the actual space requirements for setting
or entrance to the setting space. No extension of the Completion Date(s) or
Milestone Dates or increase in the GMP or Separate GMP, as applicable, will be
allowed by reason of Work requiring adjustments in order to accommodate the
particular item of equipment.
D. Benchmarks, Lines and Monuments. Construction Manager shall establish
all lines, grades, benchmarks, monuments and other information required. All
grades shown on Drawings are believed to be correct but are not warranted as
such and the Construction Manager shall verify them at the Site and notify Owner
in writing of any discrepancies found before proceeding with the Work.
Construction Manager shall check the Drawings against such established lines and
grades and notify Owner in writing of any discrepancies found. The Construction
Manager shall protect and preserve the established benchmarks and monuments and
shall make no changes in their locations without the written approval of Owner.
Benchmarks and monuments lost or destroyed, or which require shifting because of
necessary changes in grades or locations shall, subject to prior approval by
Owner, be replaced and accurately relocated by an engineer or surveyor
registered in the area where the Work is to be performed (as part of the Cost of
the Work, subject to the GMP). Owner will furnish property markers and
Construction Manager shall review and confirm the accuracy of such property
markers. Any disputes concerning the proper location of the property markers
shall be resolved by a surveyor to be hired by Owner.
E. Differing Site Conditions. Construction Manager has had the opportunity
to reasonably investigate the Site and to review reports prepared by consultants
to Owner and, if it so desired, by its own consultants, before executing this
Agreement. Construction Manager accepts the risk of subsurface or otherwise
concealed physical conditions or unknown physical conditions that: (i) are
reasonably apparent upon above-ground visual observation; (ii)
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are not of an unusual nature or do not differ materially from those ordinarily
found to exist and generally recognized as inherent in construction activities
of the character provided for in the Contract Documents; or (iii) do not differ
materially from those indicated in the Contract Documents or any reports or
surveys provided to the Construction Manager prior to the execution of the
Separate GMP Amendment and/or GMP Amendment., as applicable. Construction
Manager shall notify the Owner promptly after the Construction Manager discovers
or encounters subsurface or otherwise concealed physical conditions or unknown
physical conditions that: (i) are not reasonably apparent upon above-ground
visual observation; and (ii) are of an unusual nature or differ materially from
those ordinarily found to exist and generally recognized as inherent in
construction activities of the character provided for in the Contract Documents;
and (iii) differ materially from those indicated in the Contract Documents or
any reports or surveys provided to the Construction Manager prior to the
execution of the Separate GMP Amendment and/or GMP Amendment., as applicable (
such conditions meeting all three of the foregoing tests being "Differing Site
Conditions"). Thereafter, Owner shall promptly investigate such alleged
Differing Site Conditions. Construction Manager shall perform no Work involving
or affected by Differing Site Conditions until after receiving directions from
the Owner as to the performance of such Work affected thereby. If Differing Site
Conditions exist and require Work not otherwise required by or reasonable
inferable from the Contract Documents, such additional Work shall be a Material
Change under Section 2.1.1 (4) of the Agreement. If the conditions encountered
do not qualify as Differing Site Conditions, or if the resulting Work is
otherwise required by or reasonably inferable from the Contract Documents, no
change shall be deemed to have occurred to the Contract, and no claim of
Construction Manager for Excused Delay or increase of the GMP or Separate GMP,
as applicable, shall exist.
F. Business and Financial Documentation. Construction Manager shall provide
Owner with Construction Manager's: (i) Construction Manager license (if required
by the jurisdiction in which the Project is located); (ii) business license; and
(iii) other business or professional documentation reasonably requested by
Owner. In the event that any of the foregoing documents expire during the term
of this Contract, Construction Manager shall provide Owner with evidence that
such documents have been renewed. Upon request by Owner, Construction Manager
shall also provide Owner with all financial documentation and information
reasonably requested by Owner, including, without limitation, AIA Document A305
(Construction Manager's Qualification Statement) and audited financial
statements. To the extent Construction Manager has provided the foregoing
documents and information to Owner prior to execution of the Agreement,
Construction Manager shall update such documentation and information as
reasonably requested by Owner.
5. CONSTRUCTION MANAGER'S DUTIES AND RESPONSIBILITIES
A. The Construction Manager shall supervise and direct its portion of the
Work using skill and attention consistent with that of an experienced and
competent Construction Manager familiar with Work of the same nature and quality
as required by the Contract Documents. The Construction Manager shall be solely
responsible for all construction means, methods, techniques, sequences and
procedures, and for coordination of all portions of the Work under its Contract
in accordance with Paragraph 24 hereof. If the Construction Manager believes
that any specific mean, method, technique, sequence or procedure required by the
Contract Documents is inappropriate or improper, Construction Manager shall
provide the Owner with prompt written notice of such fact and shall not proceed
with any Work affected thereby until after resolving such issue with the Owner
(through the execution of an appropriate Change Order if necessary).
B. The Construction Manager shall be responsible to Owner for the acts and
omissions of its employees, Subcontractors, and their Subcontractors and agents
and employees, and other persons performing any of the Work or supplying
materials or equipment under a contract with the Construction Manager, any
Subcontractor or any Sub Subcontractor.
C. The Construction Manager shall provide, pay for and maintain all labor,
materials, equipment, tools, machinery and services necessary for the proper
execution and completion of the Work. All materials and equipment furnished by
the Construction Manager shall be new, free from faults and defects, of good
quality, and conform to the requirements of the Contract Documents.
D. The Construction Manager shall not be relieved from its obligations to
perform Work in accordance with the Contract Documents either by the activities
or duties of Owner in the administration of this Contract, or by
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inspections, tests, acceptances or approvals required or performed by persons
other than the Construction Manager. Specifically, the Construction Manager
understands and agrees that the Owner, the Architect and the Owner's consultants
are under no obligation to inspect the Work or discover defects or deficiencies
in the Work, and that the failure of the Owner, the Architect or Owner's
consultants to discover defects, deficiencies or other problems in the Work
shall not in any way constitute a waiver or acceptance of any such defect,
deficiency or other problem or in any way affect or reduce the Construction
Manager's responsibilities or obligations pursuant to the Contract Documents.
E. The Construction Manager acknowledges that it has made representations
to the Owner in its proposal and subsequent negotiations that it has substantial
experience in the construction and construction management of improvements
substantially similar to the Project and that the Owner has reasonably relied on
such representations in entering into this Contract with the Construction
Manager. Notwithstanding any other provision of this Contract, in determining
what is reasonably inferable from the Contract Documents, and with respect to
the services required of the Construction Manager under the Contract Documents,
the Construction Manager's services shall be performed in (and measured
according to) a manner consistent with those standards of professional skill,
care and diligence applicable to a constructor of comparable experience and
knowledge (as represented above) in similar circumstances.
F. The Construction Manager shall, prior to commencement of the Work,
submit to Owner, for its approval, the name and experience resume of
Construction Manager's proposed project manager. The Construction Manager shall
also submit the names of key members of its firm who will be directly connected
with the Work and outline the duties and authority of each. The Construction
Manager shall at all times enforce strict discipline and good order among its
employees and shall not employ on the Work any unfit person, anyone not skilled
in the work assigned to him or her and anyone who is not satisfactory to Owner.
The Construction Manager and Owner shall meet and agree on the nature and amount
of on-site supervision to be provided by the Construction Manager for the
Project, including the need for and identity of any Project Manager, on-site
Project Superintendent, on-site safety designee and/or on-site Field Engineers.
Any Project Manager agreed upon by the Owner and Construction Manager pursuant
to this Paragraph shall represent the Construction Manager on the Site and shall
have authority to bind the Construction Manager with respect to all matters
pertaining to the performance of Work on the Project. The Construction Manager
shall not employ any person as Project Manager, Project Superintendent, safety
designee and/or Field Engineer unless the Owner agrees to the selection of such
person, and shall not replace or transfer any such person without the prior,
written approval of the Owner, except in the event that the person so designated
is no longer employed by the Construction Manager, in which event the new person
designated as the replacement Project Manager, Project Superintendent, safety
designee or Field Engineer shall be subject to the Owner's approval, which
approval shall not be unreasonably withheld.
G. The Construction Manager acknowledges that the Owner has retained
Xxxxxxx Architecture, Design and Planning, PC (referred to herein as the
"Architect"), and that the Owner may retain other persons or entities to act as
consultants to the Owner to assist the Owner, as and when authorized, in the
development, delineation, evaluation and observation of certain aspects of the
design and construction of the Project, including monitoring of the Construction
Manager's services (all such consultants are referred to herein as the "Owner's
Consultants"). The Construction Manager acknowledges that the Architect and the
Owner's Consultants are solely advisors to the Owner, and that they shall not
have authority to act generally as the Owner's agent or to act otherwise on
behalf of the Owner in connection with the Project, unless expressly so stated
in the Contract Documents or later so indicated to the Construction Manager by
the Owner in writing. Specifically, the Construction Manager understands and
agrees that the Owner's Consultants and Architect do not have authority to
change the scope of the Work or to increase the GMP or Separate GMP, as
applicable, and/or extend the Completion Date(s) or Milestone Dates, and that
such changes, increases and/or extensions may be issues only by the Owner, in
writing as set forth in this Contract.
H. All correspondence from Construction Manager to Owner shall be
identified by the name, Xxxxxxx National Resort and Convention Center.
6. PERMITS, LAWS AND REGULATIONS
A. Permits and Fees. The respective responsibilities of the Owner and
Construction Manager with respect to the procurement and payment for building
permits, inspections, plan checks, waste, sewer, gas, electrical, telephone,
cable TV and other utility hookup fees, and other inspection fees, required
permits, licenses, approvals,
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certificates and authorizations are set forth in Exhibit D to the Agreement.
Each Party will have responsibility for the tasks and payments assigned to them
in such Exhibit. In addition, each Party agrees to cooperate reasonably with the
other in connection with the procurement of such permits and approvals.
Construction Manager shall provide Owner with a report on the current status of
all permits and approvals, and shall provide copies of all such permits and
approvals to Owner upon their receipt. All costs and expenses incurred by the
Construction Manager with respect to its permit and fee obligations under this
paragraph shall be paid as part of the Cost of the Work subject to the GMP
and/or Separate GMP, as applicable.
B. Compliance. The Construction Manager shall comply with all Laws that
apply to, and are in effect during, the performance of the Work. In addition,
Construction Manager shall become familiar, and shall comply, with those Factory
Mutual Standards relating to the physical construction, testing or quality of
the Work. The Construction Manager shall be responsible for any and all damages
incurred by Owner resulting from the Construction Manager's failure to comply
with, and shall indemnify, hold harmless and defend Owner and all other
indemnified parties named in Paragraph 22 of these General Conditions from any
loss, cost, damage or expense, including legal costs, arising from, occasioned
by or in any manner connected with violations of any requirements pertaining to
the design of the structured parking and construction of all of the Work set
forth in said Laws and Factory Mutual Standards. Construction Manager shall
immediately advise Owner of any changes of which it is aware in any applicable
Laws that affect the Work and the consequences of such changes. If a change of
Law or Factory Mutual Standard is adopted after a GMP Amendment or Separate GMP
Amendment and requires Work not otherwise required by or reasonable inferable
from the Contract Documents, such additional Work shall be a Material Change
under Section 2.1.1 (4) of the Agreement.
C. Nondiscrimination. During the performance of this Contract, the
Construction Manager specifically further agrees that it shall not discriminate
against any employee or applicant for employment because of race, color, age,
religion, sex, sexual orientation, national origin, disability or veteran
status. Furthermore, Construction Manager shall fully comply with all Laws
relating to nondiscrimination, non-segregation of facilities, equal employment
opportunity, affirmative action, veterans' employment and disabled employment,
and shall require said compliance by all Subcontractors of every tier. Without
limiting the foregoing, Construction Manager and all Subcontractors of every
tier shall observe the MBE/LBE Agreement and Prevailing Wage Schedule attached
to the Agreement and conform and report their practices in compliance therewith.
7. SUBSTITUTIONS
A. Specified Materials and Equipment. Materials and equipment specified by
name or names of one or more manufacturers shall be used to establish the
Contract Sum.
B. Substitution. The Construction Manager may offer a substitution of a
specified or indicated item if it presents to Owner in writing complete
information concerning the substitution and the benefits thereof to Owner by
reason of lower cost or improved performance, or both, over the specified or
indicated item. However, such submission of a proposed substitution does not
relieve the Construction Manager from its obligations under the Contract. In
proposing a substitution, the Construction Manager warrants that the
substitution is, at a minimum, equivalent in performance to the specified or
indicated item. A substitution shall not be effective unless accepted in writing
by Owner. Unless expressly authorized in writing by Owner, the Architect and
Owner's Consultants do not have the authority to approve proposed substitutions.
C. Cost and Time. Any costs and time changes and changes to the Work
(including, but not limited to the work of other Subcontractors and additional
design costs which may be affected thereby) which may result from the proposed
substitution shall be disclosed at the time the substitution is proposed to
Owner.
D. Application. Owner will not accept requests for review of substitute
items of materials and equipment from anyone other than the Construction
Manager.
E. Representations. By submitting an application pursuant to Paragraph 7B,
the Construction Manager:
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(1) Represents that it has personally investigated the proposed substitute
product and determined that it is equal or superior in all respects to that
specified;
(2) Represents that it will provide the same warranty for the substitution
as the original product specified;
(3) Certifies that the cost and schedule data presented is complete and
includes all related costs and schedule adjustments under the Contract
Documents, and waives all claims for additional costs and schedule adjustments
related to the substitution which subsequently become apparent; and
(4) Agrees to coordinate the installation of the accepted substitute,
making such changes as may be required for the Work to be complete in all
respects.
F. Shop Drawings Not A Substitution. Shop Drawings will not be considered a
substitution proposal pursuant to this Paragraph 7. Verbal approvals or approved
Shop Drawings will not be considered as acceptance of proposed substitutions.
G. Unapproved Substitutions. Owner reserves the right to reject any
unapproved substitution without explanation or formality, and to require the
replacement of an unapproved substitution with the specified and/or indicated
items at no expense to Owner, and to require compensation to Owner for loss of
use time during replacement.
8. SUBMITTALS
A. Submittals. Upon execution of the GMP Amendment or Separate GMP
Amendment, as applicable, the Construction Manager shall immediately begin
developing all Submittals required by the Contract Documents. Each item
submitted shall be thoroughly reviewed by the Construction Manager and shall
include a stamp or note describing the Construction Manager's action signed by
the person authorized by the Construction Manager to conduct the review with
that person's name clearly printed.
B. Construction Manager Review. Construction Manager shall review each
submittal for completeness, conformance to the Contract Documents and
coordination with other parts of the Work and the Construction Progress
Schedule. By providing and submitting to Owner or, if otherwise specified in the
Contract Documents, to Owner's designee, Shop Drawings, Product Data, warranties
and Samples, the Construction Manager will be deemed to represent that it has
determined and verified: (i) the availability of all materials; and (ii) field
measurements and field construction criteria related thereto, and that it has
checked and coordinated the information contained within such Submittals with
the requirement of the Work, the Contract Documents and the Construction
Progress Schedule and that such Shop Drawings, Samples, warranties and Product
Data conform to the Contract Documents.
C. Approval. Construction Manager shall not proceed to perform Work related
to a Submittal until the Submittal has been reviewed and approved by Owner,
which review shall occur with reasonable promptness as set forth in Paragraph
16.2 of the Agreement. Such Work shall thereafter be performed in accordance
with the Contract Documents and the approved Submittal.
D. Incomplete Submittals. Owner may return incomplete Submittals with no
action taken. The Construction Manager shall have no claim for any damages or
for an extension of time due to delay in the Work resulting from the proper
rejection of materials or from the proper rejection, correction, and resubmittal
of Shop Drawings, Samples and Product Data, or from the untimely submission
thereof.
E. Acceptance. Acceptance by Owner is for general design only. Quantities,
size, field dimensions and locations are some of the required characteristics
that are not part of Owner's acceptance and will not be checked. Accordingly,
Owner's limited acceptance shall in no way relieve the Construction Manager from
its obligation to conform its Work to the specifications for the Work and to the
requirements of the Contract Documents.
F. Deviations. The Construction Manager shall not be relieved of
responsibility for deviations from requirements of the Contract Documents by
Owner's approval of Submittals, unless the Construction Manager has specifically
informed Owner in a separate writing of such deviation at the time of submittal
and Owner has given written
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approval to the specific deviation. The Construction Manager shall not be
relieved of responsibility for errors or omissions in Submittals by Owner's
approval thereof.
G. Submission Schedule. Construction Manager shall submit a schedule
showing dates for submission, review and approval of its Submittals. Owner will
review this schedule and any and all changes required by Owner shall be made by
the Construction Manager. The final schedule shall be as approved by Owner. The
schedule shall take into account the order of Work and the time required to
prepare and approve the various Submittals. Such schedule shall ensure that all
Construction Manager submissions are timely, that adequate time is allowed for
Owner and Architect to review and approve the submission with reasonable
promptness as set forth in Paragraph 16.3 of the Agreement and that the dates
set forth for each Submittal do not adversely affect the requirements of the
Work, the Construction Progress Schedule or the time for completion set forth in
this Contract.
H. Rights in Shop Drawings. Owner may duplicate, use and disclose in any
manner and for any purpose (consistent with the provisions of Paragraph 34
hereof) all Shop Drawings delivered under this Contract. This "Rights in Shop
Drawings" Subparagraph shall be included in all subcontracts hereunder of any
tier.
I. Coordination Drawings. If requested by Owner or Architect, Construction
Manager shall submit drawings demonstrating coordination of the various portions
of the Work, in such form and with such detail as required by Owner or
Architect.
9. STANDARDS, TESTS AND INSPECTIONS
A. Reference Specifications or Standards. Strict adherence to the quality
standards set forth in or referenced by the Contract Documents is of the essence
for the Work. Various standards and specifications are incorporated by reference
in the technical section of the Specifications. In all such instances, the
reference shall mean the latest edition, including the amendment or revision in
effect as of the date when the Agreement, GMP Amendment and/or Separate GMP
Amendment is executed by the Parties, as applicable. If referenced
specifications or standards contain requirements at variance with the individual
sections of the Specifications, the more stringent provision shall govern. The
Construction Manager shall have the responsibility of making any specified
standard available at the Site. In addition, Construction Manager agrees (as
part of the Cost of the Work, subject to the GMP) to construct two samples or
mock up rooms, each of such type as shall be designated by Owner hereafter.
B. Inspections and Tests.
(1) Owner's Right to Inspect and Test. Owner has the right to test
and/or inspect all Work, including any material or equipment at any state of
development or fabrication, whether or not specified, at all reasonable times
and at all places, including, but not limited to the Supplier's plant or mill.
Any tests and/or inspections performed on behalf of Owner (other than those
tests referred to in Paragraph 9B(3) below) will be paid for by Owner. Any
necessary retesting or re-inspection required due to the failure of an initial
test and/or inspection will be performed on behalf of Owner as part of the Cost
of the Work, subject to the GMP or Separate GMP, as applicable.
(2) Concealed Work. If Owner or Architect has notified Construction
Manager of Owner's intent to test and/or inspect a portion of the Work, then, if
such Work is concealed before such tests are performed or before approval is
given, it shall be exposed, tested and restored at the Construction Manager's
expense, without reimbursement as a Cost of the Work. Notwithstanding the
foregoing, even if Owner or Architect has not notified Construction Manager of
Owner's intent to test and/or inspect a portion of the Work, Owner or Architect
may require the Construction Manager to expose concealed Work for the purpose of
testing and/or inspection. In such case the cost of such testing shall be paid
by Owner, if the concealed Work was properly performed, and by Construction
Manager, without reimbursement, if the concealed Work was improperly performed.
(3) Performance Testing. Witnessed performance tests, inspections and
approvals shall occur when required by governing authorities or when required by
the Contract Documents. The Construction Manager shall notify Owner and
Architect at least three (3) business days in advance of the date the equipment
will be ready for the final shop or field inspection or for performance tests.
These tests, and any required retests, shall be performed at the Construction
Manager's expense (as part of the Cost of the Work, subject to the GMP or
Separate GMP, as applicable).
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The Construction Manager (as part of the Cost of the Work, subject to the GMP or
Separate GMP, as applicable) shall promptly obtain and provide Architect with
all certificates and approvals.
(4) Obligation to Furnish for Testing. The Construction
Manager shall furnish promptly, as part of the Cost of the Work, subject to the
GMP or Separate GMP, as applicable, all facilities, labor, and material
reasonably needed for performing such safe and convenient inspections and tests
as may be required by Owner or Architect. All inspections and tests by Owner or
Architect shall be performed with reasonable promptness as set forth in
Paragraph 16.2 of the Agreement. Owner shall have the right to charge to the
Construction Manager any additional cost of inspection or test, when material or
workmanship is not ready by the Construction Manager for inspection or test at
the time specified, or when reinspection or retest is necessitated by prior
rejection. Such charges incurred by the Owner shall be promptly paid by the
Construction Manager and shall not be reimbursed as a Cost of the Work.
C. Correction of Work.
(1) Any deficiencies identified will be noted for correction by the
Construction Manager in a notification from the Owner or the Architect.
Correction of such deficiencies shall be in addition to and not in lieu of the
punch list(s) of deficiencies submitted to the Construction Manager by the Owner
and the Architect or prepared by the Construction Manager. Receipt of any such
notification shall not be construed as qualified acceptance of the Work nor
shall it waive Owner's right to require the Construction Manager to remedy, any
other deficiencies that may not be listed on such notification.
(2) In the event that the Construction Manager receives from Owner or
Architect a notification of faulty or unacceptable Work, the Construction
Manager shall promptly remove from the premises all Work condemned as failing to
conform to the requirements of the Contract Documents, whether incorporated in
the Work or not. The Construction Manager shall then promptly replace and
re-execute its own Work in accordance with the Contract Documents without change
to the time of completion. In addition, the Construction Manager shall perform
all cutting and fitting for other trades necessitated by the Construction
Manager's errors.
(3) Should the Construction Manager refuse to correct faulty or damaged
Work, or should Owner consider it inadvisable for the Construction Manager to do
so, Owner may either: (a) authorize another contractor to correct the Work at
the Construction Manager's expense, without charging such costs as a Cost of the
Work; or (b) accept the faulty or damaged Work and obtain from the Construction
Manager a credit, contained in a Change of Contract, representing the diminished
value of the Work accepted.
D. Final Inspection and Final Punch list. In addition to any punch list(s)
prepared by Construction Manager and any unacceptable Work previously identified
by the Owner or the Architect, the Owner and the Architect shall, prior to
Substantial Completion, make a final inspection of all Work, review Construction
Manager's proposed punch list and prepare a final punch list ("Final Punch
list") of Work that does not conform with the Contract Documents. Construction
Manager shall correct all non-conforming Work identified in the Final Punch list
within thirty (30) days after Construction Manager's receipt of the Final Punch
list or such later time as agreed to by Owner. Correction of all faulty or
unacceptable Work by the Construction Manager, including, without limitation,
correction of all items specified in the Final Punch list, shall be a condition
precedent to Final Payment.
E. Non-Waiver or Acceptance. Any inspections or tests conducted by Owner or
Architect or Owner's Consultants shall be for the sole benefit of Owner and
shall not relieve Construction Manager of the responsibility of providing
quality assurance control measures to assure that the Work complies with the
requirements of the Contract Documents. The performance of any inspections or
tests, or the omission of any inspections or tests, or a decision not to perform
any inspection or test, by Architect, Owner or any agent, employee or consultant
of Owner, shall not be a waiver of any of the Construction Manager's obligations
hereunder and shall not be construed as constituting or implying approval or
acceptance of the Work or any part thereof. No payment to the Construction
Manager (including Final Payment) or approval or acceptance by Owner or
Architect of any Work shall constitute final acceptance of the Work if it is
later discovered that such Work was not performed in accordance with the
requirements of the Contract Documents, unless such non-conforming Work has been
expressly and knowingly accepted by Owner in writing.
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10. INSPECTION AND USE OF PREMISES
A. Owner, Architect and all other persons specified by Owner, shall have
safe access to the Work at all times for inspection purposes provided however
that all such persons must comply with Construction Manager's reasonable safety
regulations to ensure their safe access to the Work. Notwithstanding the
foregoing, Owner, Architect, Owner's Consultants and their representatives shall
not be responsible for, or have control or charge of, any construction means,
methods, techniques, sequences or procedures or for safety and security
precautions or progress in connection with the Work, nor shall they be
responsible for the Construction Manager's failure to carry out the Work in
accordance with the Contract Documents. Should the Owner elect to conduct tours
during construction, or otherwise gain access to portions of the Site for the
purpose of public relations, rental or related activities, such access shall be:
(a) conducted at such times and in such areas of the Work as Construction
Manager may reasonably determine taking into account safety and impact on
construction activities; (b) conducted by employees of the Owner in conformance
with applicable OSHA requirements and other rules promulgated by Construction
Manager and approved by Owner relating to safety and impact on construction
activities; (c) conducted while accompanied by a representative of Construction
Manager, if so required by Construction Manager or requested by Owner; and (d)
coordinated with the OCIP and Owner's Insurance Advisor so that appropriate
insurance coverage for such activities is provided and in place. In addition,
the Owner may occupy designated portions of the Work prior to the date of
Substantial Completion of the entire Work for limited activities such as ticket
sales, administrative offices, fit out and installation of owner-supplied
equipment, fixtures and furnishings. Such use of any designated portion of the
Work shall be: (a) communicated to and coordinated with the Construction Manager
in writing; (b) permitted only after the Construction Manager, Owner and
Architect have inspected the area to be occupied and prepared an appropriate
punch list of items remaining to be completed and corrected, which list has been
reviewed and approved by the Owner; (c) permitted only when the area is safe for
occupancy and only if so allowed by applicable by Laws; and (e) coordinated with
the Project Specific Insurance Program so that insurance coverage is provided
and in place in connection with such use.
B. Subject to the requirements of paragraph 10A above and 10F below, Owner
reserves the right to occupy and use, for itself or any of its affiliates, any
portion of the Work and operate any equipment that is part of the Work without
constituting acceptance of the Construction Manager's Work or material involved
either in whole or in part, unless Owner, in its sole discretion, expressly
accepts portions of the Work or pieces of equipment by written notice to the
Construction Manager.
C. The Construction Manager shall confine its apparatus, the storage of
materials and the operations of its workmen to limits indicated by Laws and the
reasonable directions of Owner. The Construction Manager shall not encumber the
Site with its material except for such material as is reasonably necessary for
the Construction Manager to perform the Work without interruption and as
approved in writing by Owner.
D. The Construction Manager shall enforce the instructions of Owner
regarding signs, advertisement and smoking. No advertising signs, name signs or
logos of any sort shall be displayed on the Site, except those that Owner may
elect to display and those provided for herein.
E. Throughout the term of this Contract, Construction Manager shall provide
Architect, Owner, their representatives and consultants, and their respective
employees with access to Owner's and Inspector's trailer(s), telephone(s), and
restroom facility(ies) at the Site.
F. The Owner shall have the right to occupy or use ahead of schedule all or
any Substantially Completed or partially completed portion of the Work when such
occupancy and use are in its best interest, notwithstanding the time of
completion for all of the Work. If such occupancy or use increases the Cost of
the Work (other than for corrections which are the Construction Manager's
responsibility) or delays its completion, the Construction Manager shall be
entitled to extra compensation or extension of time, or both, as allowed by the
terms of this Contract. Claims for such extra compensation or extension of time,
to be valid, shall be made in writing in the time and manner required by the
Contract Documents. After the Owner has taken occupancy of all or any
Substantially Completed portion of the Project under construction, the
Construction Manager shall not disrupt the Owner's use and occupancy thereof to
make corrections in the Work but shall make such corrections in a fashion so as
not to disrupt the Owner's use and occupancy of the area at issue. Any increased
cost of such corrections caused solely by Owner's occupancy of the area affected
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shall be a Cost of Work. The Owner may require the use and operation of any
completed heating, ventilating, air-conditioning or other equipment at the time
that it occupies or uses any substantially completed portion of the Project
under construction. In such event, the Owner may require the Construction
Manager to operate such equipment and will pay the Construction Manager the cost
of such operation required for the Owner's use and occupancy, but the
Construction Manager shall be responsible for such equipment and for its careful
and proper operation. At anytime, the Owner may itself assume the care and
maintenance of any portion of the Project which it is occupying and using and/or
the operation of any such equipment, but in each case the Construction Manager
shall not be relieved of his responsibility for the full completion of the Work
and the protection of his tools, materials and equipment. Without limiting the
foregoing and without any increase in the Contract Sum, Construction Manager
shall substantially complete and deliver to Owner for early occupancy the
convention center portion of the Project on or beforeSeptember 28, 2007 and
shall meet all of the Completion Date(s) and Milestone Dates established by
Owner pursuant to the Agreement and all amendments thereto. Construction Manager
and Owner agree that the appropriate allocation of cost for operation of
heating, ventilating, air conditioning and other equipment within the convention
center shall be ten percent (10%) of the utility xxxx of Construction Manager
for the Project from the date of turnover of the convention center area until
Substantial Completion of the entire Work.
11. PROTECTION OF WORK AND PROPERTY; SAFETY; EXISTING UTILITIES
A. Protection of Work. The Construction Manager shall continuously maintain
adequate protection of all Work from damage due to any cause, including
inclement weather, and shall protect all property at the Site from damage or
loss resulting from the Construction Manager's operations. The Construction
Manager shall adequately protect improvements within public rights-of-way and
property of adjacent landowners. The Construction Manager shall protect and
secure its Work and materials against loss by theft or otherwise. The
obligations of this Paragraph 11 shall apply, regardless of whether the property
in the Construction Manager's possession was purchased by the Owner or the
Construction Manager.
B. Safety. Construction Manager shall be responsible for preparing,
implementing, maintaining and supervising all safety and security precautions
and programs in connection with its Work. Construction Manager shall take all
necessary precautions for the safety of its employees and all other persons who
may be affected by the Work. As between the Owner and Construction Manager,
Construction Manager shall be responsible to the Owner for any and all safety
issues relating to the Work. Construction Manager shall administer and manage
the safety program. This will include, but not necessarily be limited to, review
of the safety programs of Subcontractors of every tier. Construction Manager
shall monitor the establishment and execution of effective safety practices,
consistent with industry practice, as applicable to the Work, and compliance
with all applicable regulatory and advisory agency construction safety
standards. The Construction Manager's responsibility for review, monitoring and
coordination of the Subcontractors' safety programs shall not extend to direct
control over execution of the Subcontractors' safety programs. Notwithstanding
Construction Manager's safety obligations to the Owner, it is agreed and
understood that each individual Subcontractor shall remain the controlling
employer responsible for the safety programs and precautions applicable to its
own work and the activity of other's work and areas designated to be controlled
by such Subcontractor.
C. Accidents. In case of an accident involving an injury to anyone
performing Work for Construction Manager or its Subcontractors,
Sub-Subcontractors or their employees, Construction Manager shall notify Owner
within one (1) business day and shall file a fully detailed accident report as
soon as possible and not later than two (2) business days after such accident.
Construction Manager shall also file promptly such reports as are required by
its insurance carrier, the OCIP and such other civil authorities as might govern
and shall simultaneously provide copies to Owner.
D. Emergencies. In an emergency affecting the safety of life or the Work or
of adjoining property, the Construction Manager is hereby permitted to act
reasonably to prevent such threatened loss or injury. Reasonable costs incurred
by the Construction Manager because of emergency work shall be determined by
agreement of the Parties hereto, or if the parties do not agree, by the claims
procedure established hereby.
E. Utilities. The Construction Manager shall establish and maintain direct
and continuous contact with the owners or operators of local utilities before
commencing any Work. Owner will provide the Construction Manager, for its
general information only, records in Owner's possession with regard to the
nature and location of known utilities but does not warrant or represent that
the information is accurate and complete. The Construction Manager shall verify
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the locations and availability of any utilities that may be affected by its
operations (and, if any variations are found to exist from the information
supplied by the Owner which the Construction Manager would have discovered upon
a reasonable inquiry and inspection prior to commencing the Work, the
Construction Manager shall not be entitled to make claim for an increase in the
GMP or Separate GMP, as applicable, and/or an extension of the Completion
Date(s) or Milestone Dates). At least fourteen (14) days prior to the
anticipated Work, Construction Manager shall submit in writing to Owner and to
utility owners for their review and approval of its plan for: (i) performing the
Work; and (ii) promptly resolving any utility conflicts to avoid delay. No Work
in the vicinity of, or which may affect utilities, shall be started until
approved by Owner and the utilities. The Construction Manager shall prepare and
maintain an updated list of information on all Project-related utilities
including company names, addresses, contact persons and types of utility. During
the course of the Work, Construction Manager shall supply, temporary utilities
necessary for performance of the Work. Construction Manager shall be responsible
for connecting to all necessary permanent utilities for the Work and shall file
and process all applications for all such permanent utilities on behalf of
Owner. Hookup fees for such permanent utilities shall be paid pursuant to
Paragraph 7.1.5 of the Agreement. Owner shall assume liability for the permanent
utilities upon Substantial Completion.
F. Utilities on As-Built Drawings. All utilities in the vicinity of the
Project and related to the Work shall be shown on the As-Built Drawings (as
required pursuant to Paragraph 33 hereof) when such utilities have been
identified on Drawings provided by Owner, identified by survey or encountered by
the Construction Manager during construction (in which case the utility shall be
shown at its actual position at the point of interference).
12. HAZARDOUS MATERIALS AND POLLUTION CONTROLS
A. Hazardous Materials. In the event the Construction Manager encounters on
the Site material reasonably believed to be a Hazardous Material that has not
been rendered harmless, the Construction Manager shall immediately stop Work in
the area affected and report the condition to Owner in writing. The Work in the
affected area shall be resumed after disposal, abatement or removal
(collectively, "remediation") of the Hazardous Material, or when it has been
rendered harmless. The Construction Manager shall be under no obligation to
perform remediation of Hazardous Material, unless such remediation arises from
an Environmental Exclusion (defined herein below). The Owner shall indemnify,
defend and hold harmless the Construction Manager from claims of third parties
or for remediation arising out of the presence of Hazardous Materials at the
Site, except to the extent: (i) such condition is disclosed by the Contract
Documents; (ii) the remediation of such Hazardous Material is a part of the Work
(including, without limitation, remediation made a part of the Work by issuance
of a Change Order or Change Directive); or (iii) such claim or required
remediation is caused in whole or in part by, or arises in whole or in part out
of , the act or omission of Construction Manager or any Subcontractor or Sub
Subcontractor bringing such hazardous materials onto the Site, or knowingly
disturbing or knowingly continuing to be present or performing work at any
affected area containing Hazardous Materials without Owner's written consent
after the Construction Manager or any Subcontractor or Sub-subcontractor has
become or been made aware of the presence of the Hazardous Materials (each an
"Environmental Exclusion"). Construction Manager shall indemnify, defend and
hold harmless Owner against any loss, cost or damage resulting from or arising
out of any Environmental Exclusion to the extent that such loss, cost or damage
is caused by the act or omission of Construction Manager or any of its
Subcontractors or Sub-subcontractors.
B. Pollution Controls. Construction Manager shall not burn waste without
prior written permission from Architect and appropriate governmental
authorities. Construction Manager shall control the generation of dust resulting
from the Work and shall undertake such dust controls as are reasonably required
by Architect or Owner. Construction Manager shall undertake reasonable efforts
to minimize the amount of noise and light generated by the Work and the adverse
affects of such noise and light on adjacent property owners and the public.
Construction Manager shall at all times comply with the Laws applicable to the
foregoing activities.
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13. CLEAN UP
A. Daily Clean Up.
(1) At all times, Construction Manager shall keep the Site and adjacent
property free from accumulation of trash and debris that results from the
operations of the Construction Manager, its Subcontractors and Suppliers
(including trash and debris from material that is furnished by Owner and that is
installed by the Construction Manager, its Subcontractors, Sub Subcontractors
and Suppliers). Construction Manager shall provide for all clean up and offsite
disposal of all such trash and debris.
(2) If the Construction Manager fails to clean up as provided in this
Paragraph, Owner reserves the right, upon eight (8) hours written notice to the
Construction Manager, to proceed to remove the debris, the cost of which will be
charged against the Construction Manager.
B. Final Clean Up.
(1) Prior to Substantial Completion, the Construction Manager shall employ
experienced persons or a professional team to make a final clean up of the Work
or such portions of the Work as Owner may designate. Such clean-up shall leave
all surfaces, equipment, finishes, fixtures, furnishing and other similar items
in a condition that is clean, ready for those items' intended use and that
requires only ordinary care to maintain. Such clean up shall include, without
limitation, the cleaning of all glass surfaces, the waxing of bare floors and
the vacuuming of carpets. The Construction Manager shall be responsible to
reclean as directed any areas soiled or dirtied as a result of performing
corrective or uncompleted Work.
(2) At the completion of the Work, Construction Manager shall remove all
trash, waste and debris from the Site as well as its tools, temporary
facilities, construction equipment, machinery and surplus materials and shall
deliver all improvements constructed in a professionally cleaned, ready to
market and ready to use condition.
14. CONSTRUCTION PROGRESS SCHEDULE
A. Schedule. The Construction Manager shall prepare and submit a
calendarized Critical Path Method ("CPM") schedule (the "Construction Progress
Schedule" or "Schedule") including all Completion Date(s) and Milestone dates
required by Owner, including Milestone Dates set forth in Exhibit H to the
Agreement or any amendments to the Agreement) to Owner within thirty (30) days
of the execution of the GMP Amendment or Separate GMP, as applicable; or at
least ten (10) days prior to the commencement of the Work required by the
applicable Separate GMP Amendment or GMP Amendment, whichever is sooner. The
Schedule shall contain a detailed graphic representation of all activities that
could affect the progress of the Work, including a schedule of Submittals,
Owner's requirements for installation of furniture, furnishings, fixtures,
equipment and other items provided by Owner and coordination and cooperation
with other Subcontractors performing work at the Site. The Schedule shall
identify the Project by name. The Construction Manager shall submit the Schedule
on computer disk in a format acceptable to Owner. Upon approval by Owner, the
Construction Progress Schedule shall become a Contract Document and may be
revised only pursuant to the provisions of this Agreement or with the written
consent of the Owner. The Construction Manager agrees to comply with the
Construction Progress Schedule, as revised as provided herein, and agrees that
the Work shall be prosecuted regularly, diligently and without interruption,
within the time specified.
B. Schedule Updates and Revisions. The Schedule will be revised, updated
and submitted by Construction Manager at least the first (1st) of each month.
However, Owner reserves the right to require Construction Manager to update the
Schedule as often as Owner deems reasonably necessary. All such revisions and
updates shall be submitted in written format and in electronic format specified
by Owner. Any revisions to the Schedule shall be accompanied by a written
explanation of the reasons for such revisions and no such revision shall be
incorporated into the Schedule except as provided under this Agreement or with
Owner's written consent. A copy of the Schedule shall be maintained at all times
on the Site, and revised and updated copies shall be provided to Owner at any
time if requested. Failure of the Construction Manager to deliver an initial
Schedule within the time specified above or to
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deliver timely updates of such Schedule upon request by Owner, or as provided
for above, may be grounds for Owner to withhold progress payments for the Work
completed until such time as the Schedule(s) are delivered to Owner.
C. Additional Work to Comply with Schedule. In the event that the
Construction Manager or any of its Subcontractors or Sub Subcontractors on their
own initiative (other than to mitigate an Excused Delay without increased cost
to Owner) changes the sequence or duration of any of the construction activities
from such sequences or durations as indicated on the Schedule established at the
commencement of the Work, Owner, unless agreed in writing otherwise, will not be
liable for any claims for any direct or indirect costs, delay costs, costs
related to loss of efficiency, resequencing of work or extension of time or any
other costs which may result from such actions by the Construction Manager or
its Subcontractors of Sub Subcontractors. In addition, other than to mitigate an
Excused Delay without increased cost to Owner, Construction Manager shall not be
entitled to change sequences or durations without Owner's prior written approval
of such changed sequences or durations. Although Construction Manager may finish
early, Construction Manager agrees that it shall have no claim for any alleged
delay to its right to finish early.
D. Failure to Comply with Schedule. Should the Construction Manager fail to
comply with the Construction Progress Schedule, or meet the Completion Date(s)
or Milestone Dates, Owner shall have the remedies set forth in Section 4.3 of
the Agreement and Paragraphs 18 and 19 hereof.
E. Time is of the Essence. Time is of the essence to the performance of
Construction Manager's obligations under this Contract. The date of
commencement, rate of progress, and each of the Completion Date(s) and each of
the Milestone Dates are essential conditions of the Contract Documents.
15. REPORTS AND MEETINGS
A. The Construction Manager shall each day prepare and deliver to Owner and
Architect a Daily Report on the standard form provided by Owner (Exhibit 6)
showing the number of foremen, journeymen mechanics and other personnel employed
at the Project that day, and the location and nature of the Work performed.
Concurrently therewith, if requested by Owner, the Construction Manager shall
deliver to Owner the various Subcontractors' and Sub Subcontractors' Daily
Reports on the standard form provided by Owner (Exhibit 7).
B. Not more than thirty (30) days following execution of the Agreement, GMP
Amendment or Separate GMP Amendment, as applicable, but prior to commencement of
the Work required thereby, the Construction Manager and representatives of all
Subcontractors designated by Owners shall attend a pre-construction meeting
scheduled by Owner and Architect. The Construction Manager's Project Manager,
General Superintendents and other persons designated by Owner, shall represent
the Construction Manager; their supervisory personnel shall represent
Subcontractors. The purpose of the meeting will be to discuss matters relating
to the Project.
C. Each week during the progress of the Work, the Construction Manager will
conduct a Progress Meeting at a time and place agreed upon by the Construction
Manager and Owner, during which the Construction Manager shall review the
progress of the Work relative to the Construction Progress Schedule and discuss
ways of maintaining the progress of the Work. The Construction Manager shall
require Subcontractors and Sub Subcontractors who are actively performing Work
at the time the meeting is held to be present and be represented by a person
authorized to commit their company. If requested by Owner, the Construction
Manager shall require Subcontractors and Sub Subcontractors who are not then
actively performing Work to be present and be represented by a person authorized
to commit their company. The Construction Manager shall keep accurate minutes of
each meeting and, if requested by Owner, shall deliver a signed copy of each set
of minutes to Owner within three (3) business days of each meeting. Owner,
Architect and Owner's Consultants shall be entitled to attend and participate in
all such Progress Meetings.
D. By the fifth (5th) day of each month, the Construction Manager shall
submit to Owner a written Contract Status Report, which report shall, at a
minimum, show, in detail, the progress of the Work relative to the approved
Construction Progress Schedule; a listing of outstanding Submittals, requests
for information or proposals upon which the Construction Manager is awaiting
response from Owner or Architect and the impact, if any, such Submittals,
requests for information or proposals have on the Construction Progress
Schedule; the Contract Sum, including additions or deductions arising out of
accepted Changes of Contract; and a listing of pending or outstanding
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approved and proposed Changes of Contract (Change Order log) and Construction
Manager's claimed cost and/or extension of time resulting there from, current
status of allowances, current status of any proposed value engineering, current
buy out log, bid package and award status, status of all subcontracts, and
copies of all subcontractor and supplier default notices.
E. If requested by Owner, Construction Manager shall submit to Owner: (i)
lists of Suppliers, items to be purchased from the Suppliers to be permanently
incorporated into the Work, time required for fabrication of the items and the
scheduled delivery dates for each item; (ii) copies of purchase orders for
supplies purchased for the Work; (iii) photographs of the Work and the Site (to
be paid for by Owner); and (iv) any other reports or information related to the
Work and the Site that is reasonably requested by Owner.
F. Failure of the Construction Manager to timely deliver the reports
required or requested by Owner pursuant to this Paragraph or to schedule and
hold the meetings required by this Paragraph shall constitute cause for the
withholding of payments by Owner.
16. DELAYS
A. Remedy for Delays. If the Work is delayed by an Excused Delay as defined
in Section 4.4 of the Agreement, the Contract Completion Date(s) and Milestone
Dates shall be extended by the amount of time that such dates are delayed by
such Excused Delay, as set forth in Section 4.3 of the Agreement. In the case of
an Owner Caused Excused Delay, as defined in Section 4.4 of the Agreement,
which, in the aggregate exceeds 90 days (exclusive of any concurrent cause),
Construction Manager shall, in addition be entitled to increase the GMP by the
incremental increased cost of materials proximately caused by Owner Caused
Excused Delay ("Owner Excused Delay Cost"). Owner Excused Delay Cost shall not
include any items of the Cost of the Work other than material cost. The
Construction Manager shall notify the Owner in writing, before incurring any
Owner Excused Delay Cost and shall not incur such cost without obtaining the
advance written approval of the Owner. The Construction Manager shall use all
available means to mitigate Owner Excused Delay Cost. The Construction Manager
shall not be entitled to recover any Owner Excused Delay Cost that is incurred
without Owner approval or that could have been mitigated. Extension of time,
recovery of Owner Excused Delay Cost, subject to the above limitations, and any
related increase in Fixed General Conditions Cost described in Section 5.2.1.2
of the Agreement, shall be the Construction Manager's sole remedy for any delay
or impact to or acceleration in the completion of the Work, except as provided
in Section 16(B) below if Owner directs acceleration or mitigation activity to
remove or reduce the period of Excused Delay.
B. Owner's Right to Accelerate or Mitigate Excused Delay. Owner shall have
the right to accelerate the Work or undertake other mitigation to mitigate an
Excused Delay. If Owner directs the Construction Manager to accelerate the Work
or take other mitigation action, the Construction Manager shall do so without
extension of the Construction Schedule or Completion Date or Milestone Dates or
with only such extension thereof, as may be: (i) agreed by Change Order; or (ii)
specified by Change Directive, to the extent that the Work can reasonably be
accomplished within that time frame. Such acceleration or mitigation shall be a
Material Change of the Agreement.
C. Claims for Delays.
(1) Within fourteen (14) days from the date when Construction Manager first
recognizes or should have recognized a delay in the performance of the Work,
Construction Manager shall submit to Owner and Architect, in writing, a notice
of the Excused Delay. Such notice of Excused Delay shall, at a minimum, describe
the nature and cause of the delay and provide a preliminary estimate of the
impact of said delay on the Construction Progress Schedule and Owner Excused
Delay Cost, if any. The Construction Manager's failure to submit such notice to
Owner and Architect shall deprive the Construction Manager of its right to file
any claims with respect to such delay, whether under the Contract or under any
other theory of recovery. In the case of a continuing cause of delay, only one
(1) claim shall be necessary. The giving of such notice shall not of itself
establish the validity of the cause of delay or of the extension of the time for
completion or Owner Excused Delay Cost. Submission of reports and/or updates
required elsewhere herein in provisions concerning the Schedule, reports and
meetings shall not constitute such notice.
(2) Within fourteen (14) days from the submittal to Owner and Architect of
the notice of delay detailed in Paragraph 16C(1) above, Construction Manager
shall submit to Owner and Architect a claim for an extension of time
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and Owner Excused Delay Cost which shall include all documentation supporting
the claim then reasonably available to the Construction Manager. Such submittal
shall include a detailed description of all changes in activity durations,
logic, sequence, or otherwise in the Construction Progress Schedule and shall
include a specific justification for each such change as well as a detailed
description and documentation of Owner Excused Delay Cost and Construction
Manager's efforts to mitigate such cost. The Construction Manager's failure to
submit such a claim to Owner and Architect shall deprive the Construction
Manager of its right to file any claims with respect to such delay, whether
under the Contract or under any other theory of recovery. The filing of such
claim for an extension of time shall not of itself establish the validity of the
cause of delay or of the extension of time for completion or Owner Excused Delay
Cost. Submission of reports and/or updates required elsewhere herein in
provisions concerning the Schedule, reports and meetings shall not constitute
such a claim.
D. Suspension of Work.
(1) Generally. Construction Manager shall not suspend Work without written
permission of Owner unless so directed by any order of a court or other public
authority having jurisdiction. Such suspension shall not be an Excused Delay and
Construction Manager shall have no right to extension of time or increase in the
Contract Sum if such order results from the act or omission of Construction
Manager or any of its Subcontractors, Sub-subcontractors or suppliers.
(2) Owner's Right to Suspend. Subject to Section 19C(1) of these General
Conditions, Owner reserves the right at any stage of the Work, to suspend
operations thereon, or upon any parts thereof, on one or more occasions, either
for a time named or indefinitely, by giving the Construction Manager written
notice. . When under suspension, the Work shall be put in proper and
satisfactory condition, and properly protected, including as directed by Owner.
Construction Manager recognizes that many events, known and unknown, including
without limitation, legal challenges, administrative or political issues
affecting the Project, delays in off site public improvements, could result in a
determination by Owner to suspend work on the Project, and Construction Manager
accepts such risk, subject to the provisions of this Section 16D. In all cases
of suspension ordered by the Owner, the Work shall not again be resumed until
permitted by written order of Owner.
(3) Extension of Time. If Owner's rights of suspension are exercised for
reason other than the wrongful act or omission of Construction Manager or any of
its Subcontractors, Sub-subcontractors or suppliers, Owner shall grant to the
Construction Manager an extension of time for the performance of the Work equal
to the time of such suspension, and, if and to the extent that Construction
Manager reasonably demonstrates that particular item(s) of Work are further
unavoidably delayed by reason of such suspension, such additional period of
delay as is reasonably and actually incurred with respect to the affected items
and integrally related items that occur later on the same critical path.
Construction Manager shall, however, be required to use its best efforts to
mitigate suspension related delay. By way of example, if Construction Manager
misses a steel production deadline, and because of the producer's production
schedule, the related delay exceeds the period of suspension, Construction
Manager would be entitled to actual period of delay incurred. If however, such
delay could have been avoided or mitigated by placing an order for conforming
material with another producer, no additional delay would be allowed. Further,
no adjustment shall be made under this Paragraph for any suspension to the
extent that equitable adjustment in the time for performance of the Work is
provided for or excluded under any other provision of this Contract.
(4) Adjustment to Contract Sum. If Owner suspends the Work pursuant to this
Paragraph, for reason other than the wrongful act or omission of Construction
Manager or any of its Subcontractors, Sub-subcontractors or suppliers, the GMP
(or Separate GMP, if applicable) shall be increased by the actual and reasonable
cost increase incurred by the Construction Manager because of the suspension,
including but not limited to its actual, reasonable cost of demobilization and
remobilization, provided that Construction Manager shall be required to mitigate
costs of demobilization and remobilization and shall require the same of all of
its Subcontractors and Suppliers at every tier. However, no such increase shall
be made under this Paragraph for any suspension to the extent that the
completion of the Work would have been concurrently suspended, delayed or
interrupted by any other cause that is attributable to the act or omission of
Construction Manager or its Subcontractors or Suppliers at any tier.
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17. CHANGE OF CONTRACT
A. Changes In the Scope of Work. Owner may order changes in the scope of
the Work and the Construction Manager shall perform the Work as changed. Owner
may order changes pursuant to either a Change of Contract or a Change Directive,
as set forth below:
(1) Change of Contract. Owner may issue in writing a request for a Change
of Contract proposal to the Construction Manager. The Construction Manager shall
submit a proposal for the requested Change of Contract to Owner within fourteen
(14) days of the receipt of Owner's request. The proposal shall specify proposed
changes, if any, to the Contract Sum and the time for performance and shall
contain a quantity survey including quantity calculations, area calculations,
Unit Prices, labor hours, rates and any other information necessary to provide
Owner, in Owner's opinion, with a comprehensive understanding of the proposal.
The proposal shall contain any credits due Owner resulting from the requested
Change of Contract. The proposal shall reflect Unit Prices contained in the
Contract Documents, if any; the Construction Manager shall represent and certify
to Owner that the prices contained therein are the lowest prices reasonably
attainable by Construction Manager for the nature, scope and timing of the Work
involved. If work covered by the proposal is similar to work (including
quantities) for which Unit Prices have been established, the Unit Prices for
such established work shall be, at Owner's option, the basis for determining the
cost of such similar work. The proposal shall clearly indicate all areas of the
Work affected by said requested Change of Contract. The Construction Manager
shall require each Subcontractor, Supplier and Sub-Subcontractor to conform to
the requirements of this Paragraph.
(2) Change Directive. If time restraints require or if Owner and the
Construction Manager fail to agree upon the cost of any change in the scope of
the Work pursuant to Paragraph 17A(1), Owner may at any time direct the
Construction Manager to proceed with a change in the scope of the Work by
issuing a Change Directive. If the Construction Manager claims that such work
requires a change to the Contract Sum or the time of performance, then the
Construction Manager shall submit to Owner a proposal for a Change of Contract
in accordance with Paragraph 17A(1). Owner may also issue a Change Directive to
assess back charges against the Construction Manager.
B. Changes To Contract Sum and Time of Performance. The Contract Sum and
the time for performance may be changed only by a Change of Contract executed by
both Owner and Construction Manager or a Change Directive executed by Owner. A
Change of Contract signed by the Construction Manager indicates its agreement
therewith, including the adjustment in the Contract Sum or the time for
performance, if any. The Construction Manager agrees that unless the Change of
Contract specifically and clearly modifies the time for performance, that there
shall be no modification in the time for performance and, by executing the
Change of Contract, the Construction Manager expressly waives and releases any
and all claims, rights, or interests, including, but not limited to, those for
extensions of time, impact, disruption, loss of efficiency, "ripple," or other
extraordinary or consequential costs, originating directly or indirectly out of
the Work set forth in or related to the particular Change of Contract.
Furthermore, unless expressly provided otherwise in the Change of Contract, the
Construction Manager agrees that each Change of Contract and the adjustments in
the Contract Sum or the time of performance set forth therein, if any, shall be
final as to the additional Work set forth therein and that Construction Manager
shall not be entitled to any additional adjustments to the Contract Sum or the
time of performance as a result of such additional Work.
C. Calculation of Changes to Contract Sum. Changes, if any, to the Contract
Sum resulting from a Change of Contract or Change Directive shall be determined
as set forth in this Paragraph 17C. The allowable limit for all tiers of
Subcontractor xxxx-up is based on actual, reasonable cost plus a percentage fee
for overhead and profit equivalent to ten percent (10%) to be apportioned
between any and all Subcontractors and Sub-Subcontractors. For work performed by
the Construction Manager's own forces, the Construction Manager's xxxx-up shall
be limited to actual cost with no additional Construction Manager's Fee and
increased Fixed General Conditions only as permitted by the remaining provisions
of this Contract. For the purpose of calculating trade xxxx-up, actual cost is
defined as: (i) direct cost of labor, including social security and unemployment
insurance, and fringe benefits required by agreement or custom, workers'
compensation insurance and bond premiums (if any); (ii) actual cost of
materials, including sales tax and the cost of delivery; and (iii) rental value
of equipment and machinery obtained and used specifically for such work. Actual
cost does not include any item which could be deemed to be a general conditions
cost or overhead such as, but not limited to, the cost of Construction Manager
and Subcontractor supervisory personnel assigned to the Project, and
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any of the Construction Manager's office and related expenses. The Parties
acknowledge and agree that there will be no overhead or profit markup on net
deductive changes. The Construction Manager is not required to perform a change
in the Work until the Owner issues either a Change of Contract or Change
Directive.
D. Separate Contractors. In the alternative to the foregoing Paragraph 17C,
Owner shall have the right to employ a separate contractor to perform such
changes in the scope of the Work. The Construction Manager shall afford such
separate contractors reasonable opportunity for the delivery and storage of
their materials and equipment and the execution of the work, and the
Construction Manager shall reasonably coordinate its Work with the work of such
separate contractors, as part of the Cost of the Work subject to the GMP or
Separate GMP as applicable.
E. Credits. Any credit due Owner resulting from a Change of Contract will
be determined as set forth in this Paragraph 17E. No overhead or profit xxxx-up
will be given back on Work that is deducted from the Scope of this Contract. The
actual credited cost is defined as: (i) direct cost of labor, including social
security and unemployment insurance, and fringe benefits required by agreement
or custom, workers' compensation insurance and bond premiums (if any); (ii)
actual cost of materials, including sales tax and the cost of delivery; and
(iii) rental value of equipment and machinery obtained and used specifically for
such work. Actual cost does not include any item which could be deemed to be a
general conditions cost or overhead such as, but not limited to, the cost of
Construction Manager and Subcontractor supervisory personnel assigned to the
Project, and any of the Construction Manager's office and related expenses.
F. Audit. All costs or expenses, or both, claimed to be incurred or related
to work performed pursuant to Paragraphs 17C and 17E above shall be subject to
verification and audit by Owner.
G. Owner Election to Pay. Owner, in its sole discretion, may elect to pay
for extra work performed by the Construction Manager although the Construction
Manager has not complied with all the requirements of the foregoing provisions
of this Paragraph. The Construction Manager expressly agrees that such election
by Owner shall not be deemed a waiver of Owner's rights or constitute a course
of conduct, abrogating the requirements of this Paragraph. The Construction
Manager further expressly agrees that Owner shall have no obligation to pay the
Construction Manager unless the Construction Manager has complied with all
requirements of this Paragraph 17, and Owner's rights to require such compliance
shall be the same as if Owner had required such full compliance with respect to
each and every item of extra work performed by the Construction Manager, to the
extent that Owner takes exception to only a portion of the Work performed by
Construction Manager pursuant to any Change of Contract or Change Directive,
Owner agrees to pay for those portions of such work that are not contested by
Owner.
H. Construction Manager Claims for Extra Cost/Extensions of Time. If the
Construction Manager claims that any instructions by Drawings or written
clarification or otherwise involve extra costs or require an extension of time
under this Contract, it shall give Owner and Architect written notice within
fourteen (14) days of the receipt thereof. Within fourteen (14) days of
submission of the written notice, the Construction Manager shall submit the
back-up for all allowable extensions of time and all claimed extra costs,
including, but not limited to, detailed labor and material costs, subject to the
limitations set forth in Paragraph 16(A) hereof. The Construction Manager's
failure to submit to Owner and Architect such notice or back-up information
pursuant to the requirements of this Subparagraph shall deprive the Construction
Manager of its right to claim any such extension of time or extra costs under
this Contract or under any other theory of recovery.
18. OWNER'S RIGHT TO DO WORK/STOP WORK
If, in Owner's reasonable determination, Construction Manager shall neglect
to prosecute the Work properly or fail to perform any material provision of the
Contract (including, but not limited to, failure to comply with the Construction
Progress Schedule or failure, refusal or neglect to supply a sufficient amount
of labor, material or supervision in the prosecution of the Work), Owner shall
have the right to: (i) order Construction Manager to stop the Work (or any
portion thereof), without increase in the GMP or Separate GMP, until the cause
for such order has been eliminated; (ii) direct the Construction Manager,
without increase in the GMP or Separate GMP, as applicable, to furnish such
additional labor and/or material as may, in Owner's reasonable determination, be
required to comply with Construction Manager's obligations hereunder; or (iii)
upon forty-eight (48) hours written notice to Construction Manager and without
prejudice to any other remedy Owner may have, make good such deficiencies and
deduct the cost
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thereof from any payment then or thereafter due the Construction Manager. If the
payments then or thereafter due the Construction Manager are not sufficient to
cover the amount incurred by Owner under subsection (iii) above, Construction
Manager shall pay the difference to Owner. Any costs incurred by Owner pursuant
to the exercise of the foregoing rights shall not increase the Contract Sum.
Owner's exercise of any of the foregoing rights shall not give rise to any duty
on the part of Owner to exercise its rights for the benefit of the Construction
Manager or any other person or entity, nor shall it relieve the Construction
Manager of its responsibility for providing for the safety of persons on the
Site or void any warranty of the Construction Manager either express or implied.
19. TERMINATION
A. Termination for Default.
(1) The Construction Manager shall be in default of this Contract if it:
(a) becomes insolvent; (b) files or has filed against it any petition in
bankruptcy or makes a general assignment for the benefit of its creditors; (c)
fails to pay for materials, supplies, labor, or other items purchased or used in
connection with the Work as and when required by this Contract; (d) refuses or
fails to prosecute the Work, or any separable part thereof, with such diligence
as will ensure the completion of the Work in accordance with the Construction
Progress Schedule and the Completion Date(s) and Milestone Dates established by
Owner to be incorporated therein; (e) fails, refuses or neglects to supply
sufficient labor, material or supervision in the prosecution of the Work; (f)
improperly interferes with or disrupts the operations of Owner or any other
Construction Manager, supplier, Subcontractor, or other person working on the
Project; or (g) abandons the Project; or (h) commits any other breach of this
Contract.
(2) In the event of a default by the Construction Manager, the Construction
Manager shall cure the default within seven (7) days after the receipt of a
written notice of the default from the Owner, or, if such default is not
susceptible of being cured within seven (7) days, commence within such seven (7)
day period and diligently continue and complete such cure as soon as possible,
but in no event later than ninety (90) days after the receipt of such notice.
Any default that is capable of cure by the expenditure of money and any
unexcused delay shall be deemed susceptible of cure within seven (7) days. If
the Construction Manager fails to cure its default within the foregoing period,
the Owner may terminate this Contract and such termination shall be effective
seven (7) days after the Construction Manager receives a separate written notice
thereof. At Owner's option, Owner may rescind its termination notice by so
notifying the Construction Manager in writing prior to the expiration of seven
(7) days after the Construction Manager received the termination notice or prior
to the time the Construction Manager removes its equipment and forces from the
Site, whichever is later. Upon the effective date of termination, Owner may take
possession of all or any materials, supplies, equipment and tools pertaining to
this Project whether on the Site, in the Construction Manager's shop or in
transit. Owner may also take possession of all or any equipment belonging to
Construction Manager and peculiar to the fabrication or installation of the
Work, provided such equipment is located on the Site. Upon the effective date of
termination, Owner may request that Construction Manager assign its interest in
certain or all subcontracts and purchase orders pursuant to Paragraphs 21B and
21C hereof or Owner may make independent arrangements for the completion of the
Work. The amount of the completion cost, as well as any other costs, damages, or
expenses, including Owner's legal fees and expenses, incurred as a result of a
default, shall be charged against any unpaid portion of the GMP (or applicable
Separate GMP) due the Construction Manager; and, if said total costs, damages,
or expenses shall exceed such balance due, the Construction Manager agrees to
pay the amount of said excess within fourteen (14) days of Owner's demand
therefor.
(3) The materials, supplies, equipment and tools taken by Owner may be used
in completing the Work and may be incorporated into the improvements being
constructed. With respect to any of such items incorporated into the Project, or
consumed in the Work, the net reasonable value of the same as of the date of
taking shall be credited against the aforesaid total completion costs, damages
and expenses. With respect to any such items which are not so incorporated or
consumed, or which have a salvage value, Owner may, at its option: (a) assume
title to the same or any part of the same, as of the date of default and credit
the net reasonable value thereof as of the date of taking against the total
completion cost, damages, and expenses; or (b) return the same to the
Construction Manager and credit the net reasonable value of the use thereof by
Owner against the said total completion cost, damages and expenses. As used in
the preceding sentences, the phrase "net reasonable value" of any items shall
mean the reasonable value after deducting all amounts which have been paid to
the Construction Manager on account thereof.
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(4) In the event that Owner does not terminate this Contract despite the
occurrence of an event of default, such assent shall not be construed as a
waiver of the Construction Manager's obligation to reimburse Owner for any
costs, damages, or expenses that the Owner is entitled to otherwise recover
under this Contract; and all such costs, damages, and expenses shall be paid or
reimbursed to Owner (to the extent that they exceed the unpaid balance of the
applicable GMP or Separate GMP) within fourteen (14) days of Owner's demand
therefor.
(5) If, after notice of termination of the Construction Manager's right to
proceed pursuant to Paragraph 19A(2), it is determined for any reason that the
Construction Manager was not in default, or that its delays are excusable, or
that Owner is not entitled to the remedies against the Construction Manager
provided therein or that Owner failed to follow the provisions of Paragraph 19A,
then Construction Manager's termination shall be deemed a Termination for
Convenience pursuant to Paragraph 19B below and Construction Manager's remedies
against Owner shall be the same as and limited to those afforded the
Construction Manager under Paragraph 19B.
B. Termination for Convenience. Owner shall have the right to terminate
this Contract, in whole or in part, without cause upon seven (7) days written
notice to the Construction Manager. In the event of such termination for
convenience, the Construction Manager's rights against Owner shall be limited to
payment of that portion of the Contract Sum earned through the date of
termination, together with any retainage withheld with respect to properly
completed Work, the portion of Construction Manager's Fixed General Conditions
that is allocable to the period preceding termination, and the reasonable and
actual costs of cleanup, removal of debris, removal of equipment, removal of
Construction Manager's trailers and machinery, and assignment to Owner of leases
for Owner's trailers used at the Site, less any amounts claimed for, or required
to correct, improperly performed or defective Work, and less any unpaid and
lienable claims of Subcontractors, Sub-subcontractors or material men. . Upon
the effective date of termination, Owner may request that Construction Manager
assign its interest in certain or all subcontracts and purchase orders pursuant
to Paragraphs 21B and 21C hereof or Owner may make independent arrangements for
the completion of the Work. Construction Manager shall, at Owner's election,
either: (i) so assign to the Owner all subcontracts and contracts for materials
ordered prior to the date of termination, or (ii) cancel such contracts (in
which case Owner shall also pay all cancellation charges for such contracts).
The Construction Manager shall not be entitled to any other or further relief
against Owner, including, but not limited to, anticipated profit on Work not
performed by Construction Manager or any Subcontractor or Supplier at any tier
as a result of any such termination by the Owner.
C. Construction Manager's Right to Terminate. This Contract can only be
terminated by the Construction Manager pursuant to the terms of Paragraphs
19C(1) and (2).
(1) If, after the date of commencement, the Work is stopped for a period of
more than six (6) months under an order of any court or other public authority
having jurisdiction, or as a result of an act of government, such as a
declaration of a national emergency making materials unavailable, through no act
or fault of the Construction Manager or a Subcontractor, Sub-subcontractor or
their agents or employees or any other person performing any of the Work under a
contract with the Construction Manager, or if the Work is wholly or
substantially suspended for a period of more than six(6) months for such reason,
the Construction Manager may terminate this Contract and such termination shall
be effective forty-eight (48) hours after Owner receives written notice thereof.
(2) This Contract may also be terminated by the Construction Manager upon
the material default by Owner under this Agreement, provided that Owner's
default is through no fault of Construction Manager. Construction Manager shall
first give written notice specifying the nature and extent of each material
default. Such default(s) shall cease to be cause for termination if: (i) Owner
cures such default(s) within seven (7) days after receipt of Construction
Manager's notice; or (ii) such default(s) is not susceptible of being cured
within seven (7) days, Owner commences cure within such seven (7) day period and
diligently continues to complete such cure as soon as possible, but in no event
later than ninety (90) days after the receipt of such notice; or (iii) such
alleged default involves a good faith dispute between Owner and Construction
Manager over the Contract Sum, any payment request, or time for performance of
the Contract (in any such case, Construction Manager's sole remedy shall be to
seek judicial determination and enforcement of its claim(s) but may not
terminate this Contract). Any default that is capable of cure by the expenditure
of money shall be deemed susceptible of cure within seven (7) days.
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(3) Upon the effective date of termination pursuant to Paragraphs 19C(1)
and (2), the provisions of Paragraph 19B shall apply and govern the obligations
of the parties.
20. LIENS
A. The Construction Manager shall comply with the applicable laws and
regulations of the state in which the Project is located regarding the liability
of Owner for mechanics' liens. The Construction Manager shall take all
precautions reasonably necessary to ensure that the liability of Owner for
mechanics' liens and other similar liens is limited to the greatest extent
reasonably possible under such laws and regulations. In the event that any lien
is filed against the Project, which the Construction Manager is responsible to
remove pursuant to the provisions of this Contract, Construction Manager agrees
to take all steps necessary and proper to release and discharge such lien within
seven (7) days of the filing of any such lien.
B. If the aforementioned steps are not taken by the Construction Manager,
the Construction Manager agrees to obtain a bond sufficient to release the lien
and take all necessary legal action to defend Owner against any legal action
related to such lien. In addition, Construction Manager shall reimburse Owner,
on demand, for all monies paid by Owner in the releasing, satisfying and
discharging of such lien, including reasonable attorneys' fees. Until such lien
is discharged, Owner may withhold payment to Construction Manager in such
amount, as Owner reasonably deems necessary to protect Owner against any costs
or damages they may incur in releasing, satisfying or discharging such liens.
C. Final Payment shall become due only after the Construction Manager
delivers to Owner a full and final release of all liens and claims arising out
of the Contract, and an affidavit that the releases include all the labor and
materials for which a lien could be filed.
21. ASSIGNMENT AND THIRD PARTY BENEFICIARY
A. Owner and Construction Manager each binds itself, and its partners,
successors, executors and administrators and assigns to the other party of this
Contract and to the partners, successors, executors, administrators and assigns
to such other party, with respect to all obligations contained in the Contract
Documents. Owner may assign its rights and obligations under this Contract
(including a collateral assignment thereof) at any time without the consent of
the Construction Manager, to any successor owner of the Project and to any
lender providing financing for the Project. Provided such entity agrees to
accept the terms and conditions of this Contract without modification based on
the assignment, the Owner shall be released from liability under the Contract
and the Construction Manager agrees to execute any documentation with respect to
such assignment promptly upon Owner's request. However, the Construction Manager
shall not assign its obligations under this Contract or sublet as a whole
without the prior written consent of Owner, nor shall the Construction Manager
assign any monies due to it hereunder, without the prior written consent of
Owner. All assignments without Owner's prior written consent are void.
B. The Construction Manager agrees that effective upon, and if and only in
the event that this Contract is terminated pursuant to paragraph 19A or 19B
above, each subcontract and all purchase orders executed by the Construction
Manager for the Work, and all rights of the Construction Manager thereunder,
shall be assignable to Owner, or to another contractor designated by Owner, at
Owner's option, without consent of the Subcontractor or Supplier; that upon such
an assignment becoming effective such Subcontractor or Supplier will be bound to
Owner or such contractor designated by Owner, as fully and in the same manner as
such Subcontractor is bound to the Construction Manager under such subcontract
or purchase order; and that upon such assignment becoming effective all sureties
of the obligations of such Subcontractor shall be bound to Owner or such
contractor designated by Owner, as fully and in the same manner as such sureties
are bound to the Construction Manager. The Construction Manager further agrees
that, to the extent permitted by applicable law, all permits and licenses
obtained by the Construction Manager for the Project and all rights of the
Construction Manager thereunder shall be assignable to Owner or to another
contractor designated by Owner, at Owner's option, without the consent of the
issuing entity.
C. Effective as of any termination of this Contract, the Construction
Manager hereby assigns to Owner all of the Construction Manager's interest in
those subcontracts and purchase orders which were entered into by the
Construction Manager prior to termination and which Owner specifically requests
by written notice. Pursuant to
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Xxxxxxxxx 00X above, all subcontracts and purchase orders shall provide that
they are freely assignable by the Construction Manager to Owner and its assigns.
Such assignments by the Construction Manager shall not in any way be construed
as an assumption by Owner of the Construction Manager's then outstanding
obligations to its Subcontractors and Suppliers. Owner shall be at liberty to
negotiate with and engage (for itself, or for any other contractors that they
engage to replace the Construction Manager) any Subcontractors, Suppliers or
others with whom the Construction Manager dealt prior to termination.
D. Except for the provisions of Paragraph 22 which benefit all intended
indemnitees, no provisions of the Contract Documents shall in any way inure to
the benefit of any third person (including the public at large) so as to
constitute such person a third party beneficiary of this Contract or of any one
or more of the terms and conditions of the Contract Documents or otherwise give
rise to any cause of action in any person not a party hereto. The rights of
Owner set forth in this Paragraph 21 are intended for the protection of Owner
only. No rights of Owner specified in this Paragraph 21, nor any action taken by
Owner pursuant to this Paragraph, shall be construed as acceptance by Owner of
any delegation of the duties owed by the Construction Manager to any third
party.
22. INDEMNIFICATION
A. To the fullest extent permitted by law, the Construction Manager shall
indemnify, defend and hold harmless the Architect, the Owner, the Owner's
lender, The Xxxxxxxx Companies, any governmental entity whose permit, approval
or agreement so requires, and their respective related companies and each of
their respective officers, directors and employees from and against all claims,
damages, losses and expenses, including, but not limited to attorneys' fees,
arising out of or resulting from the performance of the Work, to the extent that
any such claim, damage, loss or expense: (i) is attributable to personal injury,
bodily injury, sickness, disease or death, or to injury to or destruction of
tangible property including the loss of use resulting therefrom; and (ii) is
caused by any act or failure to act of the Construction Manager, any of its
Subcontractors, Sub-subcontractors or Suppliers, anyone directly or indirectly
employed by any of them or anyone for whose acts any of them may be liable,
regardless of whether or not such claim, damage, loss or expense is caused in
part by any party indemnified hereunder. The phrase "tangible property" as used
herein includes without limitation damage to the property of the Construction
Manager, all parties indemnified herein, or of any third party. The
indemnification obligations set forth in this paragraph shall not apply to the
extent that any of the damages or losses otherwise covered by the
indemnification obligations set forth herein are paid by the OCIP or any other
property insurance maintained by the Owner.
B. In any and all claims against Architect, Owner or their related
companies by any employee of the Construction Manager, any of its Subcontractors
or Suppliers, anyone directly or indirectly employed by any of them or anyone
for whose acts any of them may be liable, the indemnification obligation under
this Paragraph 22 shall not be limited in any way by any limitation on the
amount or type of damages, compensation or benefits payable by or for the
Construction Manager or any of its Subcontractors or Suppliers under workers'
compensation acts, disability benefit acts or other employee benefit acts.
C. The Construction Manager acknowledges the receipt and sufficiency of
specific, valuable consideration and other benefits accruing to the Construction
Manager in exchange for the Construction Manager's indemnity obligations
indemnified under this Contract. The specific consideration includes, but is not
limited to, the first five percent (5%) of each payment made to the Construction
Manager under this Contract.
D. The indemnifications contained in this Paragraph 22 shall apply
regardless of whether the liabilities sustained were the result of settlements
or contractual or other voluntary forms of dispute resolution.
E. The terms "Architect" and "Owner" and each of the other entities that
are listed as indemnitees in this Paragraph 22 include their respective
officers, directors, agents, servants, employees, successors and assigns. The
term "related companies" as used in this Paragraph 22 means the respective
subsidiaries and affiliates and any entities in which any of such entities has
controlling or managerial interests or any entities in which any of them has
ownership interests, and which are in existence at any time between the date of
the Contract and the Construction Manager's acceptance of Final Payment. Such
entities include, but are not limited to, corporations, limited liability
companies, partnerships, and joint ventures.
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23. INSURANCE
A. Owner Controlled Insurance Program.
(1) The Owner has elected to implement an Owner Controlled Insurance
Program (OCIP) that will provide Workers' Compensation, Employer's Liability,
General Liability, and Excess Liability for all enrolled Subcontractors of every
tier providing direct labor. The Owner agrees to pay all premiums associated
with the OCIP including deductibles or self-insured retention unless otherwise
stated in the Contract Documents. Eligible Subcontractors include all
Subcontractors providing direct labor (see definition of ineligible
Subcontractors below). Temporary labor services and leasing companies are to be
exempt from the program.
(2) The following types of Subcontractors and Sub-subcontractors
(hereinafter called ineligible Subcontractors) shall not be eligible for
coverage in the OCIP: Consultants, Suppliers, vendors, materials dealers, guard
services, janitorial services, truckers (including trucking where delivery is
the only scope work performed), and other Subcontractors as determined by the
Owner. Ineligible Subcontractors shall be required to maintain their own
insurance of the types and with the limits as set forth in Paragraph 23, at
their own expense, and shall promptly furnish the Owner, or its designated
representative, certificates of insurance giving evidence that all required
insurance is in force.
(3) Construction Manager shall identify all costs associated with the
cost of insurance for all Work, including but not limited to insurance premiums,
expected losses within any retention or deductible program, overhead and profit,
using Form 2 (Insurance Cost Identification Worksheet). By completing and
submitting this insurance cost information, including supporting documents to
the Insurance Administrator, Construction Manager warrants that all cost for
insurance as described in this paragraph have been correctly identified. For the
Construction Manager and all cost plus Subcontractors and Sub-subcontractors and
for any Work identified as "cost plus", xxxxxxxx to the Owner shall not include
the cost of any insurance coverages covered by the OCIP Program. Coverage and
limit requirements are:
(1) Workers' Compensation and Employer's Liability Insurance:
STATUTORY BENEFITS as provided by state statute; and EMPLOYER'S
LIABILITY LIMITS:
(a) $1,000,000 Bodily Injury each Accident
(b) $1,000,000 Bodily Injury by Disease - Policy Limit
(c) $1,000,000 Bodily Injury by Disease - Each Employee
(2) Commercial or General Liability Insurance:
(a) $2,000,000 Bodily Injury & Property Damage for Each Occurrence
(b) $2,000,000 Products/Completed Operations Aggregate
(c) $4,000,000 General Aggregate
(d) $1,000,000 Personal & Advertising Injury
(e) $50,000 Fire Damage
(f) $5,000 Medical Expense
Coverages should include but not limited to the following
supplementary coverages:
(i) Contractual Liability to cover liability assumed under this
agreement,
(ii) Product and Completed Operations Liability Insurance,
(iii) Broad Form Property Damage Liability Insurance,
(iv) Explosion, collapse and underground hazards (deletion of the
X, C, U exclusions) if such exposure exist, and
(v) Independent Subcontractors.
(vi) Such policy must be issued upon an "occurrence" basis, as
distinguished from a "claims made" basis.
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(3) Excess (Umbrella) Insurance:
(a) Limits of Liability:
(i) $10,000,000 Per Occurrence
(ii) $10,000,000 General Aggregate
(b) Coverages and Terms:
(i) Occurrence Policies
(ii) Excess of General Liability
(iii) Excess of Employer's Liability
(iv) Excess of Completed Operations
(4) Construction Manager agrees to require all eligible Subcontractors
of any tier to identify all costs associated with the cost of insurance for all
subcontracted Work, including but not limited to insurance premiums, expected
losses within any retention or deductible program, overhead and profit, using
the Owner Form 2 (Insurance Cost Identification Worksheet). By completing and
submitting this insurance cost information, including supporting documents to
the Owner, Construction Manager and its Subcontractor(s) agree that the all cost
for Subcontractor insurance as described in this paragraph have been correctly
identified. For the purpose of calculating Subcontractor insurance deductions,
the Construction Manager shall cause the Subcontractor to base its deduction on
the following limits:
(1) Workers' Compensation: Statutory Limits/Employer's Liability:
(a) $500,000 Bodily Injury each Accident
(b) $500,000 Bodily Injury by Disease - Policy Limit
(c) $500,000 Bodily Injury by Disease - Each Employee
(2) Commercial General Liability Insurance:
(a) $2,000,000 Bodily Injury & Property Damage for Each Occurrence
(b) $2,000,000 Products/Completed Operations Aggregate
(c) $2,000,000 General Aggregate
(d) $1,000,000 Personal & Advertising Injury
It is understood and agreed, insurance cost identified on Form 2, is an initial
estimate only. The final insurance cost will be subject to review and audit of
actual insurance policy(ies) rate information, actual payrolls and revenues for
the initial award plus any additive amendments. The Owner contract award will be
based on the total estimated Cost of the Work including insurance costs. An
initial deductive change order will be processed to transfer the insurance cost
into the OCIP. The Owner shall have the right to recover all costs for insurance
that are in addition to those initially identified by Construction Manager in
the initial deductive change order. The Owner shall have the right to recover
these additional costs through deductive change orders.
Subcontractors of every tier shall complete and submit Form 2 to the Owner's
Insurance Administrator, and shall also provide a copy of the declaration
page(s) and premium rate page(s) for each policy to the Owner's Insurance
Administrator. Construction Manager shall provide all necessary information for
the Owner to determine the accuracy of each Construction Manager's cost of
insurance as identified on Form 2.
(5) Construction Manager shall price, and shall require that all
enrolled Subcontractors price change order pricing equal to or greater than ten
thousand dollars ($10,000) to include the cost to provide insurance as specified
in Paragraph 23A(4), and shall identify the amount of insurance contained in the
change order proposal using Form 3. Construction Manager's price shall be
adjusted by removing the cost of insurance as identified on Form 3. The Owner
shall have the right to recover these additional costs through deductive change
orders
(6) The Construction Manager shall require each of its Subcontractors
of all tiers to identify the cost for
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the coverage associated with the Work performed as outlined in this agreement
using the methods and documents described herein.
The Construction Manager shall include all of the provisions of this agreement
in every subcontract so that such provisions will be binding upon Subcontractors
of all tiers.
(7) For insurance purposes, the Subcontractors of every tier agree,
and shall require all tiers of Subcontractors to agree, to keep and maintain
accurate and certified record of its payroll for operation at the Site.
Construction Manager further agrees, and will require all tiers of
Subcontractors to agree, to furnish to the Owner's Insurance Administrator, full
and accurate payroll data and information in accordance with the requirements of
the OCIP Project Insurance Manual, incorporated herein by this reference. All
Subcontractors shall permit the Owner or its representative to examine and/or
audit its books and records. Construction Manager shall also provide any
additional information to the Owner or its appointed representatives as may be
required. The Owner shall have the right to adjust the Contract Sum to reflect
the cost of the Construction Manager's insurance costs had the Owner not
implemented an OCIP.
(8) The Owner, at its sole expense, has implemented an Owner
Controlled Insurance Program (OCIP) to furnish certain insurance coverage with
respects to on-site activities. The OCIP Manual is appended as Exhibit 12 to
these General Conditions and is incorporated herein by reference. The OCIP will
be for the benefit of the Owner, Construction Manager and enrolled
Subcontractors of all tiers (unless specifically excluded) who have on-site
employees. Such coverage applies only to Work performed under this Contract at
the Site. Enrolled contractors must provide their own insurance for off-site
activities.
The OCIP policies are available for review by the Construction Manager upon
request to the Owner. The terms of such policies or programs, as such policies
or programs may be from time to time amended, are incorporated herein by
reference. The Construction Manager hereby agrees to be bound by the terms of
coverage as contained in such insurance policies and/or self-insurance programs.
Through a combination of insured and self-insured insurance programs the Owner,
at its sole expense, will provide and maintain in force the types of insurance
listed in subparagraphs (1) through (3) below as a part of the OCIP for all
approved Subcontractors. Contractors enrolled in the OCIP agree that the
insurance company policy limits of liability, coverage terms and conditions
shall determine the scope of coverage provided by the OCIP. The purpose of this
section is to provide a general understanding of the coverage provided by the
OCIP.
(1) Workers' Compensation and Employer's Liability Insurance will be
provided in accordance with applicable State law. Limits of
Liability and coverages will be as follows:
(a) Workers' Compensation - Applicable State Statutory Benefits
(b) Employer's Liability
(i) $1,000,000 Bodily Injury each Accident
(ii) $1,000,000 Bodily Injury by Disease - Policy Limit
(iii) $1,000,000 Bodily Injury by Disease - Each Employee
(2) Commercial General Liability Insurance will be provided on an
"occurrence" form under a master liability policy with the
following Limits of Liability, Coverages, and Terms:
(a) Limit of Liability:
(i) $2,000,000 Per any occurrence
(ii) $4,000,000 General Aggregate
(iii) $6,000,000 Completed Operations Aggregate
(b) Coverage and Terms:
(i) Occurrence Basis;
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(ii) Products;
(iii) Contractual Liability specifically designating the
indemnity provision of this agreement as an insured
contract;
(iv) Completed Operations (Five-Year Term);
(v) Independent Construction Manager's Liability;
(vi) Personal Injury;
(vii) Explosion, Collapse, and Underground (X, C, U)
exclusion deleted; and
(viii) Designated Premises Only.
(3) Excess Liability Insurance will be provided under a master
liability policy with Limits of Liability, Coverages, and Terms
as follows:
(a) Limits of Liability:
(i) $100,000,000 Any one occurrence and general aggregate
annually; and
(ii) $100,000,000 Annual Aggregate Products and completed
Operations.
(b) Coverages and Terms:
(i) Excess of General Liability
(ii) Excess of Employer's Liability
(iii) Completed Operations (Five Year Term)
(9) The Owner provided insurance coverage outlined above shall be
either written by insurance companies or shall be self-insured. The Owner,
through the Owner's Insurance Administrator, shall provide all Construction
Manager(s) with appropriate certificates of insurance or self-insurance
evidencing the coverage outlined above.
(10) The Owner reserves the right to terminate or to modify the OCIP
or any portion thereof. To exercise this right, the Owner shall provide sixty
(60) days advance written notice of termination or material modification to all
Construction Manager(s) covered by the OCIP. The Construction Manager shall
promptly obtain appropriate replacement insurance coverage acceptable to the
Owner. The cost of such replacement insurance will be reimbursed by the Owner.
Written evidence of such insurance shall be provided to the Owner prior to the
effective date of the termination or modification of the OCIP.
(11) The Construction Manager is required to cooperate with the Owner
and the Owner's Insurance Administrator, with regard to the administration and
operation of the OCIP. The Construction Manager's responsibilities shall
include, but not be limited to:
(1) Compliance with the OCIP Insurance Manual outlining the administrative
procedures required;
(2) Provision of necessary contract, operations and insurance information;
(3) Immediately notifying the Insurance Administrator of all Subcontractors
upon award on the Owner Form-1. Furnish all new Subcontractors the OCIP
Insurance Manual;
(4) Maintenance and provision of monthly certified payroll records and other
records as necessary for premium computation;
(5) Cooperation with any insurance company or the Insurance Administrator with
respect to requests for claims, payroll or other information required under
the program;
(6) Immediately notifying the Insurance Administrator that any Construction
Manager-Provided Coverage has been canceled, materially changed, or not
been renewed; and,
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(7) Complete the following administrative forms within the time frames
specified:
(a) Form 1 -- Upon execution of the (Subcontractor) contract;
(b) Form 2 -- Upon execution of a (Subcontractor) contract;
(c) Form 5 -- Monthly Payroll Record--Within 10 days after the last day of
each month; and
(d) Notice of Completion--Upon completion of all Work being performed
under the contract.
(12) The Owner will be responsible for the payment of all premiums
associated solely with the OCIP and will be the sole recipient of any
dividend(s) and/or return premium(s) generated by the OCIP. In consideration of
the Owner provision of said coverage the Construction Manager and all
Subcontractors of any tier shall agree to:
(1) Identify all applicable insurance costs in their contract price, and
cooperate with the Insurance Administrator in the confirmation of the
insurance cost.
(2) Irrevocably assign to and for the benefit of the Owner, all return
premiums, premium refunds, premium discounts, dividends, retentions,
credits, and any other monies due the Owner in connection with the
insurance, which Owner herein agrees to provide.
(13) For any Work under this Contract, and until completion and final
acceptance of the Work, all ineligible Subcontractors/Subcontractors as defined
in Paragraph 23A(2) shall provide certificates of insurance giving evidence that
the following coverages are in force. The Site should be shown on the
certificate and the Owner, the Owner's lender, Construction Manager, Architect,
The Xxxxxxxx Companies, all governmental authorities whose permits, approvals or
agreements so require, and their respective related parties (as defined in
Paragraph 22) shall be endorsed as Additional Insureds on the Commercial General
Liability Policy and Automobile Policy and that such coverages are primary to
any policies of insurance provided by such persons or Construction Manager.
For any work under this contract, and until completion and final acceptance of
the Work, all eligible Subcontractors, at their own expense, shall promptly
furnish to the Insurance Administrator, certificates of insurance giving
evidence that the following coverages are in force:
(1) Automobile Liability Insurance:
Comprehensive Automobile Liability Insurance to cover all vehicles owned
by, hired by or used, with minimum combined single limit that shall not be
less than $1,000,000 each accident.
(2) Workers' Compensation and Employer's Liability Insurance (Off-site
activities):
Statutory Limits with All States Endorsement and minimum Employer's
Liability Limits will be provided as follows:
(a) $500,000 Bodily Injury with Accident - Each Accident;
(b) $500,000 Bodily Injury by Disease - Policy Limit
(c) $500,000 Bodily Injury by Disease - Each Employee; and
(d) The policy will be endorsed to exclude the Site.
(3) Commercial General Liability Insurance (Off-site activities):
(a) $1,000,000 Bodily Injury & Property Damage for Each Occurrence
(b) $1,000,000 Products/Completed Operations Aggregate
(c) $2,000,000 General Aggregate
(d) $1,000,000 Personal & Advertising Injury
(e) $50,000 Fire Damage
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(f) $5,000 Medical Expense
(g) Shall include the following:
(i) Occurrence Basis;
(ii) Premises operations;
(iii) Contractual Liability;
(iv) Products/Completed Operations;
(v) Broad Form Property Damage; and
(vi) Independent Subcontractors.
(vii) Such policy must be issued upon an "occurrence" basis, as
distinguished from a "claims made" basis.
(h) The policy will be endorsed to exclude the Site.
(4) Excess (Umbrella) Insurance (off-site activities):
(a) Limits of Liability:
Minimum Limit Required
Contract Sum (per occurrence/aggregate)
----------------------- --------------------------
Up to $2,499,999 $1,000,000
$2,500,000 - $4,99,999 $2,000,000
$5,000,000 - $7,499,999 $3,000,000
$7,500,000 and over $4,000,000
(b) Coverages and Terms: Follow form of Primary Policies
If the Construction Manager chooses to have such a policy endorsed to
recognize the Site during the construction period, coverage should be
Excess and/or DIC of the OCIP. This shall not reduce the cost
identification requirement in this Paragraph 23.
(5) Subcontractor Insurance Limits:
For the purpose of calculating Subcontractor insurance deductions, the
Construction Manager shall cause the Subcontractor to base its deduction on
the following limits:
Workers' Compensation (Off-Site): Statutory Limits
Employer's Liability (Off-Site):
(a) $100,000 Bodily Injury each Accident
(b) $100,000 Bodily Injury by Disease - Policy Limit
(c) $100,000 Bodily Injury by Disease - Each Employee
Commercial General Liability Insurance (Off-Site):
(a) $500,000 Bodily Injury & Property Damage for Each Occurrence
(b) $500,000 Products/Completed Operations Aggregate
(c) $500,000 General Aggregate
(d) $500,000 Personal & Advertising Injury
Comprehensive Automobile Liability Insurance (On-Site and Off-Site):
(a) $250,000 Per Person/Accident
All insurance policies shall be provided by a company or companies with a
rating of not less than B+ in the last available Best's Rating Guide. All
such policies shall include clauses whereby each underwriter agrees to
waive its rights of subrogation against the Owner. The Commercial General
Liability, Automobile Liability and Umbrella Liability policies shall be
endorsed to add the required persons and Construction Manager as an
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additional insured. The limits of liability shown for each type of
insurance coverage to be provided pursuant hereto shall not be deemed to
constitute a limitation of the Construction Manager's liability for claims
hereunder or otherwise. Notwithstanding anything herein to the contrary,
the Owner may to the fullest extent permitted by applicable law, accept
alternate or different coverage for the insurance specified herein upon
receipt from a licensed insurance agent or company acceptable to the Owner
of a written evaluation of the proposed alternate coverage in form
acceptable to the Owner confirming that such alternate coverage provides
comparable or greater protection to the Owner as the coverage specified.
Should the Construction Manager fail to purchase, or fail to continue in
force until completion of the Work, insurance in the amounts indicated
above, the Owner may purchase such insurance and the cost thereof shall be
borne by the Construction Manager, and may be deducted from any amounts
owed by the Owner to the Construction Manager.
(14) Certificates of Insurance acceptable to the Owner shall be filed with
the Owner as soon as practicable after award of the contract to Construction
Manager and prior to commencement of the Work. All required insurance shall be
maintained without interruption from the date of commencement of the Work under
the Contract until the date of the final payment. These certificates and the
insurance policies required by this Paragraph 23 shall contain a provision that
coverage afforded under the policies will not be concealed, materially modified,
or allowed to expire until at least thirty (30) days' prior written notice has
been given to the Owner to be sent to the Owner's Insurance Administrator as
described in the OCIP Project Insurance Manual. The provisions of this
subparagraph shall apply to all policies of insurance required to be maintained
by the Construction Manager pursuant to the contract documents.
(15) Any type of insurance or any increase of limits of liability not
described above which a Construction Manager requires for its own protection or
on account of any statute shall be its own responsibility and its own expense.
(16) Upon execution of the subcontract, the Construction Manager will
immediately report all new subcontracts to the Owner's Insurance Administrator
for enrollment in the OCIP. The Construction Manager shall incorporate all the
provisions of this agreement in any Subcontractor agreement and shall cause its
Subcontractors of all tiers to cooperate fully with the Owner, the Owner's
Insurance Administrator and insurance companies, in the administration of the
OCIP. The Construction Manager agrees to cooperate in the safety and accident
prevention program and claim handling procedures as established by the Owner. In
accordance with this paragraph Construction Manager shall not permit any
Subcontractor of any tier to enter the Site prior to enrollment in the Owner's
Owner Controlled Insurance Program (OCIP).
(17) Construction Manager and Owner waive all rights of subrogation and
recovery against the other, their Insurance Administrators, and Subcontractors
of all tiers to the extent of any loss or damage, which is insured under the
OCIP. Notwithstanding the foregoing and not by way of limitation of the same,
Construction Manager waives its rights of subrogation and recovery for damage to
any property or equipment against the Owner, Insurance Administrator and
Subcontractors of all tiers. Each Subcontractor shall require all of its
Subcontractors to similarly waive their rights of subrogation and recovery in
each of their respective construction contracts with respect to their work.
(18) The carrying of the above-described insurance shall in no way be
interpreted as relieving the Construction Manager of any other responsibility or
liability under this Contract or any applicable law, statute, regulation or
order.
B. Property Insurance.
(1) The Owner shall purchase and maintain, property insurance in the amount
of the initial Contract Sum as well as subsequent modifications thereto for the
entire Work at the Site on a replacement cost basis without voluntary
deductibles. Such property insurance shall be maintained, unless otherwise
provided in the Contract Documents or otherwise agreed in writing by all persons
and entities who are beneficiaries of such insurance, until final payment has
been made or until no person or entity other than the Owner has an insurable
interest in the property required by this Paragraph 23B to be covered, whichever
is earlier. This insurance shall include interests of the Owner, the
Construction Manager, Subcontractors and Sub-Subcontractors in the Work.
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(2) Property insurance shall be on an "all-risk" policy form and shall
insure against the perils of fire and extended coverage and physical loss or
damage including, without duplication of coverage, theft, vandalism, malicious
mischief, collapse, falsework, temporary buildings and debris removal including
demolition occasioned by enforcement of any applicable legal requirements, and
shall cover reasonable compensation for Architect's services and expenses
required as a result of such insured loss. Coverage for other perils shall not
be required unless otherwise provided in the Contract Documents.
(3) This insurance policy has a deductible, and the Construction Manager
will be responsible for the first Twenty-five Thousand Dollars ($25,000.00) of
any loss against the policy caused by the Construction Manager or its
Subcontractor of any tier. All deductibles paid by Construction Manager are to
be included in the Cost of the Work. The Owner will cause its "All Risk"
Builder's Risk and/or Property insurance carrier to waive insurer's right of
subrogation in favor of Construction Manager.
(4) Unless otherwise provided in the Contract Documents, this property
insurance shall cover portions of the Work stored off the Site after written
approval of the Owner at the value established in the approval, and also
portions of the Work in transit may be covered if previously approved by Owner.
(5) The insurance required by this Paragraph is not intended to cover
machinery, tools or equipment owned or rented by the Construction Manager, which
are utilized in the performance of the Work but not incorporated into the
permanent improvements. The Construction Manager shall, at the Construction
Manager's own expense, provide insurance coverage for owned or rented machinery,
tools or equipment. Such coverage shall be written on a policy form at least
equivalent to that provided by a "Construction Manager's Equipment Floater" as
customarily defined within the insurance industry. Construction Manager also
agrees to notify any Subcontractors or Sub-subcontractors of their obligation to
insure any machinery, tools and equipment used by Subcontractors or
Sub-subcontractors in the performance of the Work.
(6) The Owner shall purchase and maintain boiler and machinery insurance
required by the Contract Documents or by law, which shall specifically cover
such insured objects during installation and until final acceptance by the
Owner; this insurance shall include interests of the Owner, Program Manager,
Construction Manager, Subcontractors and Sub-Subcontractors in the Work, and the
Owner and Construction Manager shall be named insureds.
(7) The Owner, shall purchase and maintain such insurance as will insure
the Owner against loss of use of the Owner's property due to fire or other
hazards, however caused. The Owner waives all rights of action against the
Construction Manager for loss of use of the Owner's property, including
consequential losses due to fire or other hazards, however caused.
(8) If the Construction Manager requests in writing that insurance for
risks other than those described herein or for other special hazards be included
in the property insurance policy, the Owner shall, if possible, include such
insurance, and the cost thereof shall be charged to the Construction Manager by
appropriate Change Order.
(9) Before an exposure to loss may occur, the Owner shall file with the
Construction Manager a Certificate of Insurance that includes insurance
coverage's required by this Paragraph. Each policy shall contain all generally
applicable conditions, definitions, exclusions and endorsements related to this
Project. Each policy shall contain a provision that the policy will not be
canceled or allowed to expire until at least 30 days' prior written notice has
been given to the Construction Manager.
(10) A loss insured under Owner's property insurance shall be adjusted by
the Owner as fiduciary and made payable to the Owner as fiduciary for the
insureds, as their interests may appear, subject to requirements of any
applicable mortgagee clause. The Construction Manager shall pay Subcontractors
their just shares of insurance proceeds received by the Construction Manager,
and by appropriate agreements, written where legally required for validity,
shall require Subcontractors to make payments to their Sub-Subcontractors in
similar manner.
(13) The Owner as fiduciary shall have power to adjust and settle a loss
with insurers.
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(14) It is understood and agreed that Owner is bearing all risk of loss to
the property for which the Owner has an insurable/financial interest during
construction, and in the event of loss during construction Owner agrees to look
solely to the proceeds of the Builder's Risk Insurance which Owner has agreed to
furnish, the only exception being losses which occur as a result of Construction
Manager's negligence or willful acts, and then, only to the extent not covered
by insurance.
X. Xxxxx.
(1) The Owner has the option to request the Construction Manager to furnish
a performance and payment bond for the Project or at the Owner's option the
Owner will initiate a Subguard Insurance Program. The Subguard Program adopted
by the Owner and appended hereto as Exhibit 9 is a Construction
Manager/Sucontractor/vendor default insurance program and will lessen the
requirement to furnish performance and payment bonds. It is the Owner's desire
to enroll the Construction Manager, its Subcontractors or all tiers and
Suppliers in this program. At the Owner's sole discretion, the Owner may request
that certain Subcontractors provide a payment and performance bond or insurance
in lieu of enrollment in the Subguard Insurance Program or if any entity cannot
fulfill the pre-qualification criteria. The Owner will adjust the GMP, add or
deduct, if the bonds or insurance are requested.
(2) The Construction Manager must notify the Owner monthly of
Subcontractors and Suppliers which are in default, or who may be declared in
default in the near future based on current performance deficiencies. The
Construction Manager will provide the following information related to each such
Subcontractor or Supplier: Name, Scope of Work, Contract Value, Nature of
Default, Percentage of Completion, Estimated Cost to Complete if Defaulted and
Amount of Unpaid Contract Value. Construction Manager shall also specify any
potential deficiencies in the Subcontractors' and Suppliers' work which will
require correction or replacement.
(3) In the event of a Subcontractor or Supplier default, Construction
Manager agrees to assist the Owner in mitigating the loss to the fullest extent
possible. This includes, but is not limited to: (1) adequate supervision and
work review, (2) proper documentation of performance, payment and schedule
issues, (3) adherence to contract remedies in order to protect rights of
recovery from defaulting party and avoid counterclaim for wrongful termination,
(4) manage the balance of the Work in order to minimize the loss associated with
the defaulting subcontract or Supplier, and (5) to assist the Owner in selecting
the most cost efficient alternative to complete the affected Work.
(4) Subcontractors and Suppliers (with expected contract values in excess
of $50,000.00) must be pre-qualified by the Construction Manager based upon the
criteria established by the Construction Manager and approved by the Owner. In
the event a Subcontractor or Supplier the Construction Manager selects to use
does not meet these criteria, the Construction Manager may submit to the Owner
in writing a variation report which outlines why this particular entity should
be accepted. Only if the Owner concurs, the Subcontractor or Supplier will be
considered to be qualified. If the Construction Manager selects a Subcontractor
or Supplier that does not meet the criteria and does not notify the Owner or get
approval, the Construction Manager will bear the costs and the risk of loss.
(5) If the Construction Manager incurs a loss as a result of Subcontractor
or Supplier default, the Construction Manager must complete the Claim of Loss
form as approved by the Owner. Once the Program Manager and Owner have reviewed
and verified the loss, the Owner will reimburse the Construction Manager for the
amount of the loss.
(6) Construction Manager will use all reasonable efforts to assist Owner in
the management and mitigation of all claims and potential claims which may arise
out of or occur as a result of any Subcontractor's failure to perform in
accordance with its scope of work set forth in its subcontract and Contract
Documents.
(7) At the Owner's request, the Construction Manager will submit a proposal
for providing a Subcontractor Default Insurance Program in lieu of traditional
Performance and Payment Bonds.
D. Relation to Indemnity.
The Construction Manager's insurance obligations contained in this
Paragraph 23 are separate from and in addition to the Construction Manager's
indemnification obligations contained in Paragraph 22 of these General
Conditions.
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24. SEPARATE CONTRACTS AND MUTUAL RESPONSIBILITY OF SUBCONTRACTORS
A. Construction of other phases of the overall Project may be conducted
concurrently with the performance of this Contract. It is specifically
understood that other work may be scheduled at the same time and in the same
areas as the Construction Manager's Work. The Construction Manager shall
coordinate with the Owner, with respect to the installation of any furniture,
furnishings, fixtures and equipment to be purchased by Owner. Toward this end,
the Construction Manager agrees to provide access to the Project for the
delivery, setting in place and installation of the furniture, furnishings,
fixtures and equipment, and to provide Owner with elevators, and when necessary,
elevator operators, in accordance with Owner's installation schedule, for
Owner's exclusive use in such setting in place and installation. In addition,
the Construction Manager shall coordinate with Owner's other contractors for the
installation of utilities, equipment, and fixtures and agrees to coordinate its
Shop Drawings with those of other contractors.
B. The Construction Manager shall afford other contractors reasonable
opportunity for the introduction and storage of their materials and equipment
and the execution of their work, and shall properly connect and coordinate its
Work with theirs.
C. If any part of the Construction Manager's Work depends upon the proper
execution or the results of the work of any other contractor, the Construction
Manager shall reasonably inspect and promptly report in writing to Owner any
apparent discrepancies or defects in such work that render it unsuitable for
Construction Manager's proper execution. Failure of the Construction Manager to
so inspect and report shall constitute an acceptance of the other contractor's
work as fit and proper to receive its Work, except as to defects which may
develop in the other contractor's work after the execution of the Construction
Manager's Work.
D. Should the Construction Manager or any Subcontractor cause damage, delay
or inefficiency to, or otherwise adversely impact, the work or property of any
other contractor on the Site or adjacent property owners, Owner shall notify the
offending party in writing of such damage and the offending party shall bear the
cost of repairing all such damage. Owner reserves the right to effectuate the
repairs and to charge the cost thereof against the contract of the offending
party. Construction Manager hereby agrees to attempt to resolve any issues
regarding damage to another contractor's work, or damage to its Work caused by
another contractor, with the other contractor.
E. If any separate contractor(s) or owner sues Owner on account of any
damages caused by the negligence or wrongful action or omission of the
Construction Manager, its Subcontractors or its Sub-Subcontractors, Owner shall
notify the Construction Manager who shall defend Owner at such proceedings at
Construction Manager's expense, and if any judgment or award against Owner
arises there from the Construction Manager shall pay or satisfy it and shall
reimburse Owner for all attorneys' fees and court or other costs which Owner
have reasonably incurred thereby.
25. SUBCONTRACTORS
A. The Construction Manager shall furnish Owner, prior to execution of the
GMP Amendment and/or Separate GMP Amendment(s), as applicable, a complete list
of all Subcontractors and Suppliers who are proposed to perform Work or supply
materials in excess of $25,000 (twenty-five thousand dollars) and such other
Subcontractors or Suppliers as may be requested by Owner, who are proposed for
the execution of the Work, (including address, phone number and contact name for
each Subcontractor and Supplier). Subcontractors and Suppliers shall be selected
as provided in Article 10 of the Agreement. In connection with the selection
process Construction Manager shall make available to Owner and Architect copies
of all bids, proposals, contracts, subcontracts or other information concerning
the Subcontractors and Suppliers, including financial statements, which may be
helpful to Owner and Architect, or any person or entity providing financing on
behalf of the Owner, in evaluating any of the Subcontractors proposed to perform
any part of the Work. Construction Manager shall make available to Owner and
Architect with respect to the proposed Subcontractors and Suppliers such other
proof of their financial stability and experience, lists of completed projects
and letters of reference as may be required by Owner or Architect.
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B. No payment will be made to the Construction Manager for work performed
by a Subcontractor not selected in accordance with Article 10 of the Agreement..
C. Owner shall have the right to contact Subcontractors and Suppliers
directly to ascertain: (i) what amounts, if any, are due to them from the
Construction Manager; (ii) the projected costs of completing the remaining
portion of their Work; and (iii) the scope and amount of any claims and disputes
between the Subcontractor or the Supplier and the Construction Manager.
D. Nothing contained in the Contract Documents shall create any contractual
relationship between any Subcontractor and Owner or any agent or employee of
Owner. Nothing in the Contract Documents, including the provisions of Paragraph
26 in these General Conditions, shall create any obligation on the part of
Owner, or any employee or agent of Owner, to pay or to see to the payment of any
sums to any Subcontractor, Supplier or Sub-Subcontractor or any other party not
directly contracting with Owner.
E. Owner shall have the right to review, with proposed Subcontractors and
the Construction Manager, the elements of the Work to be performed by the
Subcontractors in order to find ways of reducing the Cost of the Work and the
Construction Manager agrees to cooperate fully with Owner in this regard.
26. RELATIONS OF CONSTRUCTION MANAGER AND SUBCONTRACTORS
A. Relations. All agreements between the Construction Manager and its
Subcontractors shall preserve and protect the rights of the Owner under the
Contract Documents with respect to the performance of the Work so that the
subcontracting thereof will not prejudice such rights.
B. The Construction Manager Shall Require Each Subcontractor:
(1) To submit to the Construction Manager applications for payment in
accordance with the Contract Documents;
(2) To submit all claims, including requests for greater compensation,
extensions of time and proposals for Changes of Contract, in accordance with the
Contract Documents;
(3) To agree to Owner's right to obtain an assignment of the
Subcontract or purchase order to Owner on the terms and conditions provided in
the Contract;
(4) In the event of a termination for convenience pursuant to
Xxxxxxxxx 00X, to agree that the Subcontractor's or Supplier's recovery under
any theory shall be determined and limited in accordance with that Paragraph;
and
(5) To subordinate its lien rights to the lien of any lender providing
financing to the Owner, in form acceptable to such lender.
C. The Construction Manager Agrees:
(1) To pay each Subcontractor, upon Owner's payment to Construction Manager
and in accordance with the requirements of Maryland Code: Real Property Section
9-201 et. seq. ;
(2) To pay to each Subcontractor all amounts received from Owner, or
otherwise due, with respect to such Subcontractor's work within the time
required by this Contract and the applicable Subcontract (less any retained
percentage). The Construction Manager's Applications for Payment may not include
requests for payment of amounts the Construction Manager does not intend to pay
a Subcontractor because of a dispute or other reason;
(3) To pass through to Subcontractors any release of retention received
from Owner relating to the Subcontractors' work; and
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(4) To pay each Subcontractor its required pro rata share of any fire
insurance proceeds received by the Construction Manager, under this Contract.
27. APPLICATION FOR PAYMENTS
A. Schedule of Values. Before the first application for payment
("Application for Payment"), the Construction Manager shall submit to Owner a
schedule of values ("Schedule of Values") allocating the Contract Sum to the
various portions of the Work and to the portions of the Work performed by each
Subcontractor. The Schedule of Values shall contain single line item entries,
identified for each major item of Work and each subcontracted item of Work,
referenced to the number and titles of the specification section applicable for
each item. The provisions of paragraph 12.5.1 of the Agreement shall apply to
these line item entries. The Schedule of Values shall be prepared on a form as
set forth in Exhibit 5 hereto or on another form approved by Owner.
A1. Fixed Asset and Tangible Personal Property Summary Upon substantial
completion Construction Manager shall provide direct costs and indirect costs,
where applicable, for the assets listed in Exhibit 14.
X. Xxxx Waivers and Construction Manager's Warranty. Commencing with the
second Application for Payment and upon each subsequent Application for Payment,
the Construction Manager shall submit effective and unconditional waivers of
lien rights for itself and from all Subcontractors and Suppliers of Work
performed for the total amounts previously paid to the date of each Application
of Payment. Each Subcontractor and Supplier shall waive its lien rights to the
extent of payments previously received. Upon Application for Final Payment, the
Construction Manager shall submit effective and final waivers, conditional only
upon Construction Manager's receipt of Final Payment as requested in the
Application, for the total amount of the Work, from itself and any outstanding
lien waivers remaining due from Subcontractors and Suppliers. To the extent
permitted by law, the waivers of lien shall be in the form of Exhibits 3 and 4
and shall be executed by a person authorized to sign on behalf of the
Construction Manager, Subcontractor or Supplier. The Construction Manager
warrants title to all Work, including stored materials and equipment, upon its
receipt of payment therefor from Owner, to be free and clear of all liens,
claims, security interests or encumbrances.
C. Application for Payment Requirements. Applications for Payment will not
be accepted unless supported by completed and executed originals of the
following documents: (i) all Applications for Payment must include a Requisition
Cover Sheet (Exhibit 1), a Sworn Statement for Construction Manager and
Subcontractor to Owner (Exhibit 2) and a Schedule of Values (Exhibit 5); and
(ii) commencing with the second Application for Payment, all applications must
also include, as applicable, Partial Waivers of Lien (Exhibit 3) and Final
Waivers of Lien (Exhibit 4) as set forth in Paragraph 27B of these General
Conditions and Article 12 of the Agreement.
D. Materials Stored Off Site. If an Application for Payment is made for
materials not installed in the Work but suitably stored off-site at a location
acceptable to Owner, such application shall be accompanied by evidence
satisfactory to Owner establishing that:
(1) Construction Manager has paid for such materials (as evidenced by
invoices marked as paid by the vendor or bills of sale and delivery
tickets for such materials, signed by the Construction Manager);
(2) Owner will obtain title to such materials upon payment;
(3) Construction Manager has purchased sufficient insurance coverage for
such materials, which shall name Owner as beneficiary;
(4) When not at the Site, such materials shall be stored in a bonded
warehouse or other facility satisfactory to Owner and shall clearly be
identified by Owner and Project name;
(5) Construction Manager has made satisfactory arrangements for
transportation of such materials to the Site; and
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(6) Construction Manager has taken all actions necessary to maintain,
preserve and protect the materials and has kept them in good condition
and repair and has complied with Laws relating to the ownership,
storage or use of the materials.
Payment for materials and equipment stored off-Site shall be conditioned upon
compliance by the Construction Manager with the foregoing requirements. Failure
of the Construction Manager to furnish the foregoing information or such other
documentation or information as is reasonably requested by Owner will be cause
for withholding such amounts from payment. Owner reserves the right to examine
the stored materials prior to payment.
E. Retainage. Retainage shall be withheld by Owner and due and payable to
the Construction Manager in accordance with the provisions of Paragraphs 12.11
and 12.12 of the Agreement.
F. Whole Dollars. All Applications for Payment and all payments by Owner
shall be made in whole dollars.
28. PAYMENTS WITHHELD
A. Withholding of Payment. Notwithstanding the certification or approval of
the Construction Manager's application for payment by the Architect, Owner may
withhold, set off, or, on account of subsequently discovered evidence, nullify
the whole or part of any Application for Payment to such extent as Owner, in its
reasonable discretion, deems necessary to protect Owner and Owner from loss
(including any multiple of claim, lien or disputed amount) on account of:
(1) Failure or refusal of the Construction Manager to perform or comply
with any terms, conditions, provisions or obligations of this Contract or
any of the Contract Documents, including without limitation the MBE/LBE
Agreement, the Prevailing Wage Schedule and all applicable permits and
approvals;
(2) Defective Work not remedied;
(3) Claims or liens filed or reasonable evidence indicating probable filing
of claims or liens which the Construction Manager is responsible to remove,
pay or bond over under the terms of this Contract;
(4) Failure of the Construction Manager to make payments as required by
this Contract to Subcontractors or Suppliers;
(5) A reasonable doubt that the Work can be completed for the balance then
unpaid pursuant to the Construction Progress Schedule;
(6) Damage cased by the negligent or wrongful acts or failure to act of the
Construction Manager, its Subcontractors or Suppliers to the property of
the Owner, another contractor or adjacent property;
(7) Failure, refusal or neglect in supplying sufficient labor, material or
supervision in the prosecution of the Work;
(8) Failure to meet the Application for Payment requirements set forth in
Paragraph 27 of these General Conditions;
(9) Failure to submit all revisions to and comply with the Construction
Progress Schedule;
(10) Failure to submit progress reports and schedules and failure to hold
progress meeting pursuant to the provisions of this Contract; and
(11) Failure to furnish Owner complete, correct and original insurance
certificates, business documentation and financial documentation as
required pursuant to the terms of this Contract.
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B. Payments Directly To Subcontractors. Should the Construction Manager
neglect or refuse to pay any xxxx, invoice, or any other obligation to a
Subcontractor or Supplier, incurred by it in connection with the Work, for which
the Construction Manager is required to make payment pursuant to the terms of
this Contract, Owner, after giving the Construction Manager and its surety, if
any, three (3) days' written notice of its intention so to do, shall have the
right to pay and discharge the aforementioned xxxx. Any such payment made
pursuant to this Paragraph 28B by Owner shall be considered as a payment to the
Construction Manager and shall be credited against the GMP (or Separate GMP as
applicable) due the Construction Manager hereunder.
C. Joint Checks. In order to require that the Construction Manager make
prompt payment to its Subcontractors of the amounts identified in each
Application for Payment as intended for said persons or entities, the Owner
shall have the right, but not the obligation, to issue progress or final
payments to the Construction Manager in the form of joint checks payable to both
the Construction Manager and its Subcontractors or Suppliers, as appropriate,
provided the Owner has first given the Construction Manager written notice of
such intent and has not received adequate assurance (within 7 days after such
notice) that the Construction Manager will pay the Subcontractor the amounts
applied for by the Construction Manager in its payment applications with respect
to the applicable Subcontractor's work. In this regard, the Construction Manager
agrees that it will not make an Application for Payment that includes requests
for payments of amounts that the Construction Manager does not intend to pay to
any Subcontractor because of a dispute or other reason. In addition, if, after
an Application for Payment is submitted or a payment is made by the Owner to the
Construction Manager, the Construction Manager decides not to pay Subcontractor
the amounts requested on behalf of the Subcontractor in an Application for
Payment or amounts received by the Construction Manager from the Owner on behalf
of the Subcontractor, Construction Manager shall promptly notify Owner of such
fact and the payment amount at issue and Construction Manager shall promptly
revise its Application for Payment or refund the money so paid by the Owner, as
applicable. In addition, Construction Manager hereby authorizes and consents to
direct communications, at any time and in any fashion, between Owner and any
Subcontractors on the Project, regarding the Work performed on the Project and
the status of payments to said persons or entities for said Work.
29. COMPLETION AND FINAL PAYMENT
A. Upon completion of the Work, Construction Manager shall file a request
for final payment ("Final Application for Payment"). Upon the receipt of
Construction Manager's Final Application for Payment, Owner shall promptly make
a final inspection, and if Owner finds the Work acceptable and complete in
strict accordance with the Contract Documents, Owner shall promptly pay
Construction Manager the Contract Sum (as adjusted by any Changes of Contract
and Change Directives issued pursuant to Paragraph 17 hereof) less all prior
payments to or for the account of the Contract to the Construction Manager as
final payment ("Final Payment"). Final Payment shall be conditioned upon, and
shall not be due until satisfaction of, all of the following items:
(1) Full performance by Construction Manager of all Contract terms and its
compliance with all requirements of the Contract Documents, including
without limitation all reporting and certifications required by the MBE/LBE
Agreement and to evidence compliance with the Prevailing Wage Schedule and
all applicable permits and approvals;
(2) Acceptance of the Work by Architect;
(3) Resolution of all outstanding Changes of Contract;
(4) Completion of all items specified in the Final Punchlist;
(5) Delivery to Owner of all documentation required in Paragraph 27C,
including, without limitation, original, signed, Final Waivers of Lien
(Exhibit 4), conditional only upon Construction Manager's receipt of Final
Payment as requested in the application, from Construction Manager, all
Subcontractors and Suppliers, and all Sub Subcontractors. The Construction
Manager agrees that it shall, within seven (7) days after receipt of final
payment from the Owner, submit final and unconditional lien waivers and
releases from all persons identified in this subsection. (The Owner
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agrees that the provisions of Paragraph 13.1 of the Agreement shall apply
to the payment of undisputed amounts prior to the time of Final Payment.);
(6) Releases conditional only upon Construction Manager's receipt of final
payment as requested in the application, of all liens or other claims filed
against Owner or Owner by the Construction Manager, any Subcontractors or
any Sub Subcontractors (which releases shall be evidenced by final waivers
and releases, properly recorded releases of liens, other documentation
acceptable to Owner or lien and/or title searches conducted by Owner).
Construction Manager agrees that it shall, within seven (7) days after
receipt of final payment of the Owner, submit final and unconditional
waivers and releases from all persons identified in this subsection. (The
Owner agrees that the provisions of Paragraph 13.1 of the Agreement shall
apply to the payment of undisputed amounts prior to the time of Final
Payment.);
(7) Delivery to Owner of all warranties, and guarantees and all
instruction, operation and maintenance manuals as required pursuant to
Paragraph 30 below, all permanent permits, licenses and certificates
necessary for the intended operation of the facility and the As-Built
Drawings, as required pursuant to Paragraph 33 below; and
(8) If applicable, the written consent to Final Payment by Construction
Manager's surety.
B. From time to time, as the Construction Manager completes portions of the
Work, Owner shall have the right, upon giving the Construction Manager prior
written notice, to accept any portion of the Work that Owner desire to use and
occupy. Such partial acceptance shall be made in writing and thereafter the
Construction Manager shall have no further obligation with respect to the Work
accepted, except to correct the Work subsequently found to have been improperly
done or to replace defective materials or equipment, or to perform Work pursuant
to Paragraph 30 hereof. Notwithstanding anything contained herein to the
contrary, all guarantees and warranties arising pursuant to Paragraph 30 hereof
shall run from the time of Substantial Completion of the entire Work, and not
from the time of any partial acceptance which occurs pursuant to this Paragraph
29B. The Owner agrees that the cost of obtaining any guarantees or warranties
necessary to satisfy the requirements of this paragraph shall be included in the
Cost of the Work, subject to the GMP (or Separate GMP, as applicable).
C. The making of Final Payment shall not constitute a waiver of all claims
by Owner.
D. The acceptance by Construction Manager of Final Payment shall constitute
a waiver of all claims or causes of action of any nature, whether known or
unknown, by the Construction Manager relating directly or indirectly to this
Contract and to the Work performed hereunder, except and only for claims or
causes of action that the Owner expressly agrees in writing (prior to making
final payment) to leave open notwithstanding final payment. (The Owner agrees
that the provisions of Paragraph 13.1 of the Agreement shall apply to the
payment of undisputed amounts prior to the time of Final Payment.) The Owner
agrees to make payment of any amounts that are not contested by the Owner and/or
not subject to reduction or set off by Owner pursuant to the terms of this
Contract, notwithstanding the existence of other disputes that affect, in the
Owner's reasonable judgment, the remaining amounts due to the Construction
Manager.
30. WARRANTIES AND GUARANTEES
A. The Construction Manager warrants to the Owner and its successors in
title to the Project that materials and equipment furnished under the Contract
will be of good quality and new unless otherwise required or permitted by the
Contract Documents, that the Work will be free from any defects or deficiencies
in workmanship or materials (ordinary wear and tear excepted) and that the Work
will conform with the requirements of the Contract Documents for a period of one
(1) year from the date of Substantial Completion. Work not conforming to these
requirements or any other requirements of the Contract Documents, including
substitutions not properly approved and authorized, shall be considered
defective. Warranty Work shall be promptly performed by Construction Manager
upon written notice from Owner at Construction Manager's expense. The
Construction Manager's warranty does not cover damage or failure of materials to
the extent caused by any abuse, modification, improper or insufficient
maintenance or improper operation by the Owner. If required by the Owner, the
Construction Manager shall furnish satisfactory
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evidence as to the kind and quality of materials and equipment to be employed in
the performance of the Work. All manufactured articles, materials, and equipment
shall be stored, applied, installed, tested, connected, erected, used, cleaned
and conditioned by the Construction Manager as directed by the manufacturer
unless otherwise specified. In addition to the warranties provided for above,
the Construction Manager represents and warrants to Owner that all Work,
materials and equipment furnished under this Contract shall be free from failure
under ordinary usage for a period of one (1) year from the date of Substantial
Completion. All Work not conforming to these standards shall be considered
defective. Further, the Construction Manager agrees that all guarantees or
warranties of equipment or materials furnished to the Construction Manager or
Subcontractors by any manufacturer or Supplier shall be deemed to run to the
benefit of, and are hereby assigned to, the Owner. As a condition to final
payment for the Work, the Construction Manager shall deliver to the Owner two
(2) clean, complete and readable copies of all guarantees and warranties on
equipment and materials furnished by all manufacturers and Suppliers to the
Construction Manager and all Subcontractors, together with duly executed
instruments properly assigning the guarantees and warranties to the Owner, and
shall also deliver to the Owner two (2) clean, complete and readable copies of
all related manufacturer's instructions, related maintenance manuals,
replacement lists, detailed drawings and any technical requirements necessary to
operate and maintain such equipment and materials or needed to maintain the
effectiveness of any such warranties (hereinafter " Warranty Data"). In
addition, the Construction Manager shall furnish a copy of the Warranty Data in
an electronic medium as specified by he Owner. All warranties provided in this
Paragraph or elsewhere in the Contract Documents shall survive any termination
of this Contract.
B. The Construction Manager shall require the warranty contained in
Paragraph 30A above in all subcontracts and shall include the requirement that
Owner be reimbursed for any damage or loss to the Work or to other work
resulting from such defects. The Construction Manager agrees, without increase
in the GMP and/or Separate GMP, as applicable, and as part of its guarantee
under this Paragraph 30 to repair or remove or replace, as directed by Owner,
all Work which proves defective during the warranty period or which fails to
conform to the Contract Documents; to repair, remove, and replace, as directed
by Owner, all damaged portions of the Work resulting from or which is incidental
to defects in the Work as stated in this Paragraph 30, or which are damaged by
the repair of such defects. All repairs, removals and replacements must be
commenced upon receipt of written notice from Owner at times reasonably approved
in advance by Owner. The Construction Manager shall furnish sufficient workmen
and materials to ensure prompt completion thereof. Should the Construction
Manager fail to proceed in accordance with the provisions of this Paragraph 30,
Owner, without further notice to the Construction Manager, may furnish all labor
and material necessary for said repairs, or removals and replacements; all costs
associated with such repair or replacement work shall be charged to the
Construction Manager.
C. Upon Substantial Completion of the Work and prior to Final Payment, the
Construction Manager shall prepare, organize, assemble and transmit to Owner two
(2) complete sets, including one original set, of all written warranties and
guarantees of Subcontractors and Suppliers applicable to the Work or required by
the Contract Documents and instruction, operation and maintenance manuals for
all operating equipment and systems and for all wearing surfaces (hereafter
"Subcontractor Warranty Data"). In addition, the Construction Manager shall
furnish a copy of all Subcontractor Warranty Data in an electronic medium as
specified by the Owner. All such warranties and guarantees with regard to
services or materials shall be made for the benefit of Owner and the
Construction Manager and shall be enforceable by either Owner or the
Construction Manager. The Construction Manager shall execute any documents or
take such action as may be necessary to ensure that Owner receives the benefits
thereof. Should the Construction Manager or a Subcontractor replace any part of
the Work, all warranties or guarantees applicable to the component replaced
shall begin anew from the date of Owner's acceptance of the replacement.
D. No contract or purchase pertaining to the Work shall allow for waiver of
warranties or guarantees. All warranties and guarantees under this Paragraph 30
shall be assignable and transferable to any purchaser, successor or assign of
the Project.
E. Nothing contained in this Paragraph 30 shall be construed to establish a
period of limitation with respect to any other obligation which the Construction
Manager or Owner may have under the Contract Documents.
F. The Construction Manager's guarantees and warranties under this
Paragraph shall not be construed to limit Owner's right of recovery for defects
in the Construction Manager's Work or the items provided by the
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Construction Manager, whether in warranty, contract or any other applicable
legal theory, which may arise under other provisions of the Contract or under
law.
31. TAXES
A. The Construction Manager shall pay for all sales, consumer, use, gross
receipts and other similar taxes for the Work or portions thereof provided by
the Construction Manager, which taxes are included in the Contract Sum subject
to the provisions of Paragraph 14.5 in the Agreement.
B. Costs for labor, building materials and any such tax referred to in
Paragraph 31A shall be separately stated in all requisition or Application for
Payment documents submitted by all Subcontractors.
C. If the Construction Manager is nonresident in the state where the Work
will be performed, the Construction Manager shall comply with the
sales/use/gross receipts tax laws and regulations of such state. Such compliance
may involve licensing, proof of tax payment, deposits, bonding, withholding, tax
clearances, audits and/or Subcontractor relations. Proof of compliance shall
accompany the first Application for Payment, and shall include, without
limitation, any required state and local construction and business licenses. It
is the intent of the Parties to this Contract that the Construction Manager will
pay, and indemnify Owner from any liability for, these taxes.
D. Notwithstanding anything in this Agreement to the contrary, and as
required by Section 13-803 of the Tax-General Article of the Maryland Code, if
the Construction Manager is a "Nonresident contractor" as that term is defined
in Section 13-803(a)(2) and this Project meets the other requirements of Section
13-803, then, in such event, and without regard to whether all other conditions
of Substantial Completion and Final Completion have been met under the
Agreement, the Owner shall withhold 3% of the Contract Sum until thirty (30)
days after the requirements of Section 13-803 have been met. This Section shall
not supplement, but not limit, any other provisions of this Agreement
authorizing the withholding of payment from the Construction Manager.
32. PROJECT RECORD DOCUMENTS
A. The Construction Manager shall maintain at the Site, unless otherwise
directed by Owner, copies of all Drawings, Specifications, Addenda, Submittals,
Changes of Contract, Change Directives, other contract modifications and other
documents submitted in compliance with the Contract Documents.
B. The Construction Manager shall check all sections of the Specifications
for specific references to maintaining record drawings and diagrams (the
"Project Record Documents"). These references are intended to clarify record
documentation for particular items and are not intended to limit requirements
generally.
C. The Construction Manager shall ensure that each of the Project Record
Documents shall be clearly marked "Project Record Copy" and shall be maintained
in good condition and available at all times for inspection by Owner and
Architect. The Construction Manager shall xxxx up the most appropriate documents
to record significant changes during the construction process and significant
details not shown in the original Contract Documents.
D. The Construction Manager shall ensure that the information given shall
include, but not be limited to, the actual location of the underground utilities
and appurtenances, referenced to permanent surface improvements. Also, the
location of internal piping, wiring, ductwork, conduit and appurtenances
concealed in building structures, referenced to visible and accessible features
of the structures. Project record documents are to be kept current. No Work
shall be permanently concealed until the required information has been recorded.
E. At the completion of the Project, Owner will furnish the Construction
Manager with a complete set of current Contract Drawings. The Construction
Manager shall transfer the recorded changes to the Drawings neatly with a
permanent line of sufficient weight to clearly show the record changes. The
Construction Manager shall stamp and sign a certification statement on each
Drawing and page that the Drawings as submitted are correct and accurately
depict the Work as it has been constructed. In addition, the Construction
Manager shall provide a copy of thereof in electronic medium specified by the
Owner. These drawings (the "As-Built Drawings") shall be submitted to Owner
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prior to acceptance of the Project by Owner and prior to the release of the
Construction Manager's Final Payment. The Construction Manager shall maintain at
the Site for the Owner and in an electronic medium specified by the Owner one
record copy of the Drawings, Specifications, Addenda, Change Orders and other
Modifications, in good order and marked currently to record changes and
selections made during construction, and in addition approved Shop Drawings,
Product Data, Samples and similar required submittals. These shall also be
available to the Architect and/or Owner's Consultants upon request and shall be
delivered to the Owner upon completion of the Work. At the conclusion of the
Work on the Project, these marked drawings shall be given to the Architect and
used by him to produce a coordinated set of as-built drawings, showing all
construction work performed on the Project as set in place during construction
and revised to show the foregoing information and all changes made during
construction form the original drawings. The Construction Manager shall be
responsible and liable to the Owner for accurately and completely recording all
of the information required by this paragraph on the marked set of drawings and
shall, without increase in the GMP, review the as-built drawings prepared by the
Architect to verify that this information has been accurately incorporated in
the as-built drawings.
33. RIGHT TO EXAMINE, INSPECT AND COPY RECORDS
A. Maintenance of Records. The Construction Manager shall maintain all
documents, information and records related to the Work for three (3) years after
Final Payment or the final settlement of all Contract claims and disputes,
whichever is later. The Construction Manager shall make such documents,
information and records available to Owner for examination, inspection, audit
and/or reproduction, at the Site and at the Owner's Nashville office, at all
reasonable times, without increase in the GMP.
B. Employees and Employer Payroll Records. The Owner, Architect, Owner's
Consultants and their authorized representatives and designees shall also be
allowed to interview any of the Construction Manager's employees during working
hours on the job (so long as such interview does not unreasonably interfere with
the progress of the Work), throughout the term of the Contract and until the
later to occur of three (3) years after Final Payment or the final resolution of
all claims and disputes under the Contract.
34. OWNERSHIP AND USE OF DOCUMENTS; ROYALTIES AND PATENTS
A. All Drawings, Project Plans and Specifications, or other documentation,
and copies thereof, furnished by Architect, Owner or their agents, employees or
consultants, are and shall remain the property of Owner. They are to be used by
Construction Manager and all Subcontractors only with respect to this Project
and are not to be used on any other project.
B. The Owner shall also have the right to use all drawings, designs,
specifications, notes and other design works developed by the Construction
Manager or its Subcontractors, Sub Subcontractors or Suppliers in the
performance of this Contract (including Shop Drawings, equipment drawings,
wiring diagrams and system control diagrams and logic and any related computer
software programs), and the ideas and designs contained therein, in connection
with the Owner's occupancy, use, maintenance and repair of the Project and for
additions, alterations or future construction to the Project, without paying the
Construction Manager (or any Subcontractor, Sub Subcontractor or Supplier) any
compensation other than such amounts as are due to the Construction Manager
under this Contract. Notwithstanding the foregoing, however, the Owner agrees
that the Construction Manager and its Subcontractors or Suppliers, as
applicable, shall continue to own the standard boilerplate design features (that
do not separately or in combination reflect the unique design of the Project)
set forth in such drawings, designs, specifications, notes and other works, and
shall have the right to use such design features in connection with the design
and construction of other projects without the Owner's consent. The Owner agrees
not to sell or convey any such information to any third party for consideration
or value without the prior and written consent of the Construction Manager. The
Construction Manager for a period of three (3) years after Final Payment for the
Project agrees to furnish the original or copies of all such works at Owner's
request and without additional compensation. In addition, the Owner agrees that
the Construction Manager shall have no responsibility for (and the Owner shall
indemnify the Construction Manager from and against) any claims, losses or
damages arising out of the Owners use of the drawings, designs, specifications,
notes and other design works developed by the Construction Manager or its
Subcontractors, Sub Subcontractors or Suppliers pursuant to this Contract in
connection with other projects or future alterations or additions to the
Construction of this
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Project, unless the Construction Manager or applicable Subcontractor is retained
to perform the necessary work (including design work) relating to such use.
C. The Construction Manager shall pay all royalties and license fees
related to the Work. The Construction Manager shall defend all suits or claims
for infringement of any copyrights, trademarks or patent rights arising out of
the performance of the Work or out of the use or disposal of supplies furnished
pursuant to this Contract and shall save Owner harmless from loss on account
thereof; except that Owner shall be responsible for all such losses that result
solely from a particular design, process or the product of a particular
manufacturer or manufacturers that is specified in the Contract Documents, but
if the Construction Manager has reason to believe that the design, process or
product specified is an infringement of a patent, it shall be responsible for
such loss unless it promptly gives such information in writing to Owner and
Architect or should have discovered such information and given such information
to Owner and Architect.
35. OWNER-FURNISHED MATERIAL
A. Owner reserves the right to procure certain materials for the
Construction Manager's use on or installation in the Work, as designated by
Owner. Upon request by Owner, the Construction Manager shall provide Owner with
proposed quantities of such materials. Owner will review the Construction
Manager's proposal and then the Construction Manager and Owner will mutually
agree on the quantities sufficient to complete the Work. Upon such agreement,
the Construction Manager shall certify in writing that the agreed upon
quantities are sufficient to complete the Work. If the Owner requires the
Construction Manager to provide work or services with respect to Owner-furnished
materials after the Construction Manager and Owner have executed the GMP
Amendment (or Separate GMP Amendment, as applicable), Construction Manager shall
be entitled to an increase in the GMP (or Separate GMP, as applicable), pursuant
to the provisions of this Contract, to the extent that such requirement
constitutes a Material Change as defined in the Agreement. Correspondingly,
Owner shall be entitled to a decrease in the GMP (or Separate GMP, as
applicable) for any savings in cost of materials that are provided by Owner
rather than Construction Manager.
B. The Construction Manager shall inspect all items procured by Owner to
determine their conformance in quality and general condition to shipping
documents and descriptive literature. The Construction Manager shall supply all
labor and equipment for unloading, storing on- or off-site, intermediate moving
to the Site, handling on the Site and final placement and installation of such
items. While the item is in the custody of the Construction Manager, it shall
protect it and handle it as its own. The Owner agrees that the Construction
Manager shall not be responsible for latent defects inherent in the shipment,
manufacture or quality of Owner-furnished materials.
C. Construction Manager shall provide all labor, materials, tools,
equipment, incidentals and services necessary for the complete installation of
any items procured by Owner for which the Construction Manager is responsible
pursuant to the Contract Documents. Such installation shall include setting in
place, connecting and making operational said items.
36. DISPUTES
A. Any and all disputes arising hereunder which are not otherwise amicably
resolved by mutual agreement shall be resolved by the courts of competent
jurisdiction located in the state in which the Project is located.
B. The presence of claims, disputes or controversies between the
Construction Manager and any other party, including Owner and Architect, over
any matter whatsoever, or legal proceedings arising from such claims, disputes
or controversies, shall not relieve the Construction Manager of its obligation,
during the resolution of any such claims, disputes or controversies, to continue
to perform its Work properly and timely and to comply with all of the terms and
conditions of the Contract. Similarly, Owner agrees that it shall make payment
of any amounts due Construction Manager pursuant to this Contract that are not
in good faith contested by Owner and/or not subject to reduction or set off by
Owner pursuant to the provisions of this Contract, notwithstanding the presence
of a dispute or controversy regarding any other amounts due to Construction
Manager hereunder. As used herein, a "claim" is a demand or assertion by one of
the parties seeking an adjustment or interpretation of the terms of any Contract
Document, an increase in the Guaranteed Maximum Price (or Separate GMP, as
applicable), an extension of the Completion Date(s) or Milestone Dates, any
other payment of money, damages or costs or an extension of time or other
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relief with respect to the terms of this Agreement or the Work performed on the
Project. The term "claim" also includes all other disputes and matters in
question between the Owner and Construction Manager arising out of or relating
to this Agreement or the Project. All claims must be made by written notice. The
responsibility to substantiate claims shall rest with the party making the
claim.
Notwithstanding any other provision of this Contract, the Construction
Manager shall not be entitled to make any claim for any increase in the
Guaranteed Maximum Price (or any Separate GMP, as applicable) or for any
extension of the Completion Date(s) or Milestone Dates or for any other costs,
expenses, damages or relief of any kind or nature regardless of the asserted
cause unless the Construction Manager has made such claim in writing to the
Owner: (1) no later than the date established by the applicable provisions of
this Contract; or (2) if no such date has been established no later than
fourteen (14) days after the first occurrence of the event giving rise to such
claim or within fourteen (14) days after the Construction Manager first
recognized or, acting reasonably, should have recognized, the condition giving
rise to the claim, whichever is later. The failure to make any such claim in
writing and within the time limits established by this Paragraph shall mean that
the claim has been waived by the Construction Manager, and that the Construction
Manager shall be precluded from any recovery of any kind in connection with the
occurrence or condition giving rise to said claim and that the Construction
Manager shall perform all Work required by or in connection with any such event
or condition without any extension in the Completion Date(s) or Milestone Dates
or any increase in the Guaranteed Maximum Price (or Separate GMP, as applicable)
and/or any other increase in compensation or other damages of any kind or
nature.
C. The Construction Manager agrees that its sole and complete remedy with
respect to any successful Claim based on Material Changes or suspension of the
Work by Owner for reason other than the wrongful act or omission of Construction
Manager or any of its Subcontractors, Sub-subcontractors or suppliers shall be a
time extension and the actual and reasonable increased Cost of the Work (limited
to Owner Excused Delay Cost, in the case of Owner Excused Delay Cost), if any,
incurred by the Construction Manager as a result of the occurrence or condition
giving rise to the claim, as provided in the Contract. This amount shall be
considered inclusive of all delay, acceleration, impact or other costs allegedly
incurred as a result of such occurrence or condition and no additional damages
or costs shall be recovered by the Construction Manager. There shall be no
increase in Construction Manager's Fee and increase in Fixed General Conditions
shall be governed by the remaining provisions of the Contract.
37. MISCELLANEOUS
A. Applicable Law. The Contract Documents shall be construed in accordance
with the laws of the state of Maryland.
B. Severability. If any of the provisions of the Contract Documents shall
contravene or be invalid under any Laws, such contravention or invalidity shall
not invalidate the whole Contract or any other provision contained within the
Contract Documents, but the Contract Documents shall be construed as if not
containing the provision held to be invalid, and the rights and obligations of
the Parties shall be enforced accordingly, provided, however, that if the
invalidity of such provision is so material as to render the entire Contract
incapable of meaningful interpretation or enforcement (and the Construction
Manager and Owner are not able to amend and reform the Contract as set forth in
this Paragraph below within thirty (30) days after the provision is declared
invalid), the Contract shall be deemed terminated for convenience by the Owner,
pursuant to the provisions of Paragraph 19B of these General Conditions. If any
term or provision hereof is or becomes invalid or unenforceable, the
Construction Manager and Owner will in good faith attempt to replace it by a
term or provision which is valid and enforceable, and which comes as close as
possible to expressing the intention of the invalid or unenforceable term or
provision.
C. Rights and Remedies. Duties and obligations imposed by the Contract
Documents and rights and remedies available thereunder shall be in addition to
and not in limitation of duties, obligations, rights and remedies otherwise
imposed or available at law.
D. Non-Waiver. Except as provided in Paragraph 37C above, no action or
failure to act by Construction Manager, Owner or Architect, their agents or
employees, shall constitute a waiver of any right or duty afforded to
Construction Manager or Owner under the Contract Documents, nor shall any such
action or failure to act constitute approval of or acquiescence in any breach
thereunder, except as may be specifically agreed in writing. No payment
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made hereunder shall be deemed to constitute an acceptance or approval of any
defective or unsatisfactory Work or material, or a waiver of Owner's or
Architect's right to reject the same later.
E. Conventions. The captions of Articles, Paragraphs and various
Subparagraphs in the Contract Documents are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
of any Article, Paragraph or Subparagraph herein. Words of any gender used in
the Contract Documents shall be held to include any other gender, and words used
in the singular shall be held to include the plural, when the sense requires.
F. Survival of Obligations. All provisions of the Contract Documents, which
by their terms require performance by Owner or the Construction Manager after
termination of this Contract, shall survive any such termination. The Parties'
obligations with respect to insurance, indemnification, warranty, records
audits, unresolved claims and disputes and other such obligations, shall survive
the termination of this Contract.
G. Confidentiality. Other than the Construction Manager's disclosure to its
lenders, attorneys, accountants and bonding companies of the existence of the
Contract and the value of the work-in-process, the Construction Manager shall
not, without the prior written consent of the Owner, disclose or make available
to any person, or use, directly or indirectly, except for the performance and
implementation of the Work, any confidential information in connection with the
performance of this Contract, including the award of this Contract, unless
required to do so by order of a court or public authority having jurisdiction
(in which case Construction Manager shall, prior to complying with such order,
give written notice and a copy of such order to Owner and allow Owner to contest
or seek a protective order limiting such disclosure). Construction Manager may
have access to information with regard to systems, concepts, designs, trade
secrets, financial data and general business information of Xxxxxxx
Entertainment Company, its subsidiary, affiliated and related companies which is
not generally known by the public and which gives Xxxxxxx Entertainment Company
an advantage over its competitors. The Project, and all matters relating to it,
including any discussions between Xxxxxxx Entertainment Company, its subsidiary,
affiliated and related companies and Construction Manager are considered and
will be treated as confidential information by Construction Manager and
Construction Manager's employees and Subcontractors at all tiers. Construction
Manager agrees to refrain at all times from disclosing any confidential
information to others or from using it except for the benefit of Owner and
Xxxxxxx Entertainment Company and to refrain from any other acts which would
tend to impair the value of the confidential information to Xxxxxxx
Entertainment Company. Construction Manager will include this provision in each
Subcontract at every tier and into agreements with its employees assigned to the
Project so that each will agree to the provisions of this Paragraph.
Further, without the prior written approval of Xxxxxxx Entertainment
Company, Construction Manager and Construction Manager's employees will not
discuss the Project or their relationship to it with any branch of the media or
with any third party nor will they furnish any written materials, photographs,
drawings or sketches relating to the Project to any media entity or third party.
Construction Manager will not use the name Xxxxxxx Hotels or Xxxxxxx
Entertainment Company, or any variant thereof, or its association with Owner or
Xxxxxxx Entertainment Company, its subsidiary, affiliated and related companies
in any form of advertising or promotion without the prior written consent of
Xxxxxxx Entertainment Company. Further Construction Manager will not use the
name of Xxxxxxx Entertainment Company, its subsidiary, affiliated or related
companies or any of its fanciful characters or themes, whether real or
fictitious, associated with Xxxxxxx Entertainment Company, its subsidiary,
affiliated or related companies' products, or any other intellectual properties
owned or controlled by Xxxxxxx Entertainment Company or any of its subsidiary,
affiliated or related companies without the prior written consent of Xxxxxxx
Entertainment Company. Any consent required by this Paragraph may be given,
conditioned or withheld by Xxxxxxx Entertainment Company for any reason in its
sole discretion.
H. Entire Agreement. The Contract comprises the entire agreement between
the Owner and Construction Manager and supersedes all prior written or oral
agreements, understandings, representations, negotiations and correspondence
between the parties. The Contract shall not be amended or modified by the
silence of Owner, the failure of Owner to act, any course of dealing, course of
performance or usage of trade and may only be amended or modified by written
instrument. The Construction Manager and Owner agree and stipulate conclusively
that both parties received the benefit of counsel before signing the Agreement
and that both parties participated equally in the drafting of
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this Agreement. No drafts of any of the Contract Documents shall be used to
interpret the meaning or intent of the provisions of the Contract.
LIST OF EXHIBITS TO GENERAL CONDITIONS
Exhibit # Name
--------- ----
1 Requisition
2 Sworn Statement for Construction Manager & Subcontractor
3 Partial Waiver of Lien
4 General Release and Final Waiver of Lien
5 Schedule of Values
6 Construction Manager's Daily Report
7 Subcontractor's Daily Report
8 Historic Preservation Requirements
9 Subguard Insurance Program
10 Change Directive Form
11 Change of Contract Form
12 Owner Controlled Insurance Program and Forms
13 Prevailing Wage Requirements
14 Fixed Asset Property Value Summary
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GMP AMENDMENT NUMBER 1
TO
AGREEMENT BETWEEN THE OWNER AND THE CONSTRUCTION MANAGER
This Separate GMP Amendment is executed this 9th day of May, 2005, by Xxxxxxx
National, LLC ("Owner") and Perini/Xxxxxxxx XX ("Construction Manager") pursuant
to the Agreement of even dated herewith ("Agreement") executed by the parties
for the performance by the Construction Manager of certain construction work and
construction management services for the Xxxxxxx National Harbor Resort and
Convention Center Project as identified therein.
1. Pursuant to the Agreement, Construction Manager hereby agrees that the
Separate Guaranteed Maximum Price ("Separate GMP") for the following Early Work
to be performed on the Project shall be $350,000.00. The Early Work covered by
this Separate GMP Amendment generally consists of the following: Preconstruction
Phase Services described by Paragraphs 5.2.5 through 5.s.6.4 of this Agreement
to reach a GMP by September 1, 2005.
2. The GMP Design Documents for the Early Work and any subsequent revisions
thereto upon which his Separate GMP Amendment is based, are identified as the
Design Development Set. For pricing purposes use the finish schedule issues at
Schematic Design.
3. The Owner and Construction Manager agreed that the Work required by this
Separate GMP Amendment has commenced and shall continue until complete in
accordance with a schedule established by the Owner.
OWNER CONSTRUCTION MANAGER
XXXXXXX NATIONAL, LLC PERINI BUILDING COMPANY
BY XXXXXXX HOTELS, LLC
ITS: SOLE MEMBER
/s/ Xxxxx X. Xxxxxxxx /s/ Xxx Xxxxx
------------------------------------- ----------------------------------------
(Signature) (Signature)
Xxxxx X. Xxxxxxxx Xxx Xxxxx, Xx. VP
(Printed Name and Title) (Printed Name and Title)
May 30, 2005 May 9, 2005
(Date) (Date)
XXXXXX CONSTRUCTION COMPANY
/s/ Xxxxxx Xxxxx
----------------------------------------
(Signature)
Xxxxxx Xxxxx, President,
Xxxxxxxx Builders
(Printed Name and Title)
May 11, 2005
(Date)
1
GMP AMENDMENT NUMBER 2
TO
AGREEMENT BETWEEN THE OWNER AND THE CONSTRUCTION MANAGER
This GMP Amendment is executed this 27th day of July, 2005, by XXXXXXX NATIONAL,
LLC ("Owner") and PERINI XXXXXXXX JOINT VENTURE ("Construction Manager")
pursuant to the Agreement dated May 9, 2005 ("Agreement") executed by the
parties for the performance by the Construction Manager of certain construction
work and construction management services for the Xxxxxxx National Harbor Resort
and Convention Center Project as identified therein.
1. Pursuant to the Agreement, Construction Manager hereby agrees that the
Guaranteed Maximum Price ("GMP") for the Work to be performed on the Project
(including all Work under this GMP Amendment and all preconstruction services
performed under that Separate GMP Amendment dated May 9, 2005) shall be
$31,530,539 and that the GMP is divided as follows: (a) Preconstruction Services
are $350,000, (b) the Construction Manager's Lump Sum General Conditions are
$19,255,989, (c) Interim General Conditions are $0, (d) the Cost of the Work
equals $10,422,050; (e) the Construction Manager's Fee for this GMP is $981,500
and (e) Contingency is $521,000.
2. The GMP Design Documents and any subsequent revision thereto upon which
this GMP Amendment is based, are identified in Exhibit 1 attached hereto.
3. The Completion Date(s) for the work included in this GMP, pursuant to
Paragraph 4.2 of the Agreement, shall be as set forth therein and substantially
complete by March 30, 2006.
4. The Owner and Construction Manager agree that the Work required by this
GMP Amendment has been commenced or shall commence on May 9, 2005.
OWNER CONSTRUCTION MANAGER
XXXXXXX NATIONAL, LLC PERINI XXXXXXXX JOINT VENTURE
BY XXXXXXX HOTELS, LLC
ITS: SOLE MEMBER
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxx
------------------------------------- ----------------------------------------
(Signature) (Signature)
EVP Proj. Exec.
(Title) (Title)
1
GMP AMENDMENT NUMBER 3
TO
AGREEMENT BETWEEN THE OWNER AND THE CONSTRUCTION MANAGER
This GMP Amendment is executed this 29th day of August, 2005, by XXXXXXX
NATIONAL, LLC ("Owner") and PERINI XXXXXXXX JOINT VENTURE ("Construction
Manager") pursuant to the Agreement dated May 9, 2005 ("Agreement") executed by
the parties for the performance by the Construction Manager of certain
construction work and construction management services for the Xxxxxxx National
Harbor Resort and Convention Center Project as identified therein.
1. Pursuant to the Agreement, Construction Manager hereby agrees that the
Guaranteed Maximum Price ("GMP") for the Work to be performed on the Project
(including all Work under this GMP Amendment and all preconstruction services
performed under that Separate GMP Amendment dated May 9, 2005) shall be
$67,990,341 and that the GMP is divided as follows: (a) Preconstruction Services
are $350,000, (b) the Construction Manager's Lump Sum General Conditions are
$19,255,989, (c) Interim General Conditions are Disputed ($522,000 not included
in the above amount), (d) the Cost of the Work equals $44,052,676, (e) the
Construction Manager's Fee for this GMP is $2,129,145 and (e) Contingency is
$2,202,531.
2. The GMP Design Documents and any subsequent revision thereto upon which
this GMP Amendment is based, are identified in Exhibit 1 attached hereto.
3. The Completion Date(s) for the work included in this GMP, pursuant to
Paragraph 4.2 of the Agreement, shall be as set forth therein and substantially
complete by March 30, 2006.
4. The Owner and Construction Manager agree that the Work required by this
GMP Amendment has been commenced or shall commence on May 9, 2005.
OWNER CONSTRUCTION MANAGER
XXXXXXX NATIONAL, LLC PERINI XXXXXXXX JOINT VENTURE
BY XXXXXXX HOTELS, LLC
ITS: SOLE MEMBER
/s/ Xxxxx X. Xxxxxxxx /s/ Xxx Xxxxx
------------------------------------- ----------------------------------------
(Signature) (Signature)
EVP & CFO Sr. VP
(Title) (Title)
1
GMP AMENDMENT NUMBER 4
TO
AGREEMENT BETWEEN THE OWNER AND THE CONSTRUCTION MANAGER
This GMP Amendment is executed this 17th day of November, 2005, by XXXXXXX
NATIONAL, LLC ("Owner") and PERINI XXXXXXXX JOINT VENTURE ("Construction
Manager") pursuant to the Agreement dated May 9, 2005 ("Agreement") executed by
the parties for the performance by the Construction Manager of certain
construction work and construction management services for the Xxxxxxx National
Harbor Resort and Convention Center Project as identified therein.
1. Pursuant to the Agreement, Construction Manager hereby agrees that the
Guaranteed Maximum Price ("GMP") for the Work to be performed on the Project
(including all Work under this GMP Amendment Number 4 and all Work previously
authorized pursuant to GMP Amendment Xxxxxxx 0, 0 xxx 0, xxxxx xx $155,251,671
and that the GMP is accounted as follows: (a) Preconstruction Services equals
$350,000, (b) the Construction Manager's Lump Sum General Conditions equals
$19,255,989, (c) Interim General Conditions are Disputed ($522,000 not included
in this GMP), (d) the Cost of the Work equals $144,581,551, (e) the Construction
Manager's Fee equals $4,875,870 and (f) Contingency equals $6,227,036.
2. The GMP Design Documents and any subsequent revision thereto upon which
this GMP Amendment is based, are identified in Exhibit 1 attached hereto.
3. The Owner and Construction Manager agree that the Work required by this
GMP Amendment has been commenced or shall commence on July 1, 2005.
4. Reference is made to Exhibit "E" Early Release of Retention of the
Agreement Between The Owner and The Construction Manager dated May 9, 2005; It
is understood and agreed that said exhibit is modified s follows; No retainage
shall be withheld on concrete, reinforcing steel, post tension and welded wire
fabric materials. Retainage on reinforcing steel installation shall be at 5%
until the reinforcing steel and post-tension installation has reached 50% at
which time no further retainage shall be held. Final retainage shall be released
in accordance with the provisions of Exhibit "E".
OWNER CONSTRUCTION MANAGER
XXXXXXX NATIONAL, LLC PERINI XXXXXXXX JOINT VENTURE
BY XXXXXXX HOTELS, LLC
ITS: SOLE MEMBER
/s/ Xxxxx X. Xxxxxxxx /s/ Xxx Xxxxx
------------------------------------- ----------------------------------------
(Signature) (Signature)
EVP & CFO Sr. VP
(Title) (Title)
1
GMP AMENDMENT NUMBER 5
TO
AGREEMENT BETWEEN THE OWNER AND THE CONSTRUCTION MANAGER
This GMP Amendment is executed this 14th day of December, 2005, by XXXXXXX
NATIONAL, LLC ("Owner") and PERINI XXXXXXXX JOINT VENTURE ("Construction
Manager") pursuant to the Agreement dated May 9, 2005 ("Agreement") executed by
the parties for the performance by the Construction Manager of certain
construction work and construction management services for the Xxxxxxx National
Harbor Resort and Convention Center Project as identified therein.
1. Pursuant to the Agreement, Construction Manager hereby agrees that the
Guaranteed Maximum Price ("GMP") for the Work to be performed on the Project
(including all Work under this GMP Amendment Number 5 and all Work previously
authorized pursuant to GMP Amendment Xxxxxxx 0, 0, 0 xxx 0, xxxxx xx
$164,998,943.00 and that the GMP is accounted as follows: (a) Preconstruction
Services equals $350,000, (b) the Construction Manager's Lump Sum General
Conditions equals $19,255,989, (c) Interim General Conditions are Disputed
($522,000 not included in this GMP), (d) the Cost of the Work equals
$133,533,687, (e) the Construction Manager's Fee equals $5,182,685 and (f)
Contingency equals $6,676,582.
2. The GMP Design Documents and any subsequent revisions, thereto upon
which this GMP Amendment is based, are identified in Exhibit 1 attached hereto.
3. The completion dates and interim milestone dates in the contract will be
evaluated, presented and adjusted once the final permits and drawings are
received. The schedule modifications once evaluated will be presented for
Owner's review.
4. The Owner has directed the Construction Manager to proceed with all work
for the changes and revisions shown on the Contact Documents associated with the
Alternate Meeting Rooms located in the upper level of the Convention Center.
OWNER CONSTRUCTION MANAGER
XXXXXXX NATIONAL, LLC PERINI XXXXXXXX JOINT VENTURE
BY XXXXXXX HOTELS, LLC
ITS: SOLE MEMBER
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxx Xxxxx
------------------------------------- ----------------------------------------
(Signature) (Signature)
EVP & CFO Principle in Charge
(Title) (Title)
1
GMP AMENDMENT NUMBER 6
TO
AGREEMENT BETWEEN THE OWNER AND THE CONSTRUCTION MANAGER
This separate GMP Amendment is executed this 17th day of January, 2006, by
XXXXXXX NATIONAL, LLC ("Owner") and PERINI XXXXXXXX JOINT VENTURE ("Construction
Manager") pursuant to the Agreement dated May 9, 2005 ("Agreement") executed by
the parties for the performance by the Construction Manager of certain
construction work and construction management services for the Xxxxxxx National
Harbor Resort and Convention Center Project as identified therein.
1. Pursuant to the Agreement, Construction Manager hereby agrees that the
Guaranteed Maximum Price (GMP) for the Work to be performed on the Project
(including all Work under this GMP Amendment Number 6 and all Work previously
authorized pursuant to GMP Amendments Xxxxxxx 0, 0, 0, 0 xxx 0, xxxxx xx
$200,883,028 and that the GMP is accounted as follows: (a) Preconstruction
Services equals $350,000, (b) the Construction Manager's Lump Sum General
Conditions equals $19,255,989, (c) the Cost of the Work equals $167,505,270, (d)
the Construction Manager's Fee equals $6,312,208 and (3) Contingency equals
$8,331,561.
2. The completion dates and interim milestone dates in the contract will be
evaluated, presented and adjusted once the final permits and drawings are
received. The schedule modifications once evaluated will be presented for
Owner's review.
OWNER CONSTRUCTION MANAGER
XXXXXXX NATIONAL, LLC PERINI XXXXXXXX JOINT VENTURE
BY XXXXXXX HOTELS, LLC
ITS: SOLE MEMBER
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxx Xxxxx
------------------------------------- ----------------------------------------
(Signature) (Signature)
EVP & CFO Principle in Charge
(Title) (Title)
1
GMP AMENDMENT NUMBER 7
TO
AGREEMENT BETWEEN THE OWNER AND THE CONSTRUCTION MANAGER
This Separate GMP Amendment is executed this 17th day of February, 2006, by
XXXXXXX NATIONAL, LLC ("Owner") and PERINI XXXXXXXX JOINT VENTURE ("Construction
Manager") pursuant to the Agreement dated May 9, 2005 ("Agreement") executed by
the parties for the performance by the Construction Manager of certain
construction work and construction management services for the Xxxxxxx National
Harbor Resort and Convention Center Project as identified therein:
1. Pursuant to the Agreement, Construction Manager hereby agrees that the
Guaranteed Maximum Price ("GMP") for the Work to be performed on the Project
(including all Work under this GMP Amendment Number 7 and all Work previously
authorized pursuant to GMP Amendment Xxxxxxx 0, 0, 0, 0, 0 xxx 0 xxxxx xx
$236,333,726 and that the GMP is accounted as follows: (a) Preconstruction
Services equals $350,000, (b) the Construction Manager's Lump Sum General
Conditions equals $19,255,989, (c) the Cost of the Work equals $201,318,086, (d)
the Construction Manager's Fee equals $7,428,089 and (e) Contingency equals
$8,331,561.
2. Reference is made to Exhibit "E" Early Release of Retention of the
Agreement Between The Owner and The Construction manager dated May 9, 2005; It
is understood and agreed that said exhibit is modified as follows; No retainage
shall be withheld on formwork materials. Retainage on formwork installation
shall be at 5% until the formwork has reach 50% at which time no further
retainage shall be held. Final retainage shall be released in accordance with
the provisions of Exhibit "E".
OWNER CONSTRUCTION MANAGER
XXXXXXX NATIONAL, LLC PERINI XXXXXXXX JOINT VENTURE
BY XXXXXXX HOTELS, LLC
ITS: SOLE MEMBER
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxx Xxxxx
------------------------------------- ----------------------------------------
(Signature) (Signature)
EVP & CFO Principle in Charge
(Title) (Title)
1
