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R2018-09 Construction Manager at Risk AgreementRESOLUTION 2018-09 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA APPROVING AN AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES WITH THE WEITZ COMPANY, LLC FOR THE CONSTRUCTION OF A NEW CLUBHOUSE AT THE NORTH PALM BEACH COUNTRY CLUB AND AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE AN AGREEMENT FOR SUCH SERVICES; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Village issued a Request for Qualifications for Construction Manager at Risk Services for the construction of new clubhouse at the North Palm Beach Country Club; and WHEREAS, Village Administration established an Evaluation Committee to consider the qualification statements; and WHEREAS, the Committee ranked the submittals and after the top three firms made presentations to the Village Council, the Village Council ranked the firms in order of preference and directed Village Administration to commence negotiations with The Weitz Company, LLC, the top ranked firm; and WHEREAS, the Village Council wishes to approve an Agreement with The Weitz Company, LLC and determines that the adoption of this Resolution is in the best interests of the residents and citizens of the Village of North Palm Beach. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA as follows: Section 1. The foregoing recitals are ratified as true and incorporated herein. Section 2. The Village Council hereby approves an Agreement for Construction Manager at Risk Services with The Weitz Company, LLC for the construction of a new clubhouse at the North Palm Beach Country Club and authorizes the Mayor and Village Cleric to execute the Agreement for such services, a copy of which is attached hereto and incorporated herein. The total cost for the preconstruction services necessary to arrive at a Guaranteed Maximum Price ("GMP") is $27,500.00, with funds expended from Account No. K7600-66210 (Country Club Project — Major Renovation). Section 3. This Resolution shall talce effect immediately upon its adoption. PASSED AND ADOPTED THIS 8TH DAY OF FEBRUARY, 2018. (Village Seal) MAYOR ATTEST: VILLAGE CLERK :1AIA Document A133TM - 2009 Standard Form of Agreement Between Owner and Construction Manager as Constructor where the basis of payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price The Architect retained by the Owner for the Project is: (Name, legal status and address) Peacock + Lewis Architects and Planners, Inc. 1295 US Hwy 1 North Palm Beach, Florida 33408 The Owner's Designated Representative: (Name, address and other information) Chuck Huff, Director of Special Projects 501 US Highway One North Palm Beach, FL 33408 Consultant Joe Gaudet, Gaudet Associates, Inc. 3021 Jupiter Park Circle, Suite 101 Init. AIA Document A133 TM — 2009 (formerly All 21 T""CMc — 2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. I This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2016, and is not for resale. User Notes: (3139ADA213) ADDITIONS AND DELETIONS: AGREEMENT made as of the 81" day of February in the year 2018 The author of this document has (In words, indicate day, month and year.) added information needed for itscompletion. The author may also BETWEEN the Owner: have revised the text of the original (Name, legal status and address) AIA standard form. An Additions and Village of North Palm Beach Deletions Report that notes added 501 US Highway One information as well as revisions to North Palm Beach, FL 33408 the standard form text is available from the author and should be reviewed. A vertical line in the left and the Construction Manager: margin of this document indicates (Name, legal status and address) where the author has added necessary information and where The Weitz Company, LLC the author has added to or deleted 1720 Centrepark Drive East from the original AIA text. West Palm Beach, FL 33401 License # This document has important legal CGC1509819 consequences. Consultation with an attorney is encouraged with respect for the following Project: to its completion or modification. (Name and address or location) AIA Document A201 TPA -2007, General Conditions of the Contract New Golf and Country Club for the Village of North Palm Beach for Construction, is adopted in this 951 US Highway One document by reference. Do not use North Palm Beach, FL 33408 with other general conditions unless this document is modified. The Owner represents and warrants that no federal or state funds are being used to make payments to Contractor for the Work performed hereunder. The Architect retained by the Owner for the Project is: (Name, legal status and address) Peacock + Lewis Architects and Planners, Inc. 1295 US Hwy 1 North Palm Beach, Florida 33408 The Owner's Designated Representative: (Name, address and other information) Chuck Huff, Director of Special Projects 501 US Highway One North Palm Beach, FL 33408 Consultant Joe Gaudet, Gaudet Associates, Inc. 3021 Jupiter Park Circle, Suite 101 Init. AIA Document A133 TM — 2009 (formerly All 21 T""CMc — 2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. I This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2016, and is not for resale. User Notes: (3139ADA213) Jupiter, FL 33458 The Construction Manager's Designated Representative: (Name, address and other information) Dennis Gallagher 1720 Centrepark Drive East West Palm Beach, FL 33401 The Architect's Designated Representative: (Name, address and other information) Brian Idle 1295 US Hwy 1 North Palm Beach, Florida 33408 The Owner and Construction Manager agree as follows. Init. AIA Document A133TM — 2009 (formerly A121 TMCMC — 2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 2 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2018, and is not for resale. User Notes: (3139ADA213) TABLE OF ARTICLES 1 GENERAL PROVISIONS 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES 3 OWNER'S RESPONSIBILITIES 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES 6 COST OF THE WORK FOR CONSTRUCTION PHASE 7 PAYMENTS FOR CONSTRUCTION PHASE SERVICES 8 INSURANCE AND BONDS 9 DISPUTE RESOLUTION 10 TERMINATION OR SUSPENSION 11 MISCELLANEOUS PROVISIONS 12 SCOPE OF THE AGREEMENT (Paragraph Deleted) ARTICLE 1 GENERAL PROVISIONS § 1.1 The Contract Documents The Contract Documents consist of this Agreement, the Owner's Request for Qualifications (RFQ) (pages 1-96, as amended), Addendum 1 and Addendum 2 to the RFQ, Drawings, Specifications, and Addenda issued prior to the execution of this Agreement, other documents listed in this Agreement, and Modifications and the General Conditions of the Contract AIA Document A201-2007, as modified by the parties (the General Conditions) issued after execution of this Agreement, all of which form the Contract and are as fully a part of the Contract as if attached to this Agreement or repeated herein. Upon the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal, the Contract Documents will also include the documents described in Section 2.2.3 and identified in the Guaranteed Maximum Price Amendment and revisions prepared by the Architect and furnished by the Owner as described in Section 2.2.8. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. If anything in the other Contract Documents, other than a Modification, is inconsistent with this Agreement, this Agreement shall govern. § 1.2 Relationship of the Parties The Construction Manager and Owner each accepts the relationship of trust and confidence established by this Agreement and covenants to cooperate with the other and with the Architect. The Construction Manager agrees to exercise Construction Manager's reasonable skill and judgment in furthering the interests of the Project; to furnish efficient construction administration, management services and supervision; 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 Project. The Owner agrees to furnish or approve, in a timely manner, information required by the Construction Manager and to make payments to the Construction Manager in accordance with the requirements of the Contract Documents. Inst. AIA Document A13311 — 2009 (formerly A121 TMCMC — 2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 3 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2018, and is not for resale. User Notes: (369ADA213) § 1.3 General Conditions Unless the parties agree otherwise the amended AIA Document A201T14-2007, General Conditions of the Contract for Construction (the "General Conditions") will be attached as Exhibit C in the GMP Proposal / Amendment. The term "Contractor" shall mean the Construction Manager if indicated in the amended document. ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager's Preconstruction Phase responsibilities are set forth in Sections 2.1 and 2.2. The Construction Manager's Construction Phase responsibilities are set forth in Section 2.3. The Owner and Construction Manager may agree for the Construction Phase to commence prior to completion of the Preconstruction Phase, in which case, both phases will proceed concurrently. The Construction Manager shall identify a representative authorized to act on behalf of the Construction Manager with respect to the Project. § 2.1 Preconstruction Phase § 2.1.1 The Construction Manager shall provide a preliminary evaluation of the Owner's program, schedule and construction budget requirements, each in terms of the other. § 2.1.2 Consultation The Construction Manager shall schedule and conduct meetings with the Architect and Owner to discuss such matters as procedures, progress, coordination, and scheduling of the Work. The Construction Manager shall consult with the Owner and the Architect on proposed site use and improvements, selection of materials, and building systems and equipment. The Construction Manager shall also provide recommendations consistent with the Project requirements to the Owner and Architect on constructability; availability of materials and labor; time requirements for procurement, installation and construction; and factors related to construction cost including, but not limited to, estimates of alternative designs or materials, preliminary budgets, life -cycle data, and possible cost reductions. Owner agrees that such services are advisory and not professional design set -vices. The Owner will refer all such questions, recommendations, matter and inquiries to the Architect as appropriate, who shall then advise the Owner if an additive or deductive adjustment is applicable to the Architect's contract. § 2.1.3 When Project requirements in Section 3.1.1 have been sufficiently identified, the Construction Manager shall prepare and periodically update a Project schedule for the Architect's review and the Owner's acceptance. The Construction Manager shall obtain the Architect's approval for the portion of the Project schedule relating to the performance of the Architect's services. The Project schedule shall coordinate and integrate the Construction Manager's services, the Architect's services, other Owner consultants' services, and the Owner's responsibilities and identify items that could affect the Project's timely completion. The updated Project schedule shall include the following: submission of the Guaranteed Maximum Price proposal; proposed activity sequences and durations of the Work; milestone dates for receipt and approval of pertinent information; delivery of products requiring long -lead time procurement; and the occupancy requirements of the Owner. §1.1.4 Phased Construction The Construction Manager shall provide recommendations with regard to accelerated or fast-track scheduling, procurement, or phased construction. The Construction Manager shall take into consideration cost reductions, cost information, constructability, provisions for temporary facilities and procurement and construction scheduling issues. § 2.1.5 Preliminary Cost Estimates § 2.1.5.1 Based on the preliminary design and other design criteria prepared by the Architect, the Construction Manager shall prepare preliminary estimates of the Cost of the Work or the cost of program requirements using area, volume or similar conceptual estimating techniques for the Architect's review and Owner's approval. If the Architect or Construction Manager suggest alternative materials and systems, the Construction Manager shall provide cost evaluations of those alternative materials and systems. § 2.1.5.2 As the Architect progresses with the preparation of the Construction Documents that will be issued for subcontractor bidding, the Construction Manager shall prepare and update estimates of the Cost of the Work of increasing detail and refinement, including a scope clarification checklist, and allowing for the further development of the design until such time as the Owner and Construction Manager agree that the Construction Documents are fully coordinated between all design consultants, are 100% complete, and ready for proper preparation of a Guaranteed Maximum Price for the Work. An initial estimate will be based on the design documents issued to the Init. AIA Document A133 TM — 2009 (formerly A121 TMCMc — 2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 4 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2016, and is not for resale. User Notes: (3139ADA213) Construction Manager that were titled "Permit Set". A second estimate will be conducted in conjunction with the preparation of the GMP Proposal with the fully coordinated 100% complete Construction Documents. Any subsequent estimating will be performed as necessary to achieve acceptance of the GMP. Such estimates shall be provided for the Architect's review and the Owner's approval. The Construction Manager shall inform the Owner and Architect when estimates of the Cost of the Work exceed the latest approved Project budget and make recommendations for corrective action. The scope clarification checklist ("checklist") shall endeavor to identify all significant changes in scope, systems, kind and quality of materials, finishes, or equipment which adjust the prior approved budget. Such checklist shall identify such changes and Construction Manager's best estimates of the cost impacts of such changes. The Construction Manager may issue to the Architect and the Owner Requests for Information (RFIs) during the Preconstruction Phase if the Construction Manager has the opinion that a certain portion of the design documents may be ambiguous or lacking clarity for a subcontractor to properly interpret the design when bidding and/or constructing the intended work. § 2.1.6 Subcontractors and Suppliers The Construction Manager shall develop bidders' interest in the Project and manage the procurement process in accordance with the terms and conditions of the RFQ. § 2.1.7 The Construction Manager shall recommend to the Architect and the Owner, a procurement schedule for long -lead time items. Such long -lead-time items shall be procured by the Construction Manager after the Owner's approval. If the Owner agrees to procure any items prior to the establishment of the Guaranteed Maximum Price, the Owner shall procure the items on terms and conditions mutually acceptable to the Owner and the Construction Manager. § 2.1.8 Extent of Responsibility The Construction Manager shall exercise reasonable care in preparing schedules and estimates. The Construction Manager, however, does not warrant or guarantee estimates and schedules except as may be included as part of the Guaranteed Maximum Price. The Construction Manager is not required to ascertain that the Drawings and Specifications are in accordance with applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, but the Construction Manager shall promptly report to the Architect and Owner any nonconformity discovered by or made known to the Construction Manager as a request for information in such form as the Architect may require. § 2.1.9 Notices and Compliance with Laws The Construction Manager shall comply with applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities applicable to its performance under this Contract, and with equal employment opportunity programs, and other programs as may be required by governmental and quasi -governmental authorities for inclusion in the Contract Documents. § 2.2 Guaranteed Maximum Price Proposal and Contract Time § 2.2.1 At a time to be mutually agreed upon by the Owner and the Construction Manager and in consultation with the Architect, the Construction Manager shall prepare a Guaranteed Maximum Price proposal for the Owner's review and acceptance. The Guaranteed Maximum Price in the proposal shall be the sum of the Construction Manager's estimate of the Cost of the Work, including contingencies described in Section 2.2.4, and the Construction Manager's Fee. § 2.2.2 To the extent that the Drawings and Specifications are anticipated to require further development by the Architect, the Construction Manager shall provide in the Guaranteed Maximum Price for such further development consistent with the Contract Documents and reasonably inferable therefrom. Such further development does not include such things as changes in scope, systems, kinds and quality of materials, finishes or equipment, all of which, if required, shall be incorporated by Change Order. Such further development shall be addressed as a Construction Manager's contingency, as provided under Section 2.2.4 However, if the final drawings and specifications require performance of the Work in any manner different from the clarifications and assumptions stated by Construction Manager in its GMP proposal, or contain changes in scope, systems, kinds and quality of materials, finishes or equipment, Construction Manager shall as soon as practicable notify Owner thereof and of Construction Manager's estimate of the resulting increase or decrease in the GMP. At such time Owner and Construction Manager have agreed upon the effect of such differences and/or changes, a Change Order shall be issued substituting the final Init. AIA Document A133TM — 2009 (formerly A121 TMCMc — 2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA' S Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2018, and is not for resale. User Notes: (3139ADA213) drawings and specifications for those described in the Agreement and the GMP and Contract Time shall be adjusted as agreed by the parties. If Owner and Contractor are unable to agree on such adjustments, this Agreement may be terminated by Owner per Article 10. § 2.2.3 The Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement of its basis, which shall include the following: 1 A list of the Drawings and Specifications, including all Addenda thereto, and the Conditions of the Contract, which were used in preparation of the Guaranteed Maximum Price proposal; .2 A list of the clarifications and assumptions made by the Construction Manager in the preparation of the Guaranteed Maximum Price Proposal; .3 The proposed Guaranteed Maximum Price, including a statement of the estimated Cost of the Work organized by trade categories or systems, allowances, contingency, and the Construction Manager's Fee; ,4 The date of commencement of the Work and date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based; and .5 A date by which the Owner must accept the Guaranteed Maximum Price. § 2.2.4 In preparing the Construction Manager's Guaranteed Maximum Price proposal, the Construction Manager shall include an agreed amount as the Construction Contingency, shown as a line item, which is included for the purpose of defraying expenses due to unforeseen circumstances relating to construction. Unforeseen circumstances may include, but are not limited to, trade contractor scope gaps, trade contractor scope interpretation issues, reconciliation of allowances, reconciliation of Owner direct purchase/sales tax savings adjustments, contract default by trade contractors, and unforeseen field conditions. The Construction Manager will obtain Owner's written authorization for Contingency Fund use and then will provide appropriate documentation evidencing the expenditures. § 2.2.5 The Construction Manager shall meet with the Owner and Architect to review the Guaranteed Maximum Price proposal. In the event that the Owner and Architect discover any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis, or both. § 2.2.6 Unless the Owner notifies the Construction Manager that the Owner has accepted the Guaranteed Maximum Price proposal in writing before the date specified in the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price proposal shall not be deemed effective without written acceptance by the Construction Manager. Following acceptance of a Guaranteed Maximum Price, the Owner and Construction Manager shall execute the Guaranteed Maximum Price Amendment amending this Agreement, a copy of which the Owner shall provide to the Architect. The Guaranteed Maximum Price Amendment shall set forth the agreed upon Guaranteed Maximum Price with the information and assumptions upon which it is based. § 2.2.7 The Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work prior to the commencement of the Construction Phase, unless the Owner provides prior written authorization for such costs, except such preconstruction services paid to Construction Manager pursuant to Article 4. § 2.2.8 The Owner shall authorize the Architect to provide the revisions to the Drawings and Specifications to incorporate the agreed-upon assumptions and clarifications contained in the Guaranteed Maximum Price Amendment. The Owner shall promptly furnish those revised Drawings and Specifications to the Construction Manager as they are revised. The Construction Manager shall notify the Owner and Architect of any inconsistencies actually discovered between the Guaranteed Maximum Price Amendment and the revised Drawings and Specifications. § 2.2.9 The Construction Manager shall include in the Guaranteed Maximum Price all sales, consumer, use and similar taxes for the Work provided by the Construction Manager that are legally enacted at the time the Guaranteed Maximum Price Amendment is executed. Inst. AIA Document A133TM — 2009 (formerly A121 TMCMc — 2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 6 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2018, and is not for resale. User Notes: (3B9ADA2B) § 2.3 Construction Phase § 2.3.1 General § 2.3.1.1 The date of commencement of the Work shall mean the date of commencement of the Construction Phase. § 2.3.1.2 The Construction Phase shall commence upon the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed. § 2.3.1.3 DATE OF COMMENCEMENT The date of commencement of the Construction Phase of the Work shall be 7 days after the latest of. (1) the date established by a Notice to Proceed issued by the Owner; or (2) the date all governmental permits and approvals necessary to commence and continue the Work without interruption are received. If the date of commencement is later than [30] days after the Guaranteed Maximum Price is established, the Contract Sum and Contract Time shall be equitably adjusted. § 2.3.1.4 CONTRACT TIME The Contract Time shall be measured in calendar days from the date of commencement. § 2.3.1.5 SUBSTANTIAL COMPLETION The Construction Manager shall achieve Substantial Completion of the entire Work not later than the number of days from the date of commencement established in the GMP Amendment subject to adjustments of this Contract Time as provided in the Contract Documents. § 2.3.1.6 1. If the Work is not substantially complete after the agreed Date of Substantial Completion as adjusted as provided in the Contract Documents, by reason of the fault or neglect of the Construction Manager or any person performing the Work under a contract with the Construction Manager, the Owner and Construction Manager acknowledge and agree, after a full discussion of the implications of this paragraph, that it would be impractical and extremely difficult to estimate the damages including, by way of example but without limitation, direct and indirect, incidental, special and consequential damages which the Owner might suffer. 1. Therefore, the Owner and Construction Manager have determined that a reasonable estimate of the total detriment that the Owner would suffer if the Work is not substantially complete on Date of Substantial Completion will not exceed ($1,000.00) per calendar day. Total detriment that the Owner would suffer if the established Final Completion Date is not achieved will not exceed ($250.00) per calendar day. The amount so determined herein supersedes and replaces in its entirety the first two paragraphs under "Failure To Complete The Work On Time" per RFQ page 60 and shall be the sole and exclusive remedy for delays whether at law or in equity and shall be the full, agreed and liquidated damages recoverable against Construction Manager by the Owner for all claims, damages, remedies relating to timely performance and completion. All other claims, damages, or other remedies relating to timely performance and completion, however caused, are expressly waived by the Owner against Construction Manager, for and on behalf of the Owner for and on behalf of itself, its successors, assigns and any and all other parties claiming by, through or under the Owner. 1. If Construction Manager is required to pay liquidated damages to the Owner pursuant to this paragraph, such amounts shall be paid by offset against any retention amounts or other sums remaining to be paid to the Construction Manager- by the Owner which are still retained by the Owner, and the balance, if any, shall be paid to the Owner by the Construction Manager at the time final payment is otherwise required to be made to the Construction Manager under Section 7.2. § 2.3.2 Administration § 2.3.2.1 Those portions of the Work that the Construction Manager does not customarily perform with the Construction Manager's or its related parties' own personnel shall be performed under subcontracts or by other appropriate agreements with the Construction Manager. The Owner may designate specific persons from whom, or entities from which, the Construction Manager shall obtain bids; however, if the Guaranteed Maximum Price has been established, the Owner may not prohibit the Construction Manager from obtaining bids from other qualified bidders. The Construction Manager shall obtain bids from Subcontractors and from suppliers of materials or Inst. AIA Document A133Tm —2009 (formerly A121 TMCMc — 2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® % Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2018, and is not for resale. User Notes: (3139ADA213) equipment fabricated especially for the Work. The Construction Manager and Owner shall then determine which bids will be accepted. The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection. § 2.3.2.2 Not Used § 2.3.2.3 Subcontracts or other agreements shall conform to the applicable payment provisions of this Agreement, and shall not be awarded on the basis of cost plus a fee without the prior consent of the Owner. If the Subcontract is awarded on a cost-plus a fee basis, the Construction Manager shall provide in the Subcontract for the Owner to receive the same audit rights with regard to the Subcontractor as the Owner receives with regard to the Construction Manager in Section 6.11 below. § 2.3.2.4 If the Construction Manager recommends a specific bidder that may be considered a "related party" according to Section 6. 10, then the Construction Manager shall promptly notify the Owner in writing of such relationship and notify the Owner of the specific nature of the contemplated transaction, according to Section 6.10.2 § 2.3.2.5 The Construction Manager shall schedule and conduct weekly meetings to discuss such matters as procedures, progress, coordination, scheduling, and status of the Work. The Construction Manager shall prepare and promptly distribute minutes to the Owner and Architect § 2.3.2.6 Within 30 days after the execution of the Guaranteed Maximum Price Amendment, the Construction Manager shall prepare and submit to the Owner and Architect a construction schedule for the Work and submittal schedule in accordance with the Contract Documents. Construction Manager will include a milestone schedule indicating the overall project duration as a component of the GMP Proposal. § 2.3.2.7 The Construction Manager shall record the progress of the Project. On a monthly basis, or otherwise as agreed to by the Owner, the Construction Manager shall submit written progress reports to the Owner and Architect showing percentages of completion and other information required by the Owner. The Construction Manager shall also keep, and make available to the Owner and Architect, a daily log containing a record for each day of weather, portions of the Work in progress, number of workers on site, identification of equipment on site, problems that might affect progress of the work, accidents, injuries, and other information required by the Owner. § 2.3.2.8 The Construction Manager shall develop a system of cost control for the Work, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. The Construction Manager shall identify variances between actual and estimated costs and report the variances to the Owner and Architect and shall provide this information in its monthly reports to the Owner and Architect, in accordance with Section 2.3.2.7 above. § 2.4 Professional Services Not used in Preconstruction Phase § 2.5 Hazardous Materials Not used in Preconstruction Phase § 2.6 Design/Build Services: The Construction Manager shall procure certain design and engineering services by contracting with architects, engineers and/or design/build subcontractors for fire sprinklers, roof trusses, and hollow core planks [if applicable, other services will be indicated in the GMP Amendment] (hereinafter referred to as Design/Build Subcontractors). Design and engineering services shall be as defined in the agreement between the Design/Build Subcontractors and Construction Manager and hereinafter shall be referred to as "Design/Build Design Services". The Construction Manager shall administer the performance of the Design/Build Design Services by the Design/Build Subcontractors. The Owner acknowledges and agrees that the Construction Manager does not possess the special qualifications and licenses that are required to perforin the Design/Build Design Services but that Construction Manager shall have the Design/Build Design Services performed by Design/Build Subcontractors that are so licensed and qualified. Init. AIA Document A133TM — 2009 (formerly A121 `CMc — 2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 8 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2018, and is not for resale. User Notes: (3139ADA28) ARTICLE 3 OWNER'S RESPONSIBILITIES § 3.1 Information and Services Required of the Owner § 3.1.1 The Owner shall provide information with reasonable promptness, regarding requirements for and limitations on the Project, which shall set forth the Owner's objectives, constraints, and criteria, including schedule, space requirements and relationships, flexibility and expandability, special equipment, systems sustainability and site requirements. § 3.1.2 Not Used § 3.1.3 The Owner shall establish and periodically update the Owner's budget for the Project, including (1) the budget for the Cost of the Work as defined in Section 6.1.1, (2) the Owner's other costs, and (3) reasonable contingencies related to all of these costs. If the Owner significantly increases or decreases the Owner's budget for the Cost of the Work, the Owner shall notify the Construction Manager and Architect. The Owner and the Architect, in consultation with the Construction Manager, shall thereafter agree to a corresponding change in the Project's scope and quality. § 3.1.4 Structural and Environmental Tests, Surveys and Reports. During the Preconstruction Phase, the Owner shall furnish the following information or services with reasonable promptness. The Owner shall also furnish any other information or services under the Owner's control and relevant to the Construction Manager's performance of the Work with reasonable promptness after receiving the Construction Manager's written request for such information or set -vices. The Construction Manager shall be entitled to rely on the accuracy of information and services furnished by the Owner but shall exercise proper precautions relating to the safe performance of the Work. § 3.1.4.1 The Owner shall furnish tests, inspections and reports required by law and as otherwise agreed to by the parties, such as structural, mechanical, and chemical tests, tests for air and water pollution, and tests for hazardous materials. § 3.1.4.2 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; designated wetlands; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data with respect to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a Project benchmark. § 3.1.4.3 The Owner, when such services are requested, shall furnish services of geotechnical engineers, which may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, seismic evaluation, ground corrosion tests and resistivity tests, including necessary operations for anticipating subsoil conditions, with written reports and appropriate recommendations. § 3.1.4.4 During the Construction Phase, the Owner shall furnish information or services required of the Owner by the Contract Documents with reasonable promptness. The Owner shall also furnish any other information or services under the Owner's control and relevant to the Construction Manager's performance of the Work with reasonable promptness after receiving the Construction Manager's written request for such information or services. § 3.2 Owner's Designated Representative The Owner shall identify a representative authorized to act on behalf of the Owner with respect to the Project. The Owner's representative shall render decisions promptly and furnish information expeditiously, so as to avoid unreasonable delay in the services or Work of the Construction Manager. Except as otherwise provided in the Contract Documents, the Architect does not have such authority. The term "Owner" means the Owner or the Owner's authorized representative. § 3.2.1 Legal Requirements. To the extent not designated to the Construction Manager by the Contract Documents, the Owner shall furnish all legal, insurance and accounting services that may be reasonably necessary at any time for the Project to meet the Owner's needs and interests. AIA Document A133 T11 — 2009 (formerly A121 TMCMc — 2003). Copyright © 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. Init. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 9 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2018, and is not for resale. User Notes: (369ADA213) § 3.3 Architect The Owner shall retain an Architect to provide services, duties and responsibilities as described in the Agreement between the Owner and the Architect. The Owner shall provide the Construction Manager a complete copy of the executed agreement between the Owner and the Architect, any further modifications to the Architect's Agreement, and the Architect's professional liability policy. ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES § 4.1 Compensation § 4.1.1 For the Construction Manager's Preconstruction Phase services, the Owner shall compensate the Construction Manager as follows: § 4.1.2 For the Construction Manager's Preconstruction Phase services described in Sections 2.1 and 2.2 and 2.6, the Construction Manager's compensation shall be calculated as follows: (Insert amount of, or basis for, compensation and include a list of reimbursable cost items, as applicable) Lump sum amount of $27,500. § 4.1.3 If the Preconstruction Phase services covered by this Agreement have not been completed within Five5 months of the date of this Agreement, through no fault of the Construction Manager, the Construction Manager's compensation for Preconstruction Phase services shall be equitably adjusted. (Paragraph Deleted) § 4.2 Payments § 4.2.1 Unless otherwise agreed, payments under this Agreement for services shall be made in three (3) payments due at the following intervals: 151 payment of $7,500.00 shall be due 30 days after formal approval of this Agreement. 2nd payment of $10,000.00 shall be due 60 days after formal approval of this Agreement. 3rd payment of $10,000.00 shall be due 20 days after submittal of the GMP Proposal.Construction Manager will provide an appropriate invoice to facilitate payments. (Paragraph Deleted) § 4.2.2 Not Used ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES § 5.1 For the Construction Manager's performance of the Work as described in Section 2.3, the Owner shall pay the Construction Manager the Contract Sum in current funds for the Construction Manager's perforinance of the Contract. The Contract Sum is the Cost of the Work as defined in Article 6 plus the Construction Manager's Fee. § 5.1.1 The Construction Manager's Fee will be 4.9% of the Cost of the Work . Such fee will be fixed as a "lump sum" upon establishment of the Guaranteed Maximum Price. (State a lump sum, percentage of Cost of the Work or other provision, for determining the Construction Manager's Fee.) § 5.1.2 The method of adjustment of the Construction Manager's Fee for added items shall be 4.9% of the estimated increased Cost of the Work. There shall be no change in the Construction Manager's Fee for deleted items. § 5.1.3 Limitations, if any, on a Subcontractor's overhead and profit for increases in the cost of its portion of the Work: Init. AIA Document A133TI — 2009 (formerly A121 TMCMc — 2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 1 U Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. t This document was produced by AIA software at 14:59:44 on 02/02/2016 under Order No. 9366404636 which expires on 05/20/2016, and is not for resale. User Notes: (369ADA213) 10% overhead plus 5% profit plus bond if applicable § 5.1.4 Rental rates for Construction Manager -owned equipment shall be reimbursed as provided in the GMP Amendment. . § 5.1.5 Unit prices, if any, will be indicated in the GMP Amendment, if applicable. (Idents and state the unit price; state the quantity limitations, if any, to which the unit price will be applicable) Item Units and Limitations Price per Unit ($0.00) § 5.2 Guaranteed Maximum Price § 5.2.1 The Construction Manager guarantees that the Contract Sum shall not exceed the Guaranteed Maximum Price set forth in the Guaranteed Maximum Price Amendment, as it is amended from time to time. To the extent the Cost of the Work exceeds the Guaranteed Maximum Price, subject to additions and deletions by Change Order or Construction Change Directive, the Construction Manager shall bear such costs in excess of the Guaranteed Maximum Price without reimbursement or additional compensation from the Owner. (Paragraph Deleted) § 5.2.2 The Guaranteed Maximum Price is subject to additions and deductions by Change Order and Construction Change Directives as provided in the Contract Documents and the Date of Substantial Completion shall be subject to adjustment as provided in the Contract Documents. § 5.2.3 If the actual Cost of the Work plus the Construction Manager's Fee is less than the Guaranteed Maximum Price, as adjusted as provided herein, such difference ("Savings") shall accrue [_100_1 % to the Owner. The amount of Savings shall be initially determined by the Construction Manager and submitted to the Owner as part of the final Application for Payment as described in Section 7.2. § 5.2.4 The Owner acknowledges that, except for the General Conditions or as may be otherwise specifically provided in this Agreement, the Guaranteed Maximum Price limitation to be adopted in GMP Amendments applies in the aggregate to all Cost of the Work and Construction Manager's Fee and shall not apply individually to any line item or other separate category of cost or fee. § 5.2.5 As increments are added by GMP Amendments, the Guaranteed Maximum Price shall be the aggregate of the incremental Guaranteed Maximum Prices approved by the Owner to that point in time and each incremental Guaranteed Maximum Price shall not be a separate Guaranteed Maximum Price. § 5.2.6 The Construction Manager's General Conditions cost shall be agreed upon and established in the GMP Amendment. The Construction Manager's General Conditions costs for purposes of this clause shall be established as a lump sum and include project staffing cost and only those line items performed directly by Construction Manager's personnel or purchased directly by the Construction Manager. Costs generally performed by Subcontractors and included in subcontract agreements or purchase orders will be categorized as General Requirements and be accounted for as Cost of the Work. § 5.3 Changes in the Work § 5.3.1 The Owner may, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions. The Owner shall issue such changes in writing. The Architect may make minor changes in the Work as provided in the Contract Documents. The Construction Manager shall be entitled to an equitable adjustment in the Contract Time and Guaranteed Maximum Price as a result of changes in the Work. § 5.3.2 Not used in Preconstruction Phase Inst. AIA Document A1331"— 2009 (formerly A121 T""CMc — 2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 11 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2018, and is not for resale. User Notes: (3139ADA213) § 5.3.3 Not Used § 5.3.4 Not Used § 5.3.5 Not Used ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE (Paragraph Deleted) § 6.1.1 The term Cost of the Work shall mean costs 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 at the place of the Project except with prior consent of the Owner. § 6.1.2 Where any cost is subject to the Owner's prior approval, the Construction Manager shall obtain this approval prior to incurring the cost. The parties shall endeavor to identify any such costs prior to executing Guaranteed Maximum Price Amendment. § 6.2 Labor Costs (to be included in GMP) § 6.2.1 Wages and salaries of construction workers directly employed by the Construction Manager to perform the construction of the Work at the site or at off-site workshops and to make pickups and deliveries for the ProjectJ1 § 6.2.2 Wages or salaries of the Construction Manager's supervisory and administrative personnel will be included in the General Conditions category in the GMP Proposal as a lump sum per 5.2.6. § 6.2.3 Not used. § 6.2.4 Costs paid or incurred by the Construction Manager for (i) taxes, insurance, and unemployment contributions, at agreed charging rate burden of 45% that includes customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based on wages and salaries included in the Cost of the Work under Section 6.2.1. § 6.2.5 Not Used § 6.3 Subcontract Costs (to be included in GMP) Payments made by the Construction Manager to or for Subcontractors in accordance with the requirements of the subcontracts. § 6.4 Costs of Materials and Equipment Incorporated in the Completed Construction (to be included in GMP) § 6.4.1 Costs, including transportation and storage, of materials and equipment incorporated or to be incorporated in the completed construction. § 6.4.2 Costs of materials described in the preceding Section 6.4.1 in excess of those actually installed to allow for reasonable waste and spoilage. Unused excess materials, if any, shall become the Owner's property at the completion of the Work or, at the Owner's option, shall be sold by the Construction Manager. Any amounts realized from such sales shall be credited to the Owner as a deduction from the Cost of the Work. § 6.5 Costs of Other Materials and Equipment, Temporary Facilities and Related Items (to be included in GMP) § 6.5.1 Costs of transportation, storage, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment and hand tools not customarily owned by construction workers that are provided by the Construction Manager at the site and fully consumed in the performance of the Work. Costs of materials, supplies, temporary facilities, machinery, equipment and tools that are not fully consumed shall be based on the cost or value of the item at the time it is first used on the Project site less the value of the item when it is no longer used at the Project site unless Owner and Construction Manager otherwise agree. Costs for items not fully Inst. AIA Document A133 TM — 2009 (formerly A121 TMCMc — 2003). Copyright © 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIM'12 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2018, and is not for resale. User Notes: (3139ADA26) consumed by the Construction Manager shall mean fair market value unless Owner and Construction Manager otherwise agree. § 6.5.2 Rental charges for temporary facilities, machinery, equipment and hand tools not customarily owned by construction workers (including Construction Manager -owned and/or third party rentals) that are provided by the Construction Manager at the site and costs of storage, transportation, installation, minor repairs, dismantling and removal. Rental charges for equipment shall be as per agreed charging rates as listed in Exhibit D. § 6.5.3 Costs of removal of debris from the site of the Work and its proper and legal disposal. § 6.5.4 Costs of document reproductions, postage and parcel delivery charges, telephone service at the site, drones, photography, office equipment and supplies, and reasonable petty cash expenses of the site office. § 6.5.5 Not Used § 6.5.6 Costs of materials and equipment suitably stored off the site at a mutually acceptable location, subject to the Owner's prior approval. § 6.6 Miscellaneous Costs (to be included in the GMP) § 6.6.1 Premiums for insurance and bonds required by the Contract Documents or otherwise related to the Project that can be directly attributed to this Contract at the agreed charging rates listed in the GMP. The Construction Manager may adjust these agreed charging rates for insurance when policies are renewed. If Construction Manager utilizes a CLIP, the CCIP Manual, enrollment process, and any special provisions required in subcontracts will be incorporated in the bidding and procurement process. § 6.6.2 Sales, use or similar taxes imposed by a governmental authority that are related to the Work and for which the Construction Manager or its lower tiers are liable. § 6.6.3 Fees and assessments for the building permit and for other permits, licenses and inspections for which the Construction Manager is required by the Contract Documents to pay. § 6.6.4 Fees of laboratories for tests required by the Contract Documents, except those related to defective or nonconforming Work for which reimbursement is excluded by the Contract Documents. Costs for peer review consultants to review design services performed by or for Owner or Architect. If performed, such peer review shall be without Contractor assuming any liability or responsibility for design. Costs for special tests or inspections, such as monitoring vibration transmissions that may impact adjoining properties. § 6.6.5 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 such requirement of the Contract Documents; and 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. However, such costs of legal defenses, judgments and settlements shall not be included in the calculation of the Construction Manager's Fee or subject to the Guaranteed Maximum Price. If such royalties, fees and costs are excluded by other provisions of the Contract Documents, then they shall not be included in the Cost of the Work. § 6.6.6 Costs for data processing, including electronic equipment and software costs, directly related to the Work at agreed charging rates listed in the GMP. § 6.6.7 Not Used § 6.6.8 Legal, mediation and arbitration costs, including attorneys' fees, other than those arising from disputes between the Owner and Construction Manager, reasonably incurred by the Construction Manager after the execution of this Agreement in the performance of the Work and with the Owner's prior approval, which shall not be unreasonably withheld. § 6.6.9 Not Used Init. AIA Document A133 TM — 2009 (formerly All 21 TMCMc — 2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 13 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2018, and is not for resale. User Notes: (3139ADA213) 6.6.10 Utility costs, including but not limited to water, gas, oil, electricity, weather protection, temporary toilets, protection and altering of public utilities, protection and repairs of existing or adjoining property, rental property for storage materials and equipment or parking, expenses related to advertising and hiring construction workers for this Project, costs related to Construction Manager's drug free workplace and safety policies for this Project, vehicle allowances and mileage reimbursement, and CPM scheduling costs. § 6.7 Other Costs and Emergencies § 6.7.1 Not Used § 6.7.2 Costs incurred in taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property, as provided in the Contract Documents. § 6.7.3 Costs of repairing or correcting damaged, defective or nonconforming Work executed by the Construction Manager, Subcontractors or suppliers, provided that such damaged, defective or nonconforming Work was not caused by negligence or failure to fulfill a specific responsibility of the Construction Manager and only to the extent that the cost of repair or correction is not recovered by the Construction Manager from Subcontractors, suppliers or their insurers and sureties. § 6.7.4 Not Used § 6.8 Costs Not To Be Reimbursed § 6.8.1 The Cost of the Work shall not include the items listed below: .1 Salaries and other compensation of the Construction Manager's personnel stationed at the Construction Manager's principal office or offices other than the site office, except as specifically provided in Section 6.2, or as may be provided in Article 11; .2 Expenses of the Construction Manager's principal office and offices other than the site office except as may be included in Sections 6.1 to 6.7; .3 Overhead and general expenses, except as may be expressly included in Sections 6.1 to 6.7; .4 The Construction Manager's capital expenses, including interest on the Construction Manager's capital employed for the Work; .5 Except as provided in Section 6.7.3 of this Agreement, costs due to the negligence or failure of the Construction Manager, Subcontractors and suppliers or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable to fulfill a specific responsibility of the Contract; .6 Any cost not specifically and expressly described in Sections 6.1 to 6.7; .7 Costs, other than costs included in Change Orders or Construction Change Directives approved by the Owner, that would cause the Guaranteed Maximum Price to be exceeded. (Paragraph Deleted) § 6.9 Discounts, Rebates and Refunds § 6.9.1 Not Used § 6.9.2 Not Used § 6.10 Related Party Transactions § 6.10.1 For purposes of Section 6. 10, the term "related party" shall mean a parent, subsidiary, affiliate or other entity having common ownership or management with the Construction Manager in excess of ten percent in the aggregate. § 6.10.2 If any of the costs to be reimbursed arise from a transaction between the Construction Manager and a related party, the Construction Manager shall notify the Owner of the specific nature of the contemplated transaction, including the identity of the related party and the anticipated cost to be incurred, before any such transaction is consummated or cost incurred. If the Owner, after such notification, authorizes the proposed transaction, then the cost incurred shall be included as a cost to be reimbursed, and the Construction Manager shall procure the Work, Inst. AIA Document A13311 —2009 (formerly A121 TMCMc — 2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 14 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2018, and is not for resale. User Notes: (369ADA26) equipment, goods or service from the related party, as a Subcontractor, according to the terms of Sections 2.3.2.1, and 2.3.2.3. If the Owner fails to authorize the transaction, the Construction Manager shall procure the Work, equipment, goods or service from some person or entity other than a related party according to the terms of Sections 2.3.2.1, and 2.3.2.3. § 6.10.3 Construction Manager provides notice to Owner that Construction Manager may obtain services from related parties for securing bonds and to assist with estimating and purchasing major material and equipment items. The parties that may participate on the project are Construction Surety & Insurance Services, LLC and Weitz Supply Chain. Any purchasing assisted by Weitz Supply Chain through their Preferred Supplier Network will be coordinated with Owner's procurement requirements. § 6.11 Accounting Records The Construction Manager shall keep full and detailed records and accounts related to the Cost of the Work and exercise such controls as may be necessary for proper financial management under this Contract and to substantiate all Cost of the Work incurred. The accounting and control systems shall be satisfactory to the Owner. The Owner and the Owner's auditors shall, during regular business hours and upon reasonable notice, be afforded access to, and shall be permitted to audit and copy, the Construction Manager's records and accounts, including complete documentation supporting accounting entries, books, correspondence, instructions, drawings, receipts, subcontracts, Subcontractor's proposals, purchase orders, vouchers, memoranda and other data relating to this Contract. The Construction Manager shall preserve these records for a period of three years after final payment, or for such longer period as may be required by law. ARTICLE 7 PAYMENTS FOR CONSTRUCTION PHASE SERVICES § 7.1 Progress Payments § 7.1.1 Based upon Applications for Payment submitted to the Owner and Architect by the Construction Manager and Certificates for Payment issued by the Architect as the Owner's agent for such purposes, the Owner shall make progress payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents. § 7.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month. § 7.1.3 Provided that an Application for Payment is received by the Owner and Architect not later than the first day of a month, the Architect will certify such Application for Payment within 10 days and the Owner shall make payment of the certified amount to the Construction Manager not later than twenty (20) days after the Application for Payment is so certified by the Architect as the Owner's agent for such purpose. If an Application for Payment is received by the Owner and Architect after the application date fixed above, the Architect will certify no later than 10 days after receipt and payment shall be made by the Owner not later than twenty (20) days after the Application for Payment is certified by the Architect as the Owner's agent for such purposes. Payments may be subject to other requirements as stated in the RFQ, the Florida Prompt Payment Law and as the parties may agree on a standard procedure. § 7.1.4 Not used § 7.1.5 Each Application for Payment shall be based on 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 among the various portions of the Work, except that the Construction Manager's Fee shall be shown as a single separate item. This schedule shall be used as a basis for reviewing the Construction Manager's Applications for Payment. § 7.1.6 Applications for Payment shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage of completion shall be the percentage of that portion of the Work that has actually been completed. Inst. AIA Document A133TM — 2009 (formerly All 21 TMCMc — 2003). Copyright © 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 15 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. t This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2018, and is not for resale. User Notes: (3139ADA213) § 7.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: .1 Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage of completion of each portion of the Work by the share of the Guaranteed Maximum Price 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 not in dispute shall be included as provided in the Contract Documents; .2 Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably 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; .3 Add the Construction Manager's Fee . The Construction Manager's Fee shall be computed upon the Cost of the Work at the rate stated in Section 5.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Section, shall be an amount that bears the same ratio to that fixed -sum fee as the Cost of the Work bears to a reasonable estimate of the probable Cost of the Work upon its completion; .4 Add that portion of the Guaranteed Maximum Price allocated for Construction Manager's supervisory and administrative personnel assigned to the Project and those miscellaneous costs categorized as General Conditions. Project staff costs and General Conditions shall be paid in equal monthly payments, with the exception of bonds and insurance cost, which shall be paid in full on the first Application for Payment after commencement of the Construction Phase; .5 Subtract the aggregate of previous payments made by the Owner; .6 Subtract the shortfall, if any, resulting from errors subsequently discovered by the Construction Manager or Owner from documentation from prior Applications for Payment; and .7 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in the Contract Documents. § 7.1.8 The Owner and Construction Manager shall agree upon (1) a mutually acceptable procedure for review and approval of payments to Subcontractors and (2) the percentage of retainage held on Subcontracts, and the Construction Manager shall execute subcontracts in accordance with those agreements. This agreed retainage is ten percent (10%). § 7.1.9 Unless required by the terms of the purchase documents, and otherwise except with the Owner's prior approval, the Construction Manager- shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. § 7.1.10 In taking action on the Construction Manager's Applications for Payment, the Architect 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 has made a detailed examination, audit or arithrnetic verification of the documentation; that the Architect has made exhaustive or continuous on-site inspections; or that the Architect has made examinations to ascertain how or for what purposes the Construction Manager has used amounts previously paid on account of the Contract. Such examinations, audits and verifications, if required by the Owner, will be performed by the Owner's auditors acting in the sole interest of the Owner. § 7.1.11 When the Work reaches 50% completion, one-half of any retainage then held shall be paid to Construction Manager with the next Application for Payment and retainage on all future progress payments shall be reduced to 5%. § 7.1.12 Not Used Init. AIA Document A13311 — 2009 (formerly A121 TMCMC — 2003). Copyright © 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA' 16 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2018, and is not for resale. User Notes: (369ADA213) § 7.1.13 Notwithstanding any other provision in this Agreement, the Construction Manager's Fee; general conditions costs including personnel, insurance, bonds, taxes, and costs of permits, fees, testing, inspections and similar items if paid by the Construction Manager, and Construction Manager's self -performed work and equipment and materials costs purchased directly or through Subcontractors or Sub -subcontractors, shall not be subject to retainage. § 7.1.14 Notwithstanding Section 7.1.8 above, upon mutual agreement by Owner and Construction Manager, payment in full may be made to those Subcontractors whose Work is fully completed during the early stages of the Project, or any retained amounts reduced with respect to Subcontractors at such times as the parties may mutually agree. Agreement to any such reduction in retained amounts will not constitute a waiver of or otherwise prejudice the Owner's right to subsequently reinstate full retainage, as to that Subcontract, should circumstances justify such action in the Owner's sole judgment. § 7.1.15 Not Used § 7.2 Final Payment § 7.2.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Construction Manager when .1 the Construction Manager has fully performed the Contract except for the Construction Manager's responsibility to correct Work as provided in the Contract Documents, and to satisfy other requirements, if any, which extend beyond final payment; .2 the Construction Manager has submitted a final Application for Payment; and .3 a final Certificate for Payment has been issued by the Architect. The Architect will so certify the final Application for Payment within 10 days after submittal. The Owner's final payment to the Construction Manager shall be made no later than 30 days after the issuance of the Architect's final Certificate for Payment, provided that Construction Manager has met all other final payment requirements indicated in the RFQ. § 7.2.2 Not used § 7.2.3 Owner may audit the final Cost of the Work to confirm the accuracy of the final Application for Payment. If the Owner's auditors report the Cost of the Work as substantiated by the Construction Manager's final accounting to be less than claimed by the Construction Manager, the Construction Manager and Owner shall resolve the dispute as set forth in the Contract Documents. Pending a final resolution of the disputed amount, the Owner shall pay the Construction Manager the amount certified in the Architect's final Certificate for Payment. § 7.2.4 If, subsequent to final payment and at the Owner's request, the Construction Manager incurs costs described in Sections 6.1 — 6.7 and not excluded by Section 6.8 to correct defective or nonconforming Work, the Owner shall reimburse the Construction Manager such costs and the Construction Manager's Fee applicable thereto on the same basis as if such costs had been incurred prior to final payment, but not in excess of the Guaranteed Maximum Price. § 7.3 The Owner shall make all payments to the Construction Manager by wiring the funds as follows: Name: The Weitz Company Account #: 4121142509 ABA (routing) #: 121000248 Bank Name: Wells Fargo Bank Iowa, N.A. § 7.4 Payments due and unpaid under the Contract shall bear interest after a 30 -day grace period from the date payment is first due at the rate stated below. Payments for Construction Change Directive work shall be considered "due and payable" on the payment due date of the next Application for Payment following the incorporation of such portion of the Construction Change Directive work into the Work, and shall bear interest accordingly. The agreed interest rate shall apply to all payments due under the Contract Document's including pre -construction phase Inst. AIA Document A133T"' —2009 (formerly A121 TMCMc — 2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 17 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2018, and is not for resale. User Notes: (3139ADA21B) services, construction phase services, progress payments and final payment. Failure to demand payment shall not extend the due date or waive a party's right to interest. Interest rate is I% per month (or fraction thereof) compounded monthly until paid in full. ARTICLE 8 INSURANCE AND BONDS For all phases of the Project, the Construction Manager and the Owner shall purchase and maintain insurance, and the Construction Manager shall provide bonds as set forth elsewhere in the Contract Documents or as an Exhibit with the GMP Proposal/Amendment. (State bonding requirements, if any, and limits of liability, for insurance required in Article I 1 of AIA Docunzen tA201-2007.) Type of Insurance or Bond Limit of Liability or Bond Amount ($0.00) Employers' Liability Insurance $500,000 bodily injury by accident per accident $500,000 bodily injury by disease policy limit $500,000 bodily injury by disease per employee Business Automobile Liability Insurance $1,000,000 per accident Commercial General Liability Insurance $1,000,000 per occurrence $3,000,000 general aggregate $1,000,000 products/completed operations aggregate $1,000,000 personal and advertising injury limit § 8.1 Contractor Payment and Performance Bonds are required. Construction Manager to provide bonds on AIA A312 and record bonds with the County Clerk prior to the Construction Phase commencement date. ARTICLE 9 DISPUTE RESOLUTION § 9.1 Any Claim between the Owner and Construction Manager shall be resolved in accordance with the provisions set forth in this Article 9 and elsewhere in the Contract Documents. § 9.2 For any Claim subject to, but not resolved by mediation pursuant to other provisions of the Contract Documents, the method of binding dispute resolution shall be as follows: (Check the appropriate box. If the Owner and Construction Manager do not select a method of binding dispute resolution below, or do not subsequently agree in writing to a binding dispute resolution method other than litigation, Claims will be resolved by litigation in a court of competent jurisdiction.) [ X ] Litigation in a court of competent jurisdiction. The parties to this Agreement expressly waive their rights to a trial by jury. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney's fees, court costs and all expenses (including taxes) even if not taxable as court awarded costs (including, without limitation, all such fees, costs and expenses incident to appeals), incurred in that action or proceeding. (Paragraphs Deleted) Inst. AIA Document A133TM — 2009 (formerly A121 TMCMc — 2003). Copyright © 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 1$ Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2018, and is not for resale. User Notes: (369ADA213) ARTICLE 10 TERMINATION OR SUSPENSION § 10.1 Termination Prior to Establishment of the Guaranteed Maximum Price § 10.1.1 Prior to the execution of the Guaranteed Maximum Price Amendment, the Owner may terminate this Agreement upon not less than seven days' written notice to the Construction Manager for the Owner's convenience and without cause, and the Construction Manager may terminate this Agreement, upon not less than seven days' written notice to the Owner, for the reasons set forth elsewhere in the Contract Documents. § 10.1.2 In the event of termination of this Agreement pursuant to Section 10.1.1, the Construction Manager shall be equitably compensated for Preconstruction Phase services performed prior to receipt of a notice of termination. In no event shall the Construction Manager's compensation under this Section exceed the compensation set forth in Section 4.1. § 10.1.3 (Paragraphs Deleted) Not Used (Paragraphs Deleted) § 10.2 Termination Subsequent to Establishing Guaranteed Maximum Price Following execution of the Guaranteed Maximum Price Amendment and subject to the provisions of Section 10.2.1 and 10.2.2 below, the Contract may be terminated as provided elsewhere in the Contract Documents. § 10.2.1 Refer to the Owner's RFQ for Termination by the Owner § 10.2.2 Refer to the Owner's RFQ for Termination by the Construction Manager § 10.3 Suspension Refer to the Owner's RFQ for Suspension of the Contract ARTICLE 11 MISCELLANEOUS PROVISIONS § 11.1 The parties will mutually agree on a term's meaning if a discrepancy arises for any terms in, or referenced in, this Agreement. § 11.2 Ownership and Use of Documents Refer to the Owner's RFQ for Ownership and Use of Documents § 11.3 Governing Law The Contract shall be governed by the law of the place where the Project is located § 11.4 Assignment The Owner and Construction Manager, respectively, bind themselves, their agents, successors, assigns and legal representatives to this Agreement. Neither the Owner nor the Construction Manager shall assign this Agreement without the written consent of the other, except that the Owner may assign this Agreement to a lender providing financing for the Project if the lender agrees to assume the Owner's rights and obligations under this Agreement. Neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party makes such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. § 11.5 Other provisions: § 11.5.1 Neither the Owner's nor the Construction Manager's representative shall be changed without 3 days' written notice to the other party. Init. AIA Document A133T"' —2009 (formerly A121 T"'CMc — 2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 19 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. t This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2018, and is not for resale. User Notes: (3B9ADA2B) § 11.5.2 If Drawings are required to be revised, the Owner shall have the Architect re -date all revised sheets and clearly identify all changes by bubble and delta number or other means acceptable to the Construction Manager and Owner. The Owner and Construction Manager acknowledge that it is difficult to determine and implement changes that are not so identified by revision date, bubble or delta number. If the Contract is amended to incorporate revised Drawings, the Guaranteed Maximum Price and Contract Time are subject to additional equitable adjustments for the cost and time impacts of implementing any changes not so identified. § 11.5.3 Notwithstanding anything contained in the Contract Documents to the contrary, the Owner and the Owner's separate contractors assume all risk of loss or damage to any and all of their property or the Work and any loss of use or occupancy thereof arising from the actions of the Owner and/or the Owner's separate contractors and hereby release the Construction Manager and its agents, employees, insurers, sureties and Subcontractors therefrom, however and by whomever caused. § 11.5.4 The Construction Manager may offer value analysis or cost reduction proposals for consideration by the Owner. Any proposal accepted by the Owner after establishment of the GMP shall be incorporated into the Contract by a Change Order signed by the Owner and Construction Manager. The Owner acknowledges the Construction Manager is not a design professional and any such value analysis or cost reduction proposals shall be thoroughly reviewed by the Owner and Architect. The Construction Manager shall not be responsible for the cost of such review, redesign cost, or other costs related to the acceptance of such value analysis or cost reduction proposals. The Contract Sum shall be equitably adjusted to reflect the resulting change in Construction Manager's cost if after initial acceptance of such value analysis or cost reduction proposals such acceptance is reversed or modified for any reason. § 11.5.5 Not Used § 11.5.6 The Owner will obtain and maintain satisfactory property insurance on the Project commencing upon substantial completion and continuing for at least the applicable statutes of limitations and repose for any claims that could be made against Construction Manager thereafter. § 11.5.7 Except as to agreed liquidated damages for late substantial completion, if any, and notwithstanding anything else in the Contract Documents to the contrary, the Owner releases the Construction Manager from, and waives all rights to claims for, special, incidental, consequential, indirect, exemplary or punitive damages, including those arising from deferred or lost sales, diminution in value, additional interest or penalties, loss of use, loss of reputation, loss of financing, and additional costs of marketing, management, insurance premiums or taxes, however caused. § 11.5.8 Not Used ARTICLE 12 SCOPE OF THE AGREEMENT § 12.1 This Agreement represents the entire and integrated agreement between the Owner and the Construction Manager and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Construction Manager. § 12.2 The following documents along with the Owner's RFQ will comprise the Agreement upon establishment of the GMP: .1 AIA Document A133-2009, Standard Form of Agreement Between Owner and Construction Manager as Constructor where the basis of payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price as modified by the parties. .2 The General Conditions of the Contract for Construction will be the amended AIA Document A201- 2007, General Conditions of the Contract for Construction and will be attached as Exhibit C in the GMP Proposal Init. AIA Document A133TM — 2009 (formerly A121 TMCMc — 2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 2() Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2018, and is not for resale. User Notes: (3139ADA213) .3 AIA Document E201 TM -2007, Digital Data Protocol Exhibit, if completed, or the following: To be established in the GMP Amendment, if applicable. .4 AIA Document E202TM-2008, Building Information Modeling Protocol Exhibit, if completed, or the following: To be established in the GMP Amendment, if applicable. Other documents: GMP Proposal, Amendment, and Exhibits. (Any Exhibits indicated may not be fully established until preparation of the GMP Proposal). (List other documents, if any, forming part of the Agreement) The Exhibits below will be incorporated and made a part of this Agreement. 12.2.5.1 Exhibit A: List of Contract Documents including Drawings, Specifications and Addenda. 12.2.5.2 Exhibit B: Scope of Work Clarifications, Unit Prices, Allowances, Alternates 12.2.5.3 Exhibit C: General Conditions of the Contract for Construction. 12.2.5.4 Exhibit D: Agreed Charging Rates. 12.2.5.5 Exhibit E: Project Insurance Program Requirements This Agreement is entered into as of the day and year first written above and is executed in at least two original copies, of which one is to be delivered to the Construction Manager and one to the Owner. A copy may be provided to the Architect to facilitate the Architect's administration during construction. Village of North Palm Beach The Weitz Company, LLC By. B3. 12,.L OWNER(Signat e) C STRUCTION AGER(Signature) Darryl Aubrey, Mayor Dennis Gallagher, Executive Vice President (Printed name and title) Attest: OWNER(. Signature) Melissa Teal, Village Clerk (Printed name and title) (Printed name and title) Inst. AIA Document A13311 —2009 (formerly A121 TMCMC — 2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 2� Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. t This document was produced by AIA software at 14:59:44 on 02/02/2018 under Order No. 9366404636 which expires on 05/20/2018, and is not for resale. User Notes: (3139ADA28)