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Home My WebLink AboutPR 20938: PRE-DEVELOPMENT CONSTRUCTION SERVICES AGREEMENT BETWEEN EDC AND SETEX FACILITIES & MAINTENANCE, LLC Interoffice MEMORANDUM To: Mayor, City Council, City Manager From: Floyd Batiste, CEO Date: July 9, 2019 Subject: P.R. No. 20938; Council Meeting of July 16, 2019 ATTACHED IS PROPOSED RESOLUTION NO. 20938, A RESOLUTION AUTHORIZING THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION TO ENTER INTO A PRE- DEVELOPMENT CONSTRUCTION SERVICES AGREEMENT WITH SETEX FACILITIES & MAINTENANCE, LLC FOR THE ADDITION AND RENOVATION OF 549 4TH STREET FOR AN AMOUNT NOT TO EXCEED $9,500.00. FUNDS AVAILABLE IN EDC ACCOUNT NO. 305-1606-591.82-00 PROJECT NO. EDC549. P.R. No. 20938 7/5/2019 KVM RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION TO ENTER INTO A PRE-DEVELOPMENT CONSTRUCTION SERVICES AGREEMENT WITH SETEX FACILITIES & MAINTENANCE, LLC FOR THE ADDITION AND RENOVATION OF 549 4TH STREET FOR AN AMOUNT NOT TO EXCEED $9,500.00 WHEREAS, it is deemed in the best interest of the citizens of Port Arthur to create an environment that promotes business, entrepreneurial and community development; and WHEREAS, the City of Port Arthur is in need of dedicated space for the development of an emergency operations center; and WHEREAS, the City of Port Arthur Section 4A Economic Development Corporation ("PAEDC") applied for and was awarded Economic Development Administration funding under the 2018 Disaster Assistance Grant Funds; and WHEREAS,by request dated April 3,2019,PAEDC invited general contractors to submit qualifications in order to provide construction services for the addition and renovation of the Port Arthur News Building at 549 4th Street; and WHEREAS, a committee appointed by the PAEDC Board of Directors reviewed the submitted proposals and selected four final general contractors to interview(Exhibit "A"); and WHEREAS, at its regular Board meeting on July 1, 2019,the PAEDC Board of Directors approved the recommendation of the selection committee to enter into a Pre-Development Construction Services Agreement with SETEX Facilities & Maintenance, LLC of Port Arthur, Texas, attached hereto as Exhibit"B" for a cost not to exceed $9,500.00. NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That the City Council authorizes PAEDC to enter into a Pre-Development Construction Services Agreement with SETEX Facilities & Maintenance, LLC for the addition and renovation of the Port Arthur News Building at 549 4th Street at a cost not to exceed$9,500.00, in substantially the same form as attached hereto as Exhibit "B". Section 3. That a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ,ADOPTED AND APPROVED on this day of A.D., 2019, at a Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: AYES: Mayor Councilmembers • NOES: Thurman Bartie, Mayor ATTEST: Sherri Bellard, City Secretary #1667890 Page 2 APPROVED: 1 / irc, C- Floyd Batiste,'AEDC CEO APP' if) AS TO FORM. ...1 j ese C/2 alet Guy N. Goodson, PAEDC Attorney APPROVED AS TO FORM: Valecia R. Tizeno, City Attorney APPROVED AS TO AVAILABILITY OF FUNDS: Kandy Daniel, Interim Finance Director #1667890 Page 3 EXHIBIT "A" May 29, 2019 Floyd Batiste, Executive Director AS Port Arthur Economic Development Corporation 501 Procter Street Suite#100 Port Arthur, TX 77640 ARCHITECT'S STUDIO Mr. Batiste, There were a total of seven general contractors that responded to the Request for Qualifications for Construction Manager at Risk issued by the Port Arthur Economic Development Corporation for Additions and Renovations of the Port Arthur News Building as the Center for Community and Business Development. The pool of general contractors that responded individually brought different experiences, expertise, ideas, and ways to deliver a successful project. The seven respondents below received scores form the selection committee as follows: Contractor Points Evaluation Score Daniels Building & Construction, Inc. 100 Setex Construction Corporation 100 93 G&G Enterprises Construction Corp 100 92 Construction Managers of Southeast Texas, LLC 100 H.B. Neild & Sons Inc. 100 85 McInnis Construction, Inc. 100 83 N&T Construction Co., Inc. 100 1 81 The qualified pool was very competitive with the top four general contractors interviewing and providing proposals to include their Pre-Construction Fee, Construction Phase Fee, and Partial General Condition Cost. The graphs below illustrate the results as follows: Contractor Percentage of Overall Cost Construction Managers of Southeast Texas, LLC 11.35% Daniels Building & Construction, Inc. 12.14% G&G Enterprises Construction Corp 9.45% Setex Construction Corporation 11.79% (Daniels Building&Construction, Inc. and Setex Construction Corporation did not provide Bonds and Insurance cost in their General Conditions Fee—assumed$90,000.00 for budgeting purposes) 11 Page Pre-Construction Phase Fee $15,000.00 $9,500.00 0.00 gnaw CONSTRUCTION MANAGERS DANIELS BUILDING& G&G ENTERPRISES SETEX FACILITIES& OF SOUTHEAST TEXAS,LLC CONSTRUCTION,INC. CONSTRUCTION CORP MAINTENANCE,LLC Pre-Construction Phase Fee Construction Phase Fee $378,000.00 or 9,45% $200,000.00 $199,525.00 or 5.00% or 5.25 $158,000.00 or 3.95% CONSTRUCTION MANAGERS DANIELS BUILDING& G&G ENTERPRISES SETEX FACILITIES& OF SOUTHEAST TEXAS,LLC CONSTRUCTION,INC. CONSTRUCTION CORP MAINTENANCE,LLC Construction Phase Fee 2IPage General Conditions Fee $241,370.00 5213.000.00 R1 134 DO`; $0.00 CONSTRUCTION MANAGERS DANIELS BUILDING& G&G ENTERPRISES SETEX FACILITIES& OF SOUTHEAST TEXAS,LLC CONSTRUCTION,INC. CONSTRUCTION CORP MAINTENANCE.LLC General Conditions Architect's Studio PLLC recommends that the Port Arthur Economic Development Corporation decide to enter into a preconstruction agreement with Setex Construction Corporation for the Pre-Construction Phase. We also recommend securing Setex Construction Corporation for the renovation as well, should all parties agree to move forward, in order to keep continuity between the preparation of the preconstruction and the actual renovation of the building. The contributing factors for the recommendation of Setex Construction Corporation for the renovation of the project are as follows: • Experienced Proposed Project Team • Established Relationship with the Port Arthur Economic Development Corporation • Lowest Construction Phase Fee • Proximity to Jobsite Location • Office in same building as the PAEDC and Architect • Active Community Leader • Local Port Arthur General Contractor • History with successful renovation projects We look forward to working with the Port Arthur Economic Development Corporation on this project. Please do not hesitate if there are any questions. We can be reached at our office in Port Arthur, Texas as well as through email at afarias©architectsstudiotx.com. Sincerely, Alam Farias, A.I.A., NCARB Principal Architect 3IPa e EXHIBIT "B" DRAFT 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 ADDITIONS AND DELETIONS: AGREEMENT made as of the«10th »day of«June »in the year«2019» The author of this document has added information (In words, indicate day, month and year.) needed for its completion. The author may also have BETWEEN the Owner: revised the text of the (Name, legal status and address) original AIA standard form. An Additions and Deletions Report that notes added «City of Port Arthur 4A Economic Development Corporation »« » information as well as «501 Procter Street,Suite 100 revisions to the standard form text is available from Port Arthur,TX 77640» the author and should be reviewed. and the Construction Manager: This document has important (Name, legal status and address) legal consequences. Consultation with an «SETEX Facilities&Maintenance »«LLC » attorney is encouraged with respect to its completion «501 Procter Street,Suite 203 or modification. Port Arthur,Texas 77640» AIA Document A201'"-2007, General Conditions of the for the following Project: Contract for Construction, (Name and address or location) is adopted in this document by reference. Do not use with other general «Addition and Renovation of the Port Arthur News Building as the Center for conditions unless this Community and Business Development» d niI t.is modified. «549 4th Street Y Port Arthur,Texas 77640 » The Architect: (Name, legal status and address) «Architect's Studio »«PLLC » 501 Procter,Suite 324 (Th Port Arthur,Texas 77640» The Owner's Designated Representative: (Name, address and other information) «Floyd Batiste » «City of Port Arthur 4A Economic Development Corporation » «501 Procter Street, Suite 100 , Port Arthur,Texas 77640» ELECTRONIC COPYING of any portion of this AIA° Document The Construction Manager's Designated Representative: to another electronic file is prohibited and constitutes a (Name, address and other information) - violation of copyright laws as set forth in the footer of «Nathan Rivers » this document. «501 Procter Street, Suite 203 Port Arthur,Texas 77640 » AIA Document A133m - 2009 (formerly A121"CMc - 2003). Copyright ° 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This ASA 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 1 maximum extent possible under the law. This draft was produced by AIA software at 16:49:57 ET on 06/17/2019 under Order No.4048225624 which expires on 09/14/2019, and is not for resale. User Notes: (1831825765) The Architect's Designated Representative: (Name, address and other information) «Alam Farias » «501 Procter Street,Suite 3 P ur Texas 77640» _ _ „_r ti _ y �, .. The Owner and Construction Manager agree as follows. 4(::1 (111.1 AIA Document A133e1 - 2009 (formerly A121sCMc - 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 2 maximum extent possible under the law. This draft was produced by AIA software at 16:49:57 ST on 06/17/2019 under Order No.4048225624 which expires on 09/14/2019, and is not for resale. User Notes: (1831825765) 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 -- -1 12 SCOPE OF THE AGREEMENT EXHIBIT A GUARANTEED MAXIMUM PRICE AMENDMENT ARTICLE 1 GENERAL PROVISIONS § 1.1 The Contract Documents The Contract Documents consist of this Agreement,Conditions of the Contract(General,Slerr. ntary and other Conditions),Drawings, Specifications,Addenda issued prior to the execution of this Agreement,other documents listed in this Agreement,and Modifications 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 accepts the relationship of trust and confidence established by this Agreement and covenants with the Owner to cooperate with the Architect and exercise the Construction Manager's skill and judgment in furthering the interests of the Owner;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 Owner's interests. 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. § 1.3 General Conditions For the Preconstruction Phase,AIA Document A201T"_2007,General Conditions of the Contract for Construction, shall apply only as specifically provided in this Agreement.For the Construction Phase,the general conditions of the contract shall be as set forth in A201-2007,which document is incorporated herein by reference.The term "Contractor"as used in A201-2007 shall mean the Construction Manager. AIA Document A133 - 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 D.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 3 maximum extent possible under the law. This draft was produced by AIA software at 16:49:57 RT on 06/17/2019 under Order No.4048225624 which expires on 09/14/2019, and is not for resale. User Notes: (1831825765) 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,in consultation with the Architect,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 pr ,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 0 to discuss such matters as procedures,progress,coordination,and scheduling of the Work.The Constructio anager shall advise the Owner and the Architect on proposed site use and improvements,selection of materials, d building systems and equipment.The Construction Manager shall also provide recommendations consistent ' the Project requirements to the Owner and Architect on constructability;availability of materials and la r; ' e requirements for procurement,installation and construction;and factors related to construction cost inclu ' g, ut not limited to, costs of alternative designs or materials,preliminary budgets,life-cycle data,and possible c t r uctions. § 2.1.3 When Project requirements in Section 3.1.1 have been sufficiently identified,the Co 'on Manager shall prepare and periodically update a Project schedule for the Architect's review and the Ownera c ptance.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 schedulea include the following: submission of the Guaranteed Maximum Price proposal;components of the Work;tines f commencement and completion required of each Subcontractor;ordering and delivery of productss eluding those that must be ordered well in advance of construction;and the occupancy requirements of the Owner. § 2.1.4 Phased Construction The Construction Manager shall provide recommendations with regard to accelerated or fast-. . k • heduling, procurement,or phased construction.The Construction Manager shall take into consideration cos e s ctions,cost information,constructability,provisions for temporary facilities and procurement and construction s duling issues. § 2.1.5 Preliminary Cost Estimates § 2.1.5.1 Based on the preliminary design and other design criteria prepared by the Architec i: I .i struction Manager shall prepare preliminary estimates of the Cost of the Work or the cost of program -q :is ents using area, volume or similar conceptual estimating techniques for the Architect's review and Owner's appr I al.If the Architect or Construction Manager suggests alternative materials and systems,the Constructiln anager shall provide cost evaluations of those alternative materials and systems. I! § 2.1.5.2 As the Architect progresses with the preparation of the Schematic Design,Design Development and Construction Documents,the Construction Manager shall prepare and update,at appropriate intervals agreed to by the Owner,Construction Manager and Architect,estimates of the Cost of the Work of increasing detail and refinement and allowing for the further development of the design until such time as the Owner anConstruction Manager agree on a Guaranteed Maximum Price for the Work. 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 recommendati for c ective action. § 2.1.6 Subcontractors and Suppliers The Construction Manager shall develop bidders' interest in the Project. § 2.1.7 The Construction Manager shall prepare,for the Architect's review and the Owner's acceptance, a procurement schedule for items that must be ordered well in advance of construction.The Construction Manager shall expedite and coordinate the ordering and delivery of materials that must be ordered well in advance of AIA Document A133.- 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 D.S. Copyright Law and International Treaties. Unauthorized reproduction or 4 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 draft was produced by AIA software at 16:49:57 ET on 06/17/2019 under Order No.4048225624 which expires on 09/14/2019, and is not for resale. User Notes: (1831825765) construction.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 acceptable to the Construction Manager.Upon the establishment of the Guaranteed Maximum Price,the Owner shall assign all contracts for these items to the Construction Manager and the Construction Manager shall thereafter accept responsibility for them. § 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 ' eluded as part of the Guaranteed Maximum Price.The Construction Manager is not required to ascertain that the rawings and Specifications are in accordance with applicable laws,statutes,ordinances,codes,rules and gulations,or lawful orders of public authorities,but the Construction Manager shall promptly report to the Arc et-and-Owner any nonconformity discovered by or made known to the Construction Manager as a request for' ormation 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, s and regulations,and lawful orders of public authorities applicable to its performance under this Contract,and wi equal employment opportunity programs,and other programs as maybe required by governmental and quasi g e ental 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 devel p ent 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 dgelopment 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. V ` t t § 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 Con 'ons of the Contract; .2 A list of the clarifications and assumptions made by the Construction Manag ' the p eparation of the Guaranteed Maximum Price proposal,including assumptions under Secti 2.2.2,to supplement the information provided by the Owner and contained in the Drawings and S cifrcations; .3 A statement of the proposed Guaranteed Maximum Price,including a statem t of the estimated Cost of the Work organized by trade categories or systems,allowances,contingency,and the Construction Manager's Fee; .4 The anticipated 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 its contingency for the Construction Manager's exclusive use to cover those costs considered reimbursable as the Cost of the Work but not included in a Change Order. ( If § 2.2.5 The Construction Manager shall meet with the Owner and Architect to review the Gu#rantee aximum Price proposal.In the event that the Owner and Architect discover any inconsistencies or in4ocuracie 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 If 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 AIA Document A133°1 - 2009 (formerly A121mCMe - 2003). Copyright 0 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 5 maximum extent possible under the law. This draft was produced by AIA software at 16:49:57 ET on 06/17/2019 under Order No.4048225624 which expires on 09/14/2019, and is not for resale. User Notes: (1831825765) Price proposal shall be deemed effective without further acceptance from 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. § 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 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,whether or not yet effective,at the time the Guaranteed Maximum Price Amendment is executed. § 2.3 Construction Phase § 2.3.1 General § 2.3.1.1 For purposes of Section 8.1.2 of A201-2007,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 or the Owner's issuance of a Notice to Proceed,whichever occurs earlier. § 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 own personnel shall be performed under subcontracts or by other appropriate agreements with the Construction Manager. •= e •:.- - ::-• -- • - - : _ . - . --••- •- - _= .... . . : .The Construction Manager shall obtain competitive bids from Subcontractors and from suppliers of materials or equipment fabricated especially for the Work and shall deliver such bids to the Architect.Competitive bidding is two or more bidders with the lowest bidder chosen(unless determined unresponsive). The Owner shall then determine,with the advice of the Construction Manager and the Architect,which bids will be accepted. •- _-• _ - .• _ _ ._ __. . _. _ __•, .- _ _ § 2.3.2.2 If the Guaranteed Maximum Price has been established and when a specific O ecific bidder(1 t5 recommended to the Owner by the Construction Manager,(2)is qualified to perform that portion of the Work,and(3)has submitted a bid that conforms to the requirements of the Contract Documents without reservations or exceptions,but the Owner requires that another bid be accepted,then the Construction Manager may require that a Change Order be issued to adjust the Contract Time and the Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to the Owner by the Construction Manager and the amount and time requirement of the subcontract or other agreement actually signed with the person or entity designated by the Owner. § 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 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. AIA Document Al3T° - 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 C 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 draft was produced by AIA software at 16:49:57 ET on 06/17/2019 under Order No.4048225624 which expires on 09/14/2019, and is not for resale. User Notes: (1831825765) § 2.3.2.5 The Construction Manager shall schedule and conduct 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 Upon 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 Section 3.10 of A201-2007. § 2.3.2.7 The Construction Manager shall record the progress of the Project.On a monthlyis,or otherwise as agreed to by the Owner,the Construction Manager shall submit written progress reports to 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 feach day of weather, portions of the Work in progress,number of workers on site,identification of equipment on te,problems that might affect progress of the work,accidents,injuries,and other information required by the wner. § 2.3.2.8 The Construction Manager shall develop a system of cost control for the Work,in ding regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and :roposed changes.The Construction Manager shall identify variances between actual and estimated costs and repo •e ,,ariances to the Owner and Architect and shall provide this information in its monthly reports to the Owner 1 d chitect,in accordance with Section 2.3.2.7 above. § 2.4 Professional Services Section 3.12.10 of A201-2007 shall apply to both the Preconstruction and Construction Pi.. § 2.5 Hazardous Materials Section 10.3 of A201-2007 shall apply to both the Preconstruction and Construction Phases. 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 require is-: + .r and limitations on the Project,including a written program which shall set forth the Owner's objectives,co .,and criteria, including schedule,space requirements and relationships,flexibility and expandability,specs. .ment,systems, sustainability and site requirements. . § 3.1.2 Prior to the execution of the Guaranteed Maximum Price Amendment,the Construction M. 1. ,-r may request in writing that the Owner provide reasonable evidence that the Owner has made financial . .',•ements to fulfill the Owner's obligations under the Contract.Thereafter,the Construction Manager may 0 y r,• est such evidence if(1)the Owner fails to make payments to the Construction Manager as the Con trat L) c, -nts require, (2)a change in the Work materially changes the Contract Sum,or(3)the Construction Man er\i n'tifies in writing a reasonable concern regarding the Owner's ability to make payment when due. The Owner al 'sh such evidence as a condition precedent to commencement or continuation of the Work or the po ' n the Work affected by a material change.After the Owner furnishes the evidence,the Owner shall not materiall such financial arrangements without prior notice to the Construction Manager and Architect. § 3.1.3 The Owner shall establish and periodically update the Owner's budget for the Project, includin (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 Preconstructionhase,the Owner shall furnish the following information or services with reasonable promptness.The Owner shall so 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 reque t for such=information or services.The Construction Manager shall be entitled to rely on the accuracy of information and serjices furnished by the Owner but shall exercise proper precautions relating to the safe performance of the Work. AIA Document A133.- 2009 (formerly A121e'CMc - 2003). Copyright ° 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA' Document is protected by U.B. 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 7 maximum extent possible under the law. This draft was produced by AIA software at 16:49:57 ET on 06/17/2019 under Order No.4048225624 which expires on 09/14/2019, and is not for resale. User Notes: (1831825765) § 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 resions,boundaries and contours of the site;locations,dimensions and necessary data with respect to existing build' s,other improvements and trees;and information concerning available utility services and lines,both public and p ate,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,peolation tests, evaluations of hazardous materials,seismic evaluation,ground corrosion tests and resistive ests,including necessary operations for anticipating subsoil conditions,with written reports and appropriat ecommendations. § 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 Il ii The Owner shall identify a representative authorized to act on behalf of the Owner with respect to thelroject.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 prove in Section 4.2.1 of A201-2007,the Architect does not have such authority.The term"Owner"means the O r r the Owner's authorized representative. A § 3.2.1 Legal Requirements.The Owner shall furnish all legal,insurance and accounting services,including auditing services,that may be reasonably necessary at any time for the Project to meet the Owner's needs and interests. § 3.3 Architect The Owner shall retain an Architect to provide services,duties and responsibilities as described' Document B 133T0&2014,Standard Form of Agreement Between Owner and Architect,Construction Manager onstructor Edition.The Owner shall provide the Construction Manager a copy of the executed agreement betwee i the Owner and the Architect,and any further modifications to the agreement. ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVI § 4.1 Compensation § 4.1.1 For the Construction Manager's Preconstruction Phase services,the Owner shall co .. e the Construction Manager as follows: § 4.1.2 For the Construction Manager's Preconstruction Phase services described in Section-�2: (Insert amount of or basis for, compensation and include a list of reimbursable cost items, s a Lica le.) «$9,500.00 » IIIIIIIIIIIIIIIIIIIIIIIIIIIIIII,IrIIIIIIIIIII § 4.1.3 If the Preconstruction Phase services covered by this Agreement have not been completed within III(■) months of the date of this Agreement,through no fault of the Construction Manager,the Co ctict anager's compensation for Preconstruction Phase services shall be equitably adjusted. § 4.1.4 Compensation based on Direct Personnel Expense includes the direct salaries of the nstrucii n Manager's personnel providing Preconstruction Phase services on the Project and the Construction M ager's costs for the mandatory and customary contributions and benefits related thereto,such as employment taxes and other statutory employee benefits,insurance,sick leave,holidays,vacations,employee retirement plans and similar contributions. AIA Document A13:P' - 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 D.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 8 maximum extent possible under the law. This draft was produced by AIA software at 16:49:57 ST on 06/17/2019 under Order No.4048225624 which expires on 09/14/2019, and is not for resale. User Notes: (1831825765) § 4.2 Payments § 4.2.1 Unless otherwise agreed,payments for services shall be made monthly in proportion to services performed. § 4.2.2 Payments are due and payable upon presentation of the Construction Manager's invoice.Amounts unpaid «thirty »(«30 »)days after the invoice date shall bear interest at the rate entered below,or in the absence thereof at the legal rate prevailing from time to time at the principal place of business of the Construction Manager. (Insert rate of monthly or annual interest agreed upon.) — «one and a half » 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.The Contract Sum is the Cost of the Work as defined in Section 6.1.1 plus the Construction Manager's Fee. § 5.1.1 The Construction Manager's Fee: (State a lump sum,percentage of Cost of the Work or other provision for determining the C , truction Manager's Fee.) -- § 5.1.2 The method of adjustment of the Construction Manager's Fee for changes in the Wo : § 5.1.3 Limitations,if any,on a Subcontractor's overhead and profit for increases in the cost of its p• i on of the Work: § 5.1.4 Rental rates for Construction Manager-owned equipment shall not exceed«ten »percent(«10 > %)of the standard rate paid at the place of the Project. § 5.1.5 Unit prices,if any: \\.\ (Identify 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 G 1 . • =-d Maximum Price set forth in the Guaranteed Maximum Price Amendment,as it is amended from time t• '•• To the extent the Cost of the Work exceeds the Guaranteed Maximum Price,the Construction Manager shall ar . ,ch costs in excess of the Guaranteed Maximum Price without reimbursement or additional compensation from J ,- . (Insert specific provisions if the Construction Manager is to participate in any savings.) § 5.2.2 The Guaranteed Maximum Price is subject to additions and deductions by Change Or ,asp vided in the Contract Documents and the Date of Substantial Completion shall be subject to adjustment rovi in the Contract Documents. § 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 Section 7.4 of AIA Document A201-2007,General Conditions of the Contract for Construction.The Construction Manager shall be entitled to an equitable adjustment in the Contract Time as a result of changes in the Work. AIA Document A133°1- 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° Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the 9 maximum extent possible under the law. This draft was produced by AIA software at 16:49:57 ET on 06/17/2019 under Order No.4048225624 which expires on 09/14/2019, and is not for resale. User Notes: (1831825765) § 5.3.2 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to the execution of the Guaranteed Maximum Price Amendment may be determined by any of the methods listed in Section 7.3.3 of AIA Document A201-2007,General Conditions of the Contract for Construction. § 5.3.3 In calculating adjustments to subcontracts(except those awarded with the Owner's prior consent on the basis of cost plus a fee),the terms"cost"and"fee"as used in Section 7.3.3.3 of AIA Document A201-2007 and the term "costs"as used in Section 7.3.7 of AIA Document A201-2007 shall have the meanings assi ed to them in AIA Document A201-2007 and shall not be modified by Sections 5.1 and 5.2,Sections 6.1 thro 6.7,and Section 6.8 of this Agreement.Adjustments to subcontracts awarded with the Owner's prior consent on e basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts. § 5.3.4 In calculating adjustments to the Guaranteed Maximum Price,the terms"cost"and` sts"as used in the above-referenced provisions of MA Document A201-2007 shall mean the Cost of the Wor defined in Sections 6.1 to 6.7 of this Agreement and the term"fee"shall mean the Construction Manager's Fee defined in Section 5.1 of this Agreement. § 5.3.5 If no specific provision is made in Section 5.1.2 for adjustment of the Construction manager's Fee in the case of changes in the Work,or if the extent of such changes is such,in the aggregate,that application of the adjustment provisions of Section 5.1.2 will cause substantial inequity to the Owner or Construction Manager,the Construction Manager's Fee shall be equitably adjusted on the same basis that was used to :ablish the Fee for the original Work,and the Guaranteed Maximum Price shall be adjusted accordingly. ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE § 6.1 Costs to Be Reimbursed § 6.1.1 The term Cost of the Work shall mean costs necessarily incurred by the Construction Manag- 1 the proper performance of the Work. Such costs shall be at rates not higher than the standard paid at the place of III e Project except with prior consent of the Owner.The Cost of the Work shall include only the items set fo h Sections 6.1 through 6.7. § 6.1.2 Where any cost is subject to the Owner's prior approval,the Construction Manager • . , .in this approval prior to incurring the cost.The parties shall endeavor to identify any such costs prior to exec s= I uaranteed Maximum Price Amendment. § 6.2 Labor Costs § 6.2.1 Wages of construction workers directly employed by the Construction Manager to perform th- onstruction of the Work at the site or,with the Owner's prior approval,at off-site workshops.Wages mus a o 'er=t i the Davis- Bacon Act(paid no less than the local prevailing wage rates/fringe benefits as determined b e I s Hi ent of Labor). § 6.2.2 Wages or salaries of the Construction Manager's supervisory and administrative per nn when stationed at the site with the Owner's prior approval. (If it is intended that the wages or salaries of certain personnel stationed at the Construction Manager's principal or other offices shall be included in the Cost of the World idents in Section 11.5, the personnel to b cluded, whether for all or only part of their time, and the rates at which their time will be charged tq the World) § 6.2.3 Wages and salaries of the Construction Manager's supervisory or administrative personnel engaged at factories,workshops or on the road,in expediting the production or transportation of material,orfei iipment required for the Work,but only for that portion of their time required for the Work. § 6.2.4 Costs paid or incurred by the Construction Manager for taxes,insurance,contributio: ,assessments and benefits required by law or collective bargaining agreements and,for personnel not covered li such agreements, customary benefits such as sick leave,medical and health benefits,holidays,vacations and r ions,provided such costs are based on wages and salaries included in the Cost of the Work under Sections 6.2.1 1 ough 6.2.3. § 6.2.5 Bonuses,profit sharing,incentive compensation and any other discretionary payments paid to anyone hired by the Construction Manager or paid to any Subcontractor or vendor,with the Owner's prior approval. AIA Document A133� - 2009 (formerly A121.CNC - 2003). Copyright ° 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by D.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 10 maximum extent possible under the law. This draft was produced by AIA software at 16:49:57 ET on 06/17/2019 under Order No.4048225624 which expires on 09/14/2019, and is not for resale. User Notes: (1831825765) § 6.3 Subcontract Costs Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts. § 6.4 Costs of Materials and Equipment Incorporated in the Completed Construction § 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 actuall ' tailed to allow for reasonable waste and spoilage.Unused excess materials,if any,shall become the Owner's perty at the completion of the Work or,at the Owner's option,shall be sold by the Construction Manag . ampunts 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 § 6.5.1 Costs of transportation,storage,installation,maintenance,dismantling and removal materials,supplies, temporary facilities,machinery,equipment and hand tools not customarily owned by construetion workers that are provided by the Construction Manager at the site and fully consumed in the performance of.-e Work.Costs of materials,supplies,temporary facilities,machinery,equipment and tools that are not fully c, .1 ed 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 o iiie m when it is no longer used at the Project site.Costs for items not fully consumed by the Construction Man.hr all mean fair market value. § 6.5.2 Rental charges for temporary facilities,machinery,equipment and hand tools not cu. a . 'ly owned by construction workers that are provided by the Construction Manager at the site and costs of transportation, installation,minor repairs,dismantling and removal.The total rental cost of any Construction Manager-owned item may not exceed the purchase price of any comparable item.Rates of Construction Manager-owned e.r'pment and quantities of equipment shall be subject to the Owner's prior approval. § 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,facsimile transmissions and long-distance telepho, - . postage and parcel delivery charges,telephone service at the site and reasonable petty cash expenses of 1- s : i ffice. § 6.5.5 That portion of the reasonable expenses of the Construction Manager's supervisory or a• ' i A ative personnel incurred while traveling in discharge of duties connected with the Work. § 6.5.6 Costs of materials and equipment suitably stored off the site at a mutually acceptable ' do , ubject to the Owner's prior approval. § 6.6 Miscellaneous Costs § 6.6.1 Premiums for that portion of insurance and bonds required by the Contract Docume can be directly attributed to this Contract. Self-insurance for either full or partial amounts of the coverages qu d by the Contract Documents,with the Owner's prior approval. § 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 is liable. § 6.6.3 Fees and assessments for the building permit and for other permits,licenses and inspe ons 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 relatt1 o defective or nonconforming Work for which reimbursement is excluded by Section 13.5.3 of AIA Document A201-2007 or by other provisions of the Contract Documents,and which do not fall within the scope of Secti'n 6.7.3. s § 6.6.5 Royalties and license fees paid for the use of a particular design,process or product fired by the Contract Documents;the cost of defending suits or claims for infringement of patent rights arising fr m 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 AIA Document A133.' - 2009 (formerly A121m(20 - 2003). Copyright ° 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by D.B. 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 11 maximum extent possible under the law. This draft was produced by AIA software at 16:49:57 NT on 06/17/2019 under Order No.4048225624 which expires on 09/14/2019, and is not for resale. User Notes: (1831825765) 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 the last sentence of Section 3.17 of AIA Document A201-2007 or other provisions of the Contract Documents,then they shall not be included in the Cost of the Work. § 6.6.6 Costs for electronic equipment and software,directly related to the Work with the Owner's prior approval. § 6.6.7 Deposits lost for causes other than the Construction Manager's negligence or failure to fulfill a specific responsibility in the Contract Documents. § 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 Subject to the Owner's prior approval,expenses incurred in accordance with the Coliction Manager's standard written personnel policy for relocation and temporary living allowances of the Con ction Manager's personnel required for the Work. § 6.7 Other Costs and Emergencies § 6.7.1 Other costs incurred in the performance of the Work if,and to the extent,approved' d ce in writing by the Owner. § 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 Section 10.4 of AIA Document A201-2007. § 6.7.3 Costs of repairing or correcting damaged or nonconforming Work executed by the Construction Manager, Subcontractors or suppliers,provided that such damaged 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 insurance,sureties,Subcon. . tors, ppliers,or others. § 6.7.4 The costs described in Sections 6.1 through 6.7 shall be included in the Cost of the Wor n, 'thstanding any provision of MA Document A201-2007 or other Conditions of the Contract which may req - - Construction Manager to pay such costs,unless such costs are excluded by the provisions of Section . 8. § 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 s ' n dat the Construction Manager's principal office or offices other than the site office, cept 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 th4ii the site office; .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 approved by the Owner,th woul ause the Guaranteed Maximum Price to be exceeded;and .8 Costs for services incurred during the Preconstruction Phase. § 6.9 Discounts, Rebates and Refunds § 6.9.1 Cash discounts obtained on payments made by the Construction Manager shall acc wrier if(1) before making the payment,the Construction Manager included them in an Application for ayment a=id received payment from the Owner,or(2)the Owner has deposited funds with the Construction Manager with which to make payments;otherwise,cash discounts shall accrue to the Construction Manager.Trade discounts,rebates,refunds and AIA Document A133s' - 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 D.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 12 maximum extent possible under the law. This draft was produced by AIA software at 16:49:57 ST on 06/17/2019 under Order No.4048225624 which expires on 09/14/2019, and is not for resale. User Notes: (1831825765) amounts received from sales of surplus materials and equipment shall accrue to the Owner,and the Construction Manager shall make provisions so that they can be obtained. § 6.9.2 Amounts that accrue to the Owner in accordance with the provisions of Section 6.9.1 shall be credited to the Owner as a deduction from the Cost of the Work. § 6.10 Related Party Transactions § 6.10.1 For purposes of Section 6.10,the term"related party"shall mean a parent,subsidia I,affiliate or other entity having common ownership or management with the Construction Manager;any entity • which any stockholder in,or management employee of,the Construction Manager owns any interest in ;xcess of ten percent in the aggregate;or any person or entity which has the right to control the business or affairs o . , -I.,:- ction Manager.The term"related party"includes any member of the immediate family of any pe on identi ed above. § 6.10.2 If any of the costs to be reimbursed arise from a transaction between the Constructi Manager and a related party,the Construction Manager shall notify the Owner of the specific nature of the r,ntemplated 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,authorize a proposed transaction,then the cost incurred shall be included as a cost to be reimbursed,and the Co ction Manager shall procure the Work,equipment,goods or service from the related party,as a Subcontractor,a ording to the terms of Sections 2.3.2.1,2.3.2.2 and 2.3.2.3.If the Owner fails to authorize the transaction,the Co ction Manager shall procure the Work,equipment,goods or service from some person or entity other than a rela party according to the terms of Sections 2.3.2.1,2.3.2.2 and 2.3.2.3. 1-1 § 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 jg substantiate all costs incurred.The accounting and control systems shall be satisfactory to the Owner.The Ownerd the Owner's auditors shall,during regular business hours and upon reasonable notice,be afforded accessto,and shall be permitted to audit and copy,the Construction Manager's records and accounts,including complete lolocumentation 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 fmal payment,or for such longer period as may be required by law. ARTICLE 7 PAYMENTS FOR CONSTRUCTION PHASE SERVICES d § 7.1 Progress Payments § 7.1.1 Based upon Applications for Payment submitted to the Architect by the Construction Manager and Certificates for Payment issued by the Architect,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,or as follows: « » § 7.1.3 Provided that an Application for Payment is received by the Architect not later than the«last »day of a month,the Owner shall make payment of the certified amount to the Construction Manager not later than the«20th »day of the«following»month.If an Application for Payment is received by the Architect er application date fixed above,payment shall be made by the Owner not later than MEM(MI)day after ch Architect receives the Application for Payment. \ (Federal,state or local laws may require payment within a certain period of time.) I § 7.1.4 With each Application for Payment,the Construction Manager shall submit payrolls etty calf accounts, receipted invoices or invoices with check vouchers attached,and any other evidence require by the Owner or Architect to demonstrate that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or exceed progress payments already received by the Construction Manager,less that portion of those payments attributable to the Construction Manager's Fee,plus payrolls for the period covered by the present Application for Payment. AIA Document A133.- 2009 (formerly A121"CMc - 2003). Copyright 0 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 13 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 draft was produced by AIA software at 16:49:57 ET on 06/17/2019 under Order No.4048225624 which expires on 09/14/2019, and is not for resale. User Notes: (1831825765) § 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.The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Architect may require.This schedule,unless objected to by the Architect,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 oe Work as of the end of the period covered by the Application for Payment.The percentage of completion shall b e 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 that 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 allocated to thatortion of the Work in the schedule of values. .j § 7.1.7 Subject to other provisions of the Contract Documents,the amount of each progress ..p yment shall be computed as follows: n .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 schedlie 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 Section 7.3.9 of AIA Document A201-2007; .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,less retainage of percent( %).The C: , ction Manager's Fee shall be computed upon the Cost of the Work at the rate stated in `- •n 5.1 or,if the Construction Manager's Fee is stated as a fixed sum in that Section,shall be . . t that bears the same ratio to that fixed-sum fee as the Cost of the Work bears to a reasonabl: - ii�: e of the probable Cost of the Work upon its completion; .4 Subtract retainage of< »percent( %)from that portion of the Work that .. f 1 truction Manager self-performs; .5 Subtract the aggregate of previous payments made by the Owner; .6 Subtract the shortfall,if any,indicated by the Construction Manager in the documen . i n required by Section 7.1.4 to substantiate prior Applications for Payment,or resulting from errors s .sequently discovered by the Owner's auditors in such documentation;and .7 Subtract amounts,if any,for which the Architect has withheld or nullified a 64'c - or Payment as provided in Section 9.5 of AIA Document A201-2007. § 7.1.8 The Owner and Construction Manager shall agree upon(1)a mutually acceptable pr) ed. - for review and approval of payments to Subcontractors and(2)the percentage of retainage held on Subcon' c Id the Construction Manager shall execute subcontracts in accordance with those agreements. § 7.1.9 Except with the Owner's prior approval,the Construction Manager shall not make advance paments 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 arithmetic verification of the documentation submitted in accordance with Section 7.1.4 or other supporting data;that theArchitect has made exhaustive or continuous on-site inspections;or that the Architect has made examinations t , scertain how or for what purposes the Construction Manager has used amounts previously paid on account of Contract. Such examinations,audits and verifications,if required by the Owner,will be performed by the er's auditors acting in the sole interest of the Owner. -- 1 AIA Document A133'.- 2009 (formerly A121e'CMc - 2003). Copyright ° 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.B. 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 14 maximum extent possible under the law. This draft was produced by AIA software at 16:49:57 ET on 06/17/2019 under Order No.4048225624 which expires on 09/14/2019, and is not for resale. User Notes: (1831825765) § 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 Section 12.2.2 of AIA Document A201-2007,and to satisfy other requirements,if any,which extend beyond fmal payment; .2 the Construction Manager has submitted a final accounting for the Cost of the Work and a final Application for Payment;and .3 a fmal Certificate for Payment has been issued by the Architect. The Owner's final payment to the Construction Manager shall be made no later than 30 days after the issuance of the Architect's fmal Certificate for Payment,or as follows: «as agreed upon between Owner and Construction Manager » § 7.2.2 The Owner's auditors will review and report in writing on the Construction Manage final accounting within 30 days after delivery of the final accounting to the Architect by the Construction M.,ager.Based upon such Cost of the Work as the Owner's auditors report to be substantiated by the Construction M. ge . final accounting, and provided the other conditions of Section 7.2.1 have been met,the Architect will,within.-v=i days after receipt of the written report of the Owner's auditors,either issue to the Owner a final Certificate fo 'a I ent with a copy to the Construction Manager,or notify the Construction Manager and Owner in writing of the . c i''ect's reasons for withholding a certificate as provided in Section 9.5.1 of the AIA Document A201-2007.Th da a periods stated in this Section supersede those stated in Section 9.4.1 of the AIA Document A201-2007.The fedi not responsible for verifying the accuracy of the Construction Manager's fmal accounting. § 7.2.3 If the Owner's auditors report the Cost of the Work as substantiated by the Construction Man er's final accounting to be less than claimed by the Construction Manager,the Construction Manager shall b e itled to request mediation of the disputed amount without seeking an initial decision pursuant to Section 5 of A201— 2007.A request for mediation shall be made by the Construction Manager within 30 days aftee`the onstruction Manager's receipt of a copy of the Architect's final Certificate for Payment.Failure to requet mediation within this 30-day period shall result in the substantiated amount reported by the Owner's auditors becoming binding on the Construction Manager.Pending a final resolution of the disputed amount,the Owner shall pa the onstruction Manager the amount certified in the Architect's final Certificate for Payment. § 7.2.4 If,subsequent to fmal payment and at the Owner's request,the Construction Manager incurs osts described in Section 6.1.1 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 applica er o on the same basis as if such costs had been incurred prior to fmal payment,but not in excess of the Guar ti�e Unum Price. If the Construction Manager has participated in savings as provided in Section 5.2.1,the am, >linf o stich savings shall be recalculated and appropriate credit given to the Owner in determining the net amo to paid by the Owner to the Construction Manager. ARTICLE 8 INSURANCE AND BONDS For all phases of the Project,the Construction Manager and the Owner shall purchase and n1 aintain insurance,and the Construction Manager shall provide bonds as set forth in Article 11 of AIA Document A1201-2007. (State bonding requirements, if any, and limits of liability for insurance required in Article 11 ofA1A Document A201-2007.) i.....„ Type of Insurance or Bond Limit of Liability or Bond Amount($0.00) Payment and Performance Bonds 100% ARTICLE 9 DISPUTE RESOLUTION § 9.1 Any Claim between the Owner and Construction Manager shall be resolved in accord. ce with •e provisions set forth in this Article 9 and Article 15 of A201-2007.However,for Claims arising from o elating the Construction Manager's Preconstruction Phase services,no decision by the Initial Decision alters . 1 be required as a condition precedent to mediation or binding dispute resolution,and Section 9.3 of this greement;shall not apply. AIA Document A133'.- 2009 (formerly A121"CMc - 2003). Copyright ° 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. NANNING: This AIA` Document is protected by U.B. Copyright Law and International Treaties. Unauthorized reproduction or 15 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 draft was produced by AIA software at 16:49:57 ET on 06/17/2019 under Order No.4048225624 which expires on 09/14/2019, and is not for resale. User NOtes: (1831825765) § 9.2 For any Claim subject to,but not resolved by mediation pursuant to Section 15.3 of AIA Document A201- 2007,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.) [« »] Arbitration pursuant to Section 15.4 of AIA Document A201-2007 [X«» ] Litigation in a court of competent jurisdiction [« s ] Other: (Specify) § 9.3 Initial Decision Maker The Architect will serve as the Initial Decision Maker pursuant to Section 15.2 of AIA Document A201-2007 for Claims arising from or relating to the Construction Manager's Construction Phase services, less the parties appoint below another individual,not a party to the Agreement,to serve as the Initial Decis' er. (If the parties mutually agree, insert the name, address and other contact information of the it Decision Maker, if other than the Architect.) « 9» « » . .,,,.eo4,-le,..,44;;.i.tiopesto-47414a,44.-.-.7 ,4*-fgi.tbet.' 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 m, i�'u.to this Agreement upon not less than seven days'written notice to the Construction Manager for - ►'t;I 's convenience and without cause,and the Construction Manager may terminate this Agreement,upon not 1- i seven days' written notice to the Owner,for the reasons set forth in Section 14.1.1 of A201-2007. § 10.1.2 In the event of termination of this Agreement pursuant to Section 10.1.1,the Construction .) ager shall be equitably compensated for Preconstruction Phase services performed prior to receipt of a notice of to ,o's.tion.In no event shall the Construction Manager's compensation under this Section exceed the compensation se orth in Section 4.1. li \, § 10.1.3 If the Owner terminates the Contract pursuant to Section 10.1.1 after the commencent of the Construction Phase but prior to the execution of the Guaranteed Maximum Price Amendment,the Owner shall pay to the Construction Manager an amount calculated as follows,which amount shall be in addition to any compensation paid to the Construction Manager under Section 10.1.2: .1 Take the Cost of the Work incurred by the Construction Manager to the date of termination; .2 Add the Construction Manager's Fee computed upon the Cost of the Work to the date of termination at the rate stated in Section 5.1 or,if the Construction Manager's Fee is stated as a fixed sum in that Section,an amount that bears the same ratio to that fixed-sum Fee as the Cost of the Work at the time of termination bears to a reasonable estimate of the probable Cost of the Work upon its completion; and .3 Subtract the aggregate of previous payments made by the Owner for Construction services. Ii The Owner shall also pay the Construction Manager fair compensation,either by purchase or rental he election of the Owner,for any equipment owned by the Construction Manager which the Owner elects ,o retain d which is not otherwise included in the Cost of the Work under Section 10.1.3.1.To the extent that thewner lects to take legal assignment of subcontracts and purchase orders(including rental agreements),the Cons, ction Manager shall, as a condition of receiving the payments referred to in this Article 10,execute and deliver all such pap rs and take all such steps,including the legal assignment of such subcontracts and other contractual rights of the Construction Manager,as the Owner may require for the purpose of fully vesting in the Owner the rights and benefits of the Construction Manager under such subcontracts or purchase orders.All Subcontracts,purchase orders and rental AIA Document A133'- 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 Q.S. Copyright Law and International Treaties. Unauthorized reproduction or 16 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 draft was produced by AIA software at 16:49:57 ET on 06/17/2019 under Order No.4048225624 which expires on 09/14/2019, and is not for resale. user Notes: (1831825765) agreements entered into by the Construction Manager will contain provisions allowing for assignment to the Owner as described above. If the Owner accepts assignment of subcontracts,purchase orders or rental agreements as described above,the Owner will reimburse or indemnify the Construction Manager for all costs arising under the subcontract,purchase order or rental agreement,if those costs would have been reimbursable as Cost of the Work if the contract had not been terminated.If the Owner chooses not to accept assignment of any subcontract,purchase order or rental agreement that would have constituted a Cost of the Work had this agreement not been te .. ated,the Construction Manager will terminate the subcontract,purchase order or rental agreement and the Owner ill pay the Construction Manager the costs necessarily incurred by the Construction Manager because of such te ..'.T ion. § 10.2 Termination Subsequent to Establishing Guaranteed Maximum Price 1 Following execution of the Guaranteed Maximum Price Amendment and subject to the provlisions of Section 10.2.1 and 10.2.2 below,the Contract may be terminated as provided in Article 14 of AIA Docum ' A201-2007. § 10.2.1 If the Owner terminates the Contract after execution of the Guaranteed Maximum ce Amendment,the amount payable to the Construction Manager pursuant to Sections 14.2 and 14.4 of A201-2007 shall not exceed the amount the Construction Manager would otherwise have received pursuant to Sections 10.1,2 anti 10.1.3 of this Agreement. § 10.2.2 If the Construction Manager terminates the Contract after execution of the Guaranteed Maximum Price Amendment,the amount payable to the Construction Manager under Section 14.1.3 of A20 -120PF shall not exceed the amount the Construction Manager would otherwise have received under Sections 10.1.2 10.1.4 above, except that the Construction Manager's Fee shall be calculated as if the Work had been fullcompleted by the Construction Manager,utilizing as necessary a reasonable estimate of the Cost of the Work for Work not actually completed. § 10.3 Suspension The Work maybe suspended by the Owner as provided in Article 14 of AIA Document A201 I' .In such case, the Guaranteed Maximum Price and Contract Time shall be increased as provided in Sectio r 1' r, of AIA Document A201-2007,except that the term"profit"shall be understood to mean the Cons. •.. 1 anager's Fee as described in Sections 5.1 and 5.3.5 of this Agreement. ARTICLE 11 MISCELLANEOUS PROVISIONS § 11.1 Terms in this Agreement shall have the same meaning as those in A201-2007. § 11.2 Ownership and Use of Documents Section 1.5 of A201-2007 shall apply to both the Preconstruction and Construction Phases. n § 11.3 Governing Law Section 13.1 of A201-2007 shall apply to both the Preconstruction and Construction Phases. § 11.4 Assignment 1 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. Except as provided in Section 13.2.2 of A201-2007,neither party to the Contract shall assign 4 e Q.tract as a whole without written consent of the other.If either party attempts to make such an assignm:I with. t such consent,that party shall nevertheless remain legally responsible for all obligations under the •.ntra• .' § 11.5 Other provisions: AIA Document A133.- 2009 (formerly A121efCMc - 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 17 maximum extent possible under the law. This draft was produced by AIA software at 16:49:57 ET on 06/17/2019 under Order No.4048225624 which expires on 09/14/2019, and is not for resale. User Notes: (1831825765) 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 maybe amended only by written instrument signed by both Owner and Construction Manager. § 12.2 The following documents comprise the Agreement: .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 s a Fee with a Guaranteed Maximum Price .2 AIA Document A201-2007,General Conditions of the Contract for Constru n .3 AIA Document E201 TM_2007,Digital Data Protocol Exhibit,if completed,o fol ing: «N/A .4 AIA Document E202T"_2008,Building Information Modeling Protocol Exhibit,if completed,or the following: <N/A» .5 Other documents: (List other documents, if any,forming part of the Agreement.) This Agreement is entered into as of the day and year first written above. OWNER(Signature) CONSTRUCTION MANAGER (Signature) «Floyd Batiste »«CEO » «Nathan Rivers »«President » (Printed name and title) (Printed name and title) AIA Document A133*. - 2009 (formerly A121efCMc - 2003). Copyright C 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This ALC 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 18 maximum extent possible under the law. This draft was produced by AIA software at 16:49:57 ET on 06/17/2019 under Order No.4048225624 which expires on 09/14/2019, and is not for resale. User Notes: (1831825765)