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Home My WebLink AboutESI CMGC Services Fire Station No. 6 AIA A133 Agreement to- o F®esDocument 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 Pivot North Architecture 1101 West Grove Street, Boise, ID 83702 The Owner's Designated Representative: (Name, address and other information) Charlie Butterfield City of Meridian 33 East Broadway Avenue Meridian, ID 83642 Telephone: 208-888-4433 Fax: 208-887-4813 The Construction Manager's Designated Representative: (Name, address and other information) AIA Document A133TM —2009 (formerly A121 T CMc —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, 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) ADDITIONS AND DELETIONS: The author of this document has AGREEMENT made as of the 22nd day of March in the year 2018 added information needed for its (In words, indicate day, month and year) completion. The author may also have revised the text of the original BETWEEN the Owner: AIA standard form. An Additions and (Name, legal status and address) Deletions Report that notes added information as well as revisions to the City of Meridian standard form text is available from 33 East Broadway Avenue the author and should be reviewed. A Meridian, ID 83642 vertical line in the left margin of this document indicates where the author and the Construction Manager: has added necessary information (Name, legal status and address) and where the author has added to or deleted from the original AIA text. Engineered Structures, Inc This document has important legal 3330 East Louise Drive, Ste. 300 consequences. Consultation with an Meridian, ID 83642 attorney is encouraged with respect to its completion or modification. for the following Project: (Name and address or location) AIA Document TM' General Conditions ons of thhee Contract Meridian Fire Station #6 for Construction, is adopted in this Overland Road and Locust Grove document by reference. Do not use with other general conditions unless Meridian, ID this document is modified. The Architects: (Name, legal status and address) Rice Fergus Miller 275 Fifth Street, Ste 100, Bremerton, WA 98337 Pivot North Architecture 1101 West Grove Street, Boise, ID 83702 The Owner's Designated Representative: (Name, address and other information) Charlie Butterfield City of Meridian 33 East Broadway Avenue Meridian, ID 83642 Telephone: 208-888-4433 Fax: 208-887-4813 The Construction Manager's Designated Representative: (Name, address and other information) AIA Document A133TM —2009 (formerly A121 T CMc —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, 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) Joe Jackson, Vice President of Operations Engineered Structures, Inc. 3330 East Louise Drive, Ste. 300 Meridian, ID 83642 Telephone Number: 208-362-3040 Fax Number: 208-362-3113 Email Address: joejackson@esiconstruction.com The Architect's Designated Representative: (Name, address and other information) David Fergus Rice Fergus Miller Gunner Gladics Pivot North Architecture The Owner and Construction Manager agree as follows. AIA Document A133TM —2009 (formerly A121 T CMe —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° 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) 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 ARTICLE 1 GENERAL PROVISIONS § 1.1 The Contract Documents The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary 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 between it and the Owner by this Agreement and covenants with the Owner to cooperate with the Architect and exercise the Construction Manager's best 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; to use its best efforts to manage the Project in the best and most sound way; and to perform the Work in an expeditious and economical manner consistent with the Owner's interests. The Construction Manager acknowledges that it owes a contractual duty to the Owner for all of its construction management services in connection with the Project. The Construction Manager covenants and represents that it has the professional expertise, manpower, and capacity to undertake successfully the services that it shall provide herein to satisfactorily manage and complete 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. § 1.3 General Conditions For the Preconstruction Phase, AIA Document A201TM-2007, General Conditions of the Contract for Construction, as revised for this project, shall apply only as specifically provided in this Agreement. For the Construction Phase, the AIA Document A133TM —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° 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) general conditions of the contract shall be as set forth in A201-2007, as revised for this project, which document is incorporated herein by reference. The term "Contractor" as used in A201-2007 shall mean the Construction Manager. 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 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 advise 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, costs of alternative designs or materials, preliminary budgets, life -cycle data, and possible cost reductions. § 2.1.2.1 In conjunction with the Architect and Owner, the Construction Manager will develop a formal comprehensive management and scope of Work plan. The Owner will decide whether to make Project changes. § 2.1.2.2 The Construction Manager will review the design and make suggestions to the Owner as to value engineering, constructability, suitability of materials and equipment, scheduling, time, methods and sequence of construction, clarity, consistency and coordination of documentation, to reduce project construction cost, to reduce operational costs or to improve the life of the building. The Owner will decide whether to make Project changes. However, the Construction Manager is not a licensed design professional and assumes no responsibility for the design of the Project or the design of the approved manufacturing systems (such as trusses and fire protection systems). - Except as otherwise set forth in this Contract, any suggestions by the Construction Manager to modify the design of the Project to reduce costs will be based on Construction Manager's knowledge and experience as a construction contractor and Construction Manager, and not as a design professional. § 2.1.2.3 The Construction Manager shall develop, in coordination with Owner, a system for hacking project costs and cash flow. § 2.1.2.4 The Construction Manager shall attend and, if requested by Owner, schedule and lead periodic project meetings and special meetings for the exchange of information concerning the project, and review of design progress, permits and approvals. All meetings shall be held at a location and time convenient to the Owner's Designated Representative. § 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 issuance of a Project schedule shall be a representation and warranty to owner that Construction Manager has thoroughly and carefully examined the Project schedule and found it to be a reasonable and adequate amount of time for Construction Manager to perform the Work, and includes reasonable periods for the review of submittals, tests, inspections and other matters by Owner, Architect and any governmental authorities. 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; components of the Work; times of commencement and completion required of each Subcontractor; ordering and delivery of products, including those that must be ordered well in advance of construction; and the occupancy requirements of the Owner. AIA Document A133T. — 2009 (formerly A121 TMCMC — 2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. Init. WARNING: This AIAO 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) § 2.1.4 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 suggests 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 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, detailed estimates of the Cost of the Work and value engineering analysis of increasing detail and refinement and allowing for the further development of the design until such time as the Owner and Construction 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 recommendations for corrective action. § 2.1.5.3 Owner may require additional cost estimates to confirm budget due to modification made via design workshops, and the Construction Manager shall work with the Architect to reconcile any differences. § 2.1.6 Subcontractors and Suppliers The Construction Manager shall seek to develop bidders' interest in the Project. The Construction Manager shall develop the scope of work and prepare bid packages in concert with the Architect (Owner will provide a template for the bid packages) for each trade to be bid and participate in the prequalification and qualification of each of the Subcontractors and Sub -subcontractors as defined by law. § 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 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 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 AIA Document A133TM —2009 (formerly A121 WCMc —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° 5 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and isnot for resale. User Notes: (1328836723) 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. § 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; .2 A list of the clarifications and assumptions made by the Construction Manager in the preparation of the Guaranteed Maximum Price proposal, including assumptions under Section 2.2.2, to supplement the information provided by the Owner and contained in the Drawings and Specifications; .3 A statement of 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 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. § 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 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 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. § 2.2.10 The Construction Manager's submittal of the Guaranteed Maximum Price proposal for the Owner's review and acceptance shall constitute Construction Manager's representation and warranty to Owner that it has carefully and thoroughly examined the Contract Documents and found them to be reasonably coordinated, complete and suitable for construction of the Work in the Contract Time and for the Guaranteed Maximum Price. AIA Document A133Tm — 2009 (formerly A121 T"CMc — 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® 6 Document, or 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) § 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. § 2.3.1.3 The Contract Time shall be measured from the date of Commencement. § 2.3.1.4 The Construction Manager shall achieve Substantial Completion of the entire Work no later than Twelve (12) months from notice to proceed. The construction schedule will be added by Amendment at such time when enough information is available to accurately project the construction schedule. �§ 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. The Construction Manager may provide a self -performing bid for specific scope(s) of work. The Construction Manager shall obtain bids from Subcontractors and from suppliers of materials or equipment fabricated especially for the Work and shall deliver such bids to the Architect and Owner. The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection. § 2.3.2.2 If the Guaranteed Maximum Price has been established and when a specific bidder (1) is 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 Deleted § 2.3.2.4 The Construction Manager may recommend a specific bidder that may be considered a "related party" according to Section 6.10, so long as the Construction Manager notifies the Owner of such relationship and the specific nature of the contemplated transaction, according to Section 6.10.2. § 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 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. § 2.3.2.7.1 The Construction Manager shall develop and implement a change order control system. § 2.3.2.7.2 The Construction Manager shall establish and implement a Quality Control program including monitoring the quality programs of all Subcontractors. AIA Document A133M —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° 7 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) § 2.3.2.7.3 The Construction Manager shall monitor closely the progress of construction of each subcontractor, prepare a construction schedule report at least monthly and, if and as necessary, prepare and submit recovery schedules. § 2.3.2.7.4 The Construction Manager shall furnish monthly reports concerning the progress of the work which address: (a) compliance with the construction schedule, (b) status of testing and inspection activities performed by the Construction Manager and Subcontractors, (c) status of shop drawings and submittals, (d) status of change orders, and (e) other matters relating to the progress of work as directed by 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. § 2.3.2.9 The Construction Manager shall be available to meet with the Owner as shall be reasonably scheduled by the Owner's designated representative. The Construction Manager shall attend, and, if requested by Owner, shall schedule and lead, regular project and construction progress meetings, and conduct regular meetings at the site with each Subcontractor. All meetings shall be held at a location and time convenient to the Owner's Designated Representative. § 2.3.2.10 The Construction Manager shall assume responsibility for project safety in accordance with OSHA requirements. § 2.3.2.11 The Construction Manager will work with the Owner to coordinate scheduling, installation of furniture, fixtures and equipment to be installed by Owner. The Construction Manager will work with the Owner to schedule, stage, and move Owner's personnel and operations into the building in an organized and systematic manner, so as to minimize personnel down-time. § 2.3.2.12 The Construction Manager shall implement procedures for reviewing and processing requests for information or clarifications and interpretations of the Contract Documents; shop drawings, samples, and all other submittals, contract schedule adjustments, change order proposals, proposals for substitutions, payment applications, as -built drawings, and maintenance of logs using the internet-based project management software. § 2.4 Professional Services Section 3.12.10 of A201-2007 shall apply to both the Preconstruction and Construction Phases. § 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 requirements for and limitations on the Project, including a written program 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 Deleted § 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. Upon the reasonable request of the Construction Manager during the Preconstruction Phase, the Owner shall furnish the following information or services with AIA Document A133Tm —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° 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) reasonable promptness and at the Owner's expense. 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. 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 Section 4.2.1 of A201-2007, the Architect does not have such authority. The term "Owner" means the Owner or the Owner's authorized representative. § 3.2.1 Legai 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 in AIA Document B133Ti" 2014, Standard Form of Agreement Between Owner and Architect, as modified for this Project. The Owner shall provide the Construction Manager a copy of the executed agreement between the Owner and the Architect, and any further modifications to the agreement. 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: (Insert amount of, or basis for, compensation and include a list of reimbursable cost items, as applicable) Lump sum value of Twenty -Five Thousand and no/100 Dollars ($25,000.00) This lump sum value represents 50% of the total estimated preconstruction cost on the understanding that both the Meridian & Caldwell Fire Stations proceed through the Preconstruction Phase Schedule as identified in 4.1.3. If both stations do not move forward in conjunction with each other the preconstruction phase fee will be equitably adjusted AIA Document A133TM —2009 (formerly A121 TM CMc —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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018,.and is not for resale. User Notes: (1328836723) per 4.1.4 to address increased proportional costs of Owner for Preconstruction services performed on a faster track than the Caldwell Fire Station. § 4.1.3 If the Preconstruction Phase services covered by this Agreement have not been completed within eight ( 8 ) 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. Owner and Construction Manager agree to the following schedule: - 100% SDs — 7/6/18 - 100%DDs — 8/20/18 - 50% CDs —10/31/18 - 100% CDs —1/4/19 - Project Out to Bid —1/7/19 - Bid Opening —1/29/19 - Construction Start — 3/4/19 - Project Completion — 2/28/20 § 4.1.4 Compensation based on Direct Personnel Expense includes the direct salaries of the Construction Manager's personnel providing Preconstruction Phase services on the Project and the Construction Manager'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. § 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 Net 30 days of City's receipt 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. NA 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 Construction Manager's Fee) Four and Three -Quarters Percent (4.75%) § 5.1.2 The method of adjustment of the Construction Manager's Fee for changes in the Work: Four and Three -Quarters Percent (4.75%) § 5.1.3 Limitations, if any, on a Subcontractor's overhead and profit for increases in the cost of its portion of the Work: Ten Percent (10%) Overhead on direct cost of work and Five Percent (5%) Fee on direct cost of work. § 5.1.4 Rental rates for Construction Manager -owned equipment shall not exceed seventy-five percent ( 75 %) of the standard rate paid at the place of the Project. § 5.1.5 Unit prices, if any: N/A (Identify and state the unit price; state the quantity limitations, if any, to which the emit price will be applicable) AIA Document A133TM — 2009 (formerly A121 TM CMc — 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° 10 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 13:02:31 on 07/1312018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) § 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, the Construction Manager shall bear such costs in excess of the Guaranteed Maximum Price without reimbursement or additional compensation from the Owner. (Paragraph deleted) The savings shall be the difference as of the date of Final Completion of the Work between (1) the sum of the Cost of Work and the Contractor's Fee and (2) the Guaranteed Maximum Price. All savings shall be to the benefit of the Owner. § 5.2.2 The Guaranteed Maximum Price is subject to additions and deductions by Change Order as provided in the Contract Documents and the Date of Substantial Completion shall be subject to adjustment as provided in the Contract Documents. § 5.2.2.1 The Estimated Cost of the Work shall include the CM/GC's contingency, a sum established the CM/GC for the G/CM's exclusive use to cover additional development of Plans and Specifications and unforeseen costs which are properly reimbursable as Cost of the Work but which are not the basis for a Change Order. The CM/GC's Contingency is assigned for use by the CM/GC to pay for project issues that are with in control such as subcontractor coordination, insufficient coordination of the design drawings, unforeseeable general conditions expenses, buy-out error, and scope gaps. It may also be used for some issues beyond the CM/GC's control such as lost time, increases in bid contracts, subcontractor failure, and expediting costs for critical materials. CM/GC's contingency is not available for Owner directed design or scope changes and unforeseen or differing site conditions. CM/GC Contingency costs will be reviewed monthly by the Owner for conformance with the contract. Damaged, non -conforming or out -of -sequence work does not constitute a change order, is not an addition to the cost of work and may not be paid for out of CM/GC Contingency. Under no circumstances will any project funds be used for acts of negligence or violations of statutes. § 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. § 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 assigned to them in AIA Document A201-2007 and shall not be modified by Sections 5.1 and 5.2, Sections 6.1 through 6.7, and Section 6.8 of this Agreement. Adjustments to subcontracts awarded with the Owner's prior consent on the 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 "costs" as used in the above -referenced provisions of AIA Document A201-2007 shall mean the Cost of the Work as defined in Sections 6.1 to 6.7 of this Agreement and the term "fee" shall mean the Construction Manager's Fee as defined in Section 5.1 of this Agreement. AIA Document A1337m —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° 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) § 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 establish 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 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. The Cost of the Work shall include only the items set forth in Sections 6.1 through 6.7. § 6.1.1.1 Costs as defined herein shall be actual costs paid by the Construction Manager, less all discounts, rebates, and salvages that shall be taken by the Construction Manager, subject to Article 6.9 of this Agreement. All payments made by the Owner pursuant to this Article 6, whether those payments are actually made before or after the execution of the Contract, are included within the Guaranteed Maximum Price specified in Paragraph 5.2 above; provided, however, that in no event shall the Owner be required to reimburse the Construction Manager for any portion of the Cost of the Work incurred prior to the Commencement Date unless the Construction Manager has received the Owner's written consent prior to incurring such cost. § 6.1.1.2 Notwithstanding the breakdown or categorization of any costs to be reimbursed in this Article 6 or elsewhere in the Contract Documents, there shall be no duplication of payment in the event any particular item for which payment is requested can be characterized as falling into more than one of the types of compensable or reimbursable categories. § 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 § 6.2.1 Wages of construction workers directly employed by the Construction Manager to perform the construction of the Work at the site or, with the Owner's prior approval, at off-site locations. § 6.2.2 Wages or salaries of the Construction Manager's supervisory and administrative personnel assigned to the Project and/or who perform tasks specifically related to the Project. Project Manager hourly rate - $69.00 Estimator hourly rate - $70.00 Assistant Project Manager hourly rate - $53.00 Project Coordinator hourly rate $32.00 Project Engineer hourly rate - $58.00 Superintendent hourly rate - $88.00 § 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 materials or equipment 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, contributions, assessments and benefits required by law or collective bargaining agreements and, for personnel not covered by such agreements, 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 Sections 6.2.1 through 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. § 6.3 Subcontract Costs Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts. AIA Document A133Tm —2009 (formerly A121 TMCMc —2003). Copyright© 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. [nit. WARNING: This AIA° Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA° 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 0911912018, and is not for resale. User Notes: (1328836723) § 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 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 § 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. Costs for items not fully consumed by the Construction Manager shall mean fair market value. § 6.5.2 Rental charges for temporary facilities, machinery, equipment and hand tools not customarily 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 equipment 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 telephone calls, postage and parcel delivery charges, telephone service at the site and reasonable petty cash expenses of the site office. § 6.5.5 That portion of the reasonable expenses of the Construction Manager's supervisory or administrative 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 location, subject 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 Documents that can be directly attributed to this Contract. Reimbursable costs associated with Subcontractor -provided bonds are subject to the limitations set forth in Article 11 of AIA Document A201-2007. Self-insurance for either full or partial amounts of the coverages required by the Contract Documents, with the Owner's prior approval. Insurance coverages provided by Construction Manager and outlined in Section 8 of this Agreement shall be charged at the rate of .838%, calculated on the direct cost of work. Builders Risk insurance is not included; however if Owner elects Construction Manager to provide Builders Risk insurance, Construction Manager to provide alternate pricing for this cost. § 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 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 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 Section 6.7.3. AIA Document A133TM —2009 (formerly A121 T'"CMc — 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® 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) § 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 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. (Paragraph deleted) § 6.7 Other Costs and Emergencies § 6.7.1 Other costs incurred in the performance of the Work if, and to the extent, approved in advance 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, Subcontractors, suppliers, or others; provided that any absence of collectible insurance is not due to the Construction Manager's breach of any contract for insurance. § 6.7.4 The costs described in Sections 6.1 through 6.7 shall be included in the Cost of the Work, notwithstanding any provision of AIA Document A201-2007 or other Conditions of the Contract which may require the Construction Manager to pay such costs, unless such costs are excluded by the provisions of Section 6.8. § 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 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; .3 Overhead and general expenses, except as may be expressly included in Sections 6.1 to 6.7,- .4 .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, that would cause the Guaranteed Maximum Price to be exceeded; and .8 Costs for services incurred during the Preconstruction Phase. AIA Document A133TM —2009 (formerly A121 T' CMc —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° 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) § 6.9 Discounts, Rebates and Refunds § 6.9.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the Owner if (1) before making the payment, the Construction Manager included them in an Application for Payment and 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 amounts received fiom sales of surplus materials and equipment shall accrue to the Owner, and the Construction Manager shall make provisions so that they can be obtained. The Construction Manager shall not obtain for its own benefit any discounts, rebates or refunds in connection with the Work prior to providing the Owner with at least seven (7) days' prior notice of the same and the opportunity to furnish such funds to obtain such discount, rebate or refund on behalf of the Owner. § 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, subsidiary, affiliate or other entity having common ownership or management with the Construction Manager; any entity in which any stockholder in, or management employee of, the Construction Manager owns any interest in excess of ten percent in the aggregate; or any person or entity which has the right to control the business or affairs of the Construction Manager. The term "related party" includes any member of the immediate family of any person identified above. § 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, equipment, goods or service from the related party, as a Subcontractor, according 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 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, 2.3.2.2 and 2.3.2.3. § 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 are consistent with generally accepted accounting principles consistently applied and as may be necessary for proper financial management under this Contract and to substantiate all costs 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 including reasonable supporting documentation 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 last day of the following month. If an Application for Payment is received by the Architect after the application date fixed above, AIA Document A133TM —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° 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. / This document was produced by AIA software at 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) payment shall be made by the Owner as soon as the necessary approvals can reasonably be attained but not later than Thirty ( 30 ) days after the Owner receives the Application for Payment. (Federal, state or local laws may require payment within a certain period of time) § 7.1.4 With each Application for Payment, the Construction Manager shall submit Subcontractor's Application for Payment cover sheet and any other evidence required or requested 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. § 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 of the Work as of the end of the period covered by the Application for Payment. The percentage of completion shall be the lesser of (1) the percentage of that portion of the Work which has actually been completed, or (2) the percentage obtained by dividing (a) the expense 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 that portion of the Work in the schedule of values. § 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 ofthe 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 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 five percent ( 5.0 %). 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 Subtract retainage of five percent ( 5.0 %) from that portion of the Work that the Construction 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 documentation required by Section 7.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Owner's auditors in such documentation; and .7 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Section 9.5 of AIA Document A201 2007, as modified for this Project, and any other amounts properly held by the Owner at the time of each progress payment. § 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. Five percent (5%) retainage shall be withheld on all Subcontractors. § 7.1.9 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. AIA Document A133Tm —2009 (formerly A121 TMCMe — 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° 16 Document, or any portion of it, may result in severe civil and criminal penalties, and wlll be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 13:02:31 on 07/1 312 01 8 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) § 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 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. § 7.2 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 final 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 final 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 final Certificate for Payment, or as follows: Upon substantial completion of the work, the owner shall pay the Construction Manager the unpaid balance of the Contract Sum, less one -hundred -fifty percent (150%) of the cost of completing any unfinished items as agreed to between the Owner and Construction Manager as to extent and time for completion. The Owner thereafter shall pay the Construction Manager monthly the amount retained for unfinished items as each item is completed § 7.2.2 The Owner's auditors will review and report in writing on the Construction Manager's final accounting within 30 days after delivery of the final accounting to the Architect by the Construction Manager. Based upon such Cost of the Work as the Owner's auditors report to be substantiated by the Construction Manager's final accounting, and provided the other conditions of Section 7.2.1 have been met, the Architect will, within seven days after receipt of the written report of the Owner's auditors, either issue to the Owner a final Certificate for Payment with a copy to the Construction Manager, or notify the Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided in Section 9.5.1 of the AIA Document A201-2007. The time periods stated in this Section supersede those stated in Section 9.4.1 of the AIA Document A201-2007. The Architect is not responsible for verifying the accuracy of the Construction Manager's final accounting. § 7.2.3 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 shall be entitled to request mediation of the disputed amount without seeking an initial decision pursuant to Section 15.2 of A201-2007. A request for mediation shall be made by the Construction Manager within 30 days after the Construction Manager's receipt of a copy of the Architect's final Certificate for Payment. Failure to request 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 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 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 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. If the Construction Manager has participated in savings as provided in Section 5.2.1, the amount of such savings shall be recalculated and appropriate credit given to the Owner in determining the net amount to be paid by the Owner to the Construction Manager. AIA Document A133T" —2009 (formerly A121 TMCMc — 2003). Copyright O 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° 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) 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 in Article 11 of AIA Document A201-2007. (State bonding requirements, if any, and limits of liability for insurance required in Article 11 ofA1A Document A201-2007.) Type of Insurance or Bond Limit of Liability or Bond Amount ($0.00) Workers' Compensation As mandated by state and federal law. Employers' Liability $1,000,000.00 Commercial General Liability $1,000,000.00 Each Occurrence (incl. Premises -Operations, Independent Contractors' Protective, Products -Completed Operations, Contractual Liability, Personal Injury and Broad Form Property Damage (incl. coverage for Explosion, Collapse and Underground hazards)) General Aggregate $2,000,000.00 (w/$10,000,000.00 Umbrella) Personal and Advertising Injury $1,000,000.00 Products -Completed Operations Aggregate $2,000,000.00 Automobile Liability $1,000,000.00 Each Accident (Combined Single Limit) (incl. owned, non -owned and hired vehicles) for bodily injury and property damage) § 8.1 The Owner shall be an additional insured under Construction Manager's Commercial General Liability policy. § 8.2 INSURANCE REQUIRED OF THE OWNER During both phases of the Project, the Owner shall purchase and maintain liability and property insurance. Such insurance shall be written for not less than the following limits, or greater if required by law: Type of Insurance or Bond Limit of Liability or Bond Amount ($0.00) Property Insurance (Builders, All Risk) Deductible Per Occurrence (Owner Responsibility) Aggregate Deductible (Owner Responsibility) Boiler and Machinery Insurance (If not a blanket policy, list the objects to be insured) 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 Article 15 of A201-2007. However, for Claims arising from or relating to the Construction Manager's Preconstruction Phase services, no decision by the Initial Decision Maker shall be required as a condition precedent to mediation or binding dispute resolution, and Section 9.3 of this Agreement shall not apply. § 9.2 The parties shall endeavor to resolve their disputes by mediation which, unless the parties mutually agree otherwise shall be administered by the parties. A request for mediation shall be made in writing and delivered to the other party to the Contract. The request may be made concurrently with the filing of litigation, but in the event litigation is filed, the mediation shall proceed in advance of litigation, which shall be stayed pending mediation. Written agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. For any Claim subject to, but not resolved by mediation, the method of binding dispute resolution shall be as follows: AIA Document A133TM —2009 (formerly A121 T"CMc — 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° 18 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) [ X ] Litigation in a court of competent jurisdiction. Any Mediation or trial arising out of or relating to the Contract shall be commenced and conducted in Ada County, Idaho. § 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, unless the parties appoint below another individual, not a party to the Agreement, to serve as the Initial Decision Maker. (If the parties mutually agree, insert the name, address and other contact information of the Initial Decision Maker, if other than the Architect.) 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 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 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 If the Owner terminates the Contract pursuant to Section 10. 1.1 after the commencement 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; 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 Subtract the aggregate of previous payments made by the Owner for Construction Phase services. The Owner shall also pay the Construction Manager fair compensation, either by purchase or rental at the election of the Owner, for any equipment owned by the Construction Manager which the Owner elects to retain and which is not otherwise included in the Cost of the Work under Section 10.1.3.1. To the extent that the Owner elects to take legal assignment of subcontracts and purchase orders (including rental agreements), the Construction Manager shall, as a condition of receiving the payments referred to in this Article 10, execute and deliver all such papers 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 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 terminated, the Construction Manager will terminate the subcontract, purchase order or rental agreement and the Owner will pay the Construction Manager the costs necessarily incurred by the Construction Manager because of such termination. AIA Document A133Tm —2009 (formerly A121 TMCMc — 2003). Copyright© 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. [nit. 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. / This document was produced by AIA software at 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) § 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 in Article 14 of AIA Document A201-2007. § 10.2.1 If the Owner terminates the Contract after execution of the Guaranteed Maximum Price 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 and 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 A201-2007 shall not exceed the amount the Construction Manager would otherwise have received under Sections 10. 1.2 and 10. 1.3 above, except that the Construction Manager's Fee shall be calculated as if the Work had been fully completed 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 may be suspended by the Owner as provided in Article 14 of AIA Document A201-2007, as modified for this Project. In such case, the Guaranteed Maximum Price and Contract Time shall be increased as provided in Section 14.3.2 of AIA Document A201-2007, as modified for this Project, except that the term "profit" shall be understood to mean the Construction Manager'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, as modified for this Project. § 11.2 Ownership and Use of Documents Section 1.5 of A201-2007 shall apply to both the Preconstruction and Construction Phases. § 11.3 Governing Law Section 13.1 of A201-2007, as modified for this Project, shall apply to both the Preconstruction and Construction Phases. § 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. Except as provided in Section 13.2.2 of A201 2007, as modified for this Project, neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make 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 Owner shall have the right to directly communicate with any person or entity related to the Project about any matter, whether or not such matter is related to the Project; provided, however, binding communications under this Agreement shall only be made through the proper protocols set forth in this Agreement. Owner shall not interfere with the Construction Manager's coordination of its Subcontractors and Suppliers. Construction Manager shall not prohibit, limit or condition any employee or subcontractor of any tier, or any other person, from separately communicating with Owner for any matter or purpose, whether or not such matter is related to the Project, except where Owner has interfered with Construction Manager's coordination and management of its Subcontractors or Suppliers § 11.5.2 In the event of any controversy, claim or action being filed or instituted between the parties to interpret or enforce the terms of this Agreement or arising from the breach of any provision hereof (whether sounding in tort, AIA Document A133T1' —2009 (formerly A121 TMCMc — 2003). Copyright O 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 AIX' 20 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for. resale. User Notes: (1328836723) contract or otherwise), the prevailing party shall be entitled to receive from the other party reasonable attorneys' fees, court costs, expert witness fees and other costs and expenses of such action in any appeal there from. 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 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 Plus a Fee with a Guaranteed Maximum Price, as modified for this Project. .2 AIA Document A201-2007, General Conditions of the Contract for Construction, as modified for this Project. 3 AIA Document A133 — 2009, Exhibit A, Guaranteed Maximum Price Amendment to be executed at a later date after the project has been bid out. .4 (Paragraphs deleted) Other documents: (List other documents, if any, forming part of the Agreement) This Agreement is entero e day and year first writl A ER (Si t e eye /V'6N/0 r (Printed name and title) Joe Jackson, Vice President (Printed name and title) AIA pocu3nent A733t" 2009 (formerly A121vmCMC— 2003). Copyrlght&r 1891, 2003 and 2009 by TheArnerican Institute of ArchltecM All rights reserved, Init. WARNING: This AIA) Document is protected by U.S. Copyright Lew and International Treaties. Unauthorized reproduction or distribution of this AIA' 21 Document, or any portion at It, may result in severe 00 and criminal penalties, and will be prosecuted to the maximum extent possible under the law. t This document was produced by AIA software at 13:02:31 an 07113/2018 under Order No.9838311733 which expires on 09/191201 S. and Is not for resale. User Notes: (1328838723) Additions and Deletions Report for AIA® Document A133TM — 2009 This Additions and Deletions Report, as defined on page 1 of the associated document, reproduces below all text the author has added to the standard form AIA document in order to complete it, as well as any text the author may have added to or deleted from the original AIA text. Added text is shown underlined. Deleted text is indicated with a horizontal line through the original AIA text. Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any part of the associated AIA document. This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 13:02:31 on 07/13/2018. PAGE AGREEMENT made as of the 22nd day of March in the year 2018 City of Meridian 33 East Broadway Avenue Meridian, ID 83642 En@:ineered Structures, Inc 3330 East Louise Drive, Ste. 300 Meridian, ID 83642 Meridian Fire Station #6 Overland Road and Locust Grove Meridian, ID The "~Architects: (Name, legal status and address) Rice Fergus Miller 275 Fifth Street. Ste 100, Bremerton, WA 98337 Pivot North Architecture 1101 West Grove Street, Boise, ID83702 Charlie Butterfield City of Meridian 33 East Broadway Avenue Meridian, ID 83642 Telephone: 208-888-4433 Fax: 208-887-4813 PAGE 2 Joe Jackson, Vice President of Operations Engineered Structures, Inc. 3330 East Louise Drive, Ste. 300 Additions and Deletions Report for 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 documentwas produced by AIA software at 13:02:31 on 07/13/2018 under Order No.9838311733which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) Meridian, ID 83642 Telephone Number: 208-362-3040 Fax Number: 208-362-3113 Email Address: joejackson@esiconstruction.com David Fergus Rice Fergus Miller Gunner Gladics Pivot North Architecture PAGE 3 12 SCOPE OF THE AGREEMENT The Construction Manager accepts the relationship of trust and confidence established between it and the Owner by this Agreement and covenants with the Owner to cooperate with the Architect and exercise the Construction Manager's best 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; to use its best efforts to manage the Project in the best and most sound way; and to perform the Work in an expeditious and economical manner consistent with the Owner's interests. The Construction Manager acknowledges that it owes a contractual duty to the Owner for all of its construction management services in connection with the Project The Construction Manager covenants and represents that it has the professional expertise, manpower, and capacity to undertake successfully the services that it shall provide herein to satisfactorily manage and complete 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. For the Preconstruction Phase, AIA Document A201TM 2007, General Conditions of the Contract for Construction, as revised for this project, 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, as revised for this project, which document is incorporated herein by reference. The term "Contractor" as used in A201-2007 shall mean the Construction Manager. PAGE 4 4 2.1.2.1 In conjunction with the Architect and Owner, the Construction Manager will develop a formal comprehensive management and scope of Work plan The Owner will decide whether to make Proiect changes. $ 2.1.2.2 The Construction Manager will review the design and make suggestions to the Owner as to value engineering constluctability, suitability of materials and equipment scheduling, time, methods and sequence of construction clarity, consistency and coordination of documentation to reduce project construction cost to reduce operational costs or to improve the life of the building The Owner will decide whether to make Project changes. However, the Construction Manager is not a licensed design professional and assumes no responsibility for the design of the Project or the design of the improved manufacturing systems (such as trusses and fire protection systems). Except as otherwise set forth in this Contract any suggestions by the Construction Manager to modify the design of the Project to reduce costs will be based on Construction Manager's knowledge and experience as a construction contractor and Construction Manager, and not as a design professional. Additions and Deletions Report for AIA Document A1331m —2009 (formerly A121 TMCMc — 2003). Copyright 01991, 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 2 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 documentwas produced by AIA software at 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) § 2.1.2.3 The Construction Manager shall develop in coordination with Owner, a system for tracking project costs and cash flow. § 2.1.2.4 The Construction Manager shall attend and if requested by Owner, schedule and lead periodic project meetings and special meetings for the exchange of information concerning the project and review of design progress permits and approvals All meetings shall be held at a location and time convenient to the Owner's Designated Representative. § 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 issuance of a Project schedule shall be a representation and warranty to owner that Construction Manager has thoroughly and carefully examined the Project schedule and found it to be a reasonable and adequate amount of time for Construction Mana eg r to perform the Work and includes reasonable periods for the review of submittals, tests, inspections and other matters by Owner Architect and any governmental authorities. 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; components of the Work; times of commencement and completion required of each Subcontractor; ordering and delivery of products, including those that must be ordered well in advance of construction; and the occupancy requirements of the Owner. PAGE 5 § 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, detailed estimates of the Cost of the Work and value engineering analysis of increasing detail and refinement and allowing for the further development of the design until such time as the Owner and Construction 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 recommendations for corrective action. § 2.1.5.3 Owner may require additional cost estimates to confirm budget due to modification made via design workshops and the Construction Manager shall work with the Architect to reconcile any differences. The Construction Manager shall seek to develop bidders' interest in the Project. The Construction Manager shall develop the scope of work and prepare bid packages in concert with the Architect (Owner will provide a template for the bid packages) for each trade to be bid and participate in the prequalification and qualification of each of the Subcontractors and Sub -subcontractors as defined by law. 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. PAGE 6 § 2.2.8 The Owner shall authorize the Architect to provide the revisions to the Drawings and Specifications to incorporate the agreed upon -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. Additions and Deletions Report for AIA Document A133TM —2009 (formerly A121 TmCIVIc —2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIAO Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 3 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 13:02:31 on 07/13/2018.underOrder No.9838311733 which expires on 09/19/2018, and is not for resale. (1328836723) User Notes: § 2 210 The Construction Manager's submittal of the Guaranteed Maximum Price proposal for the Owner's review and acceptance shall constitute Construction Manager's representation and warranty to Owner that it has carefully and thoroughly examined the Contract Documents and found them to be reasonably coordinated complete and suitable for construction of the Work in the Contract Time and for the Guaranteed Maximum Price. PAGE 7 § 2.3.1.3 The Contract Time shall be measured from the date of Commencement. § 2.3.1.4 The Construction Manager shall achieve Substantial Completion of the entire Work no later than Twelve(l2) months from notice to proceed The construction schedule will be added by Amendment at such time when enough information is available to accurately project the construction schedule. § 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. The Owner may designate Y .f per -sons f.om whe entities from whie' the Construetion Managef shall obtain bids. Construction Manager may provide a self -performing bid for specific scope(s) of work. The Construction Manager shall obtain bids from Subcontractors and from suppliers of materials or equipment fabricated especially for the Work and shall deliver such bids to the Mehiteet. The ^ hall then determine, vvM the a&iee of the Construetion Manager- and the Ar-ehiteet, whieh bids will be . Architect and Owner. The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection. § 2.3.2.3 shall not be awarded on the basis of eost-plus a fee without the pfier eonsent of -the Ownef. If f -h -e S.-h-en-fitrMaet is - awarded on a eost plus fee basis, the Construetion Manager- shall provide in the Subeentfaet for- the Owner- to r-eeeive the safne audit rights with fegard to the Subeentraetof as the Owner- r-eeeives with fegafd io the Construetion Manage in Seetion 6.11 bolow.Deleted § 2.3.2.41f4he-The Construction Manager &may recommend a specific bidder that may be considered a "related party" according to Section 6. 10, then the Construetion Manager- ' ll premptly notify the Owner in writing o suehrelationship and roti .I he 0. ' cf so long as the Construction Manager notifies the Owner of such relationship and the specific nature of the contemplated transaction, according to Section 6.10.2. 2.3.2.7.1 The Construction Manager shall develop and implement a change order control system. 6 2.3.2.7.2 The Construction Manager shall establish and implement a Quality Control program including monitoring the quality programs of all Subcontractors. 2.3.2.7.3 The Construction Manager shall monitor closely the progress of construction of each subcontractor, prepare a construction schedule report at least monthly and if and as necessary prepare and submit recovery schedules. § 2.3.2.7.4 The Construction Manager shall furnish monthly reports concerning the progress of the work which address: (a compliance with the construction schedule (b) status of testing and inspection activities performed by the Construction Manager and Subcontractors (c) status of shop drawings and submittals (d) status of change orders, and (e) other matters relating to the progress of work as directed by Owner. § 2.3.2.9 The Construction Manager shall be available to meet with the Owner as shall be reasonably scheduled by the Owner's designated representative The Construction Manager shall attend and if requested by Owner, shall schedule and lead regular project and construction progress meetings and conduct regular meetings at the site with Additions and Deletions Report for AIA Document A133 TM -2009 (formerly A121 WCMc - 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 4 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 documentwas produced byAlAsoftware at 13:02:31 on 07113/2018 under Order No.9838311733which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) each Subcontractor. All meetings shall be held at a location and time convenient to the Owner's Designated Representative. § 2.3.2.10 The Construction Manager shall assume responsibility for project safety in accordance with OSHA requirements. $ 2.3.2.11 The Construction Manager will work with the Owner to coordinate scheduling, installation of furniture, fixtures and equipment to be installed by Owner. The Construction Manager will work with the Owner to schedule, stage and move Owner's personnel and operations into the building in an organized and systematic manner, so as to minimize ersonnel down-time. .42.3.2.12 The Construction Manager shall implement procedures for reviewing and processing requests for information or clarifications and interpretations of the Contract Documents; shop drawings samples and all other submittals contract schedule adjustments change order proposals proposals for substitutions payment applications, as built drawings and maintenance of logs using the internet-based project management software. PAGE 8 § 3.1.2 Prior to the exeoution of the Guaranteed Mffldmum Priee Amendment, die Gonstfuetion Managepinay-request in wfifing that the Owner prolvide feasenable evidenee giat the Ownef has made finatneial atTangements to fulfill the Ownef's obligations undef the Gentrae4. Thereafter-, the Cefistruetion Manager may only r-equest sueh evidenee if (1) the Owner- fails to make payments to the Genstfue4ien Manager as the Centraet Deetiments require, (2) a ehange ill the Weik materially ehanges the Gentraet Sum, or- (3) the Ganstfuetion Manager- identifies in writing a reasonable eeneern regarding the Owner's ability to make payment when due. The Owner shall fiiFnish sueh evidenee as a eandition Aftef the Owner fumishes the evidenee, the Owner shall not matefially vary stieh finaneial affangements without Pfior- . the Genstmetion Menagef and A ehiteet-.�Deleted § 3.1.4 Structural and Environmental Tests, Surveys and Reports. During.Upon the reasonable request of the Construction Manager during the Preconstruction Phase, the Owner shall furnish the following information or services with reasonable premptness—.promptness and at the Owner's expense. 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. 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. PAGE 9 The Owner shall retain an Architect to provide services, duties and responsibilities as described in AIA Document B 133TM 2014, Standard Form of Agreement Between Owner and Architect, Edition -as modified for this Project. The Owner shall provide the Construction Manager a copy of the executed agreement between the Owner and the Architect, and any further modifications to the agreement. Lump sum value of TweM-Five Thousand and no/100 Dollars ($25,000.00) This lump sum value represents 50% of the total estimated preconstruction cost on the understanding that both the Meridian & Caldwell Fire Stations roceed through the Preconstruction Phase Schedule as identified in 4.1.3. If both stations do not move forward in conjunction with each other the preconstruction phase fee will be equitably adjusted per 4.1.4 to address increased roportional costs of Owner for Preconstruction services performed on a faster track than the Caldwell Fire Station. § 4.1.3 If the Preconstruction Phase services covered by this Agreement have not been completed within eight (8 ) 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. Owner and Construction Manager agree to the following schedule: Additions and Deletions Report for AIA Document A133TM —2009 (formerly A121 TMCMc —2003). Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIAm Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 5 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 underthe law. This documentwas produced by AIA software at 13:02:31 on 07/13/2018 under OrderNo.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) 100% SDs — 7/6/18 100%DDs — 8/20/18 50% CDs —10/31/18 100% CDs —1/4/19 Project Out to Bid —1/7119 Bid Opening —1/29/19 Construction Start — 3/4/19 Proiect COmDletion — 2/28/20 PAGE 10 § 4.2.2 Payments are due and payable upon- presentatie>rNet 30 dates of Ci 's receipt of the Construction Manager's invoice. Amounts unpaid Th�(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. (Insei4 rate of fnenthly or- apHaal interest agreed upon.) %—NA Four and Three -Quarters Percent (4.75%) Four and Three -Quarters Percent (4.75%) Ten Percent (10%) Overhead on direct cost of work and Five Percent (5%) Fee on direct cost of work. § 5.1.4 Rental rates for Construction Manager -owned equipment shall not exceed seventy-fivepercent (75 e/a) of the standard rate paid at the place of the Project. § 5.1.5 Unit prices, if any: N/A PAGE 11 mm Units and Limitato Price per Unit ($0.90) The savings shall be the difference as of the date of Final Completion of the Work between (1) the sum of the Cost of Work and the Contractor's Fee and (2) the Guaranteed Maximum Price. All savings shall be to the benefit of the Owner. 4 5.2.2.1 The Estimated Cost of the Work shall include the CM/GC's contingency, a sum established the CM/GC for the G/CM's exclusive use to cover additional development of Plans and Specifications and unforeseen costs which are properly reimbursable as Cost of the Work but which are not the basis for a Change Order. The CM/GC's Contingency is assigned for use by the CM/GC to pay for project issues that are with in control such as subcontractor coordination insufficient coordination of the design drawings unforeseeable general conditions expenses, buy-out error, and scope gaps It may also be used for some issues beyond the CM/GC's control such as lost time, increases in bid contracts subcontractor failure and expediting costs for critical materials. CM/GC's contingency is not available for Owner directed design or scope changes and unforeseen or differing site conditions. CM/GC Contingency costs will be reviewed monthly by the Owner for conformance with the contract. Damaged, non -conforming or Additions and Deletions Report for 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 6 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) out -of -sequence work does not constitute a change order, is not an addition to the cost of work and may not be paid for out of CM/GC Contingency. Under no circumstances will any project funds be used for acts of negligence or violations of statutes. PAGE 12 § 6.1.1.1 Costs as defined herein shall be actual costs paid by the Construction Manager, less all discounts, rebates, and salvages that shall be taken by the Construction Manager, subject to Article 6.9 of this Agreement. All payments made by the Owner ursuant to this Article 6 whether those payments are actually made before or after the execution of the Contract are included within the Guaranteed Maximum Price specified in Paragraph 5.2 above, provided, however, that in no event shall the Owner be required to reimburse the Construction Manager for any portion of the Cost of the Work incurred prior to the Commencement Date unless the Construction Manager has received the Owner's written consent prior to incurring such cost. $ 6.1.1.2 Notwithstanding the breakdown or categorization of any costs to be reimbursed in this Article 6 or elsewhere in the Contract Documents there shall be no duplication of payment in the event any particular item for which payment is requested can be characterized as falling into more than one of the Types of compensable or reimbursable categories. § 6.2.1 Wages of construction workers directly employed by the Construction Manager to perform the construction of the Work at the site or, with the Owner's prior approval, at off-site wer4s h9pp -. ocations. § 6.2.2 Wages or salaries of the Construction Manager's supervisory and administrative personnel when stationed at the site with the Owner's prior- appr-oval. (if it is intended that the wages or- salaries of eet4ain personnel stationed at the Censtfaaion Manager's pr-ineipal or other 6ffiees shall be ineluded in the Go of the Work, identib, in Seetion 11. 5, the personnel to be inelude dd, whetite-r for all of only paA of theif time, and the rates at whieh their- time will be ehafged to the Wofk.) assigned to the Project and/or who perform tasks specifically related to the Project. Project Manager hourly rate - $69.00 Estimator hourly rate - $70.00 Assistant Project Manager hourly rate - $53.00 Project Coordinator hourly rate $32.00 Project Engineer hourly rate - $58.00 Superintendent hourly rate - $88.00 PAGE 13 § 6.6.1 Premiums for that portion of insurance and bonds required by the Contract Documents that can be directly attributed to this Contract. Reimbursable costs associated with Subcontractor -provided bonds are subject to the limitations set forth in Article 11 of AIA Document A201-2007. Self-insurance for either full or partial amounts of the coverages required by the Contract Documents, with the Owner's prior approval. Insurance coverages provided by Construction Manager and outlined in Section 8 of this Agreement shall be charged at the rate of 838% calculated on the direct cost of work. Builders Risk insurance is not included, however if Owner elects Construction Manager to provide Builders Risk insurance Construction Manager to provide alternate pricing for this cost. PAGE 14 tanda. - written personnel peliey for- r-eloeation and temporary living allowances of the Constfuetien Manager -'s per-sennel required fef the Work. Additions and Deletions Report for AIA DocumentA133TM' —2009 (formerly A121TICMc-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 7 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 documentwas produced by AIA software at 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) § 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, Subcontractors, suppliers, or etkers.others• provided that any absence of collectible insurance is not due to the Construction Manager's breach of any contract for insurance. PAGE 15 § 6.9.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the Owner if (1) before making the payment, the Construction Manager included them in an Application for Payment and 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 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. The Construction Manager shall not obtain for its own benefit any discounts rebates or refunds in connection with the Work prior to providing the Owner with at least seven days' prior notice of the same and the opportunity to furnish such funds to obtain such discount, rebate or refund on behalf of the Owner. The Construction Manager shall keep full and detailed records and accounts related to the cost of the Work and exercise such controls as are consistent witheg nerally accepted accounting principles consistently pplied and as may be necessary for proper financial management under this Contract and to substantiate all costs 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. § 7.1.1 Based upon Applications for Payment including reasonable supporting documentation 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. § 7.1.3 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 last day of the following month. If an Application for Payment is received by the Architect after the application date fixed above, payment shall be made by the Owner as soon as the necessary pprovals can reasonably be attained but not later than Thi( 30 days after the "rah iteeOwner receives the Application for Payment. PAGE 16 § 7.1.4 With each Application for Payment, the Construction Manager shall submit payrolls, petty eash aeeetints, Subcontractor's Application for Payment cover sheet and any other evidence required or requested 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. Additions and Deletions Report for AIA Document A133TM — 2009 (formerly A121TMCMc-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 8 reproduction or distribution of this AIA° Document, or any portion of It, may result In severe civll and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) Add the Construction Manager's Fee, less retainage of five percent ( 5_0 %). 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 beats 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; Subtract retainage of fivepercent (5_0 o) from that portion of the Work that the Construction Manager self -performs; Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Section 9.5 of AIA Document244_20 �A201-2007 as modified for this Project, and any other amounts proper) by eld by the Owner at the time of each progress payment. § 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. Five percent (5%) retainage shall be withheld on all Subcontractors. PAGE 17 Upon substantial completion of the work the owner shall pay the Construction Manager the unpaid balance of the Contract Sum less one-hundred-fifthpercent (150%) of the cost of completing any unfinished items as agreed to between the Owner and Construction Manager as to extent and time for completion The Owner thereafter shall pay the Construction Manager monthly the amount retained for unfinished items as each item is completed PAGE 18 Workers' Compensation As mandated by state and federal law. Employers' Liability $1,000,000.00 Commercial General Liabilitv $1,000,000.00 Each Occurrence (incl. Premises -Operations. Independent Contractors' Protective, Products -Completed Operations Contractual Liability, Personal Injury and Broad Form Property DamaN(incl. coverage for Explosion Collapse and Underground hazards)) General Aggregate $2,000,000.00 (w/$10,000,000.00 Umbrella) Personal and Advertising Iniury $1,000,000.00 Products -Completed Operations Aggregate $2,000,000.00 Automobile Liability $1,000,000.00 Each Accident (Combined Single Limit) (incl. owned non -owned and hired vehicles) for bodily injury and property damage) $ 81 The Owner shall be an additional insured under Construction Manager's Commercial General Liability policy. & 8.2 INSURANCE REQUIRED OF THE OWNER During both phases of the Protect the Owner shall purchase and maintain liability and property insurance Such insurance shall be written for not less than the following limits or greater if required by law: Type of Insurance or Bond Limit of Liability or Bond Amount ($0.00) Property Insurance (Builders, All Risk) Deductible Per Occurrence (Owner Responsibility) Aggregate Deductible (Owner Responsibility) Boiler and Machinery Insurance (If not a blanket policy, list the objects to be insured.) Additions and Deletions Report for AIA Document A13371 — 2009 (formerly A121 TMCMe — 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 9 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 0 911 91201 8, and is not for resale. User Notes: (1328836723) § 9.2 The parties shall endeavor to resolve their disputes by mediation which unless the parties mutually agree otherwise shall be administered by the parties A request for mediation shall be made in writing and delivered to the other party to the Contract The request may be made concurrently with the filing of litigation, but in the event litigation is filed the mediation shall proceed in advance of litigation which shall be stayed pending mediation. Written agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. For any Claim subject to, but not resolved by mediation pursuant to seetion 15.3 of-AIA Doeument A201 2007, mediation, the method of binding dispute resolution shall be as follows: [ X1 Litigation in a court of competent jurisdieti f} &risdiction Any Mediation or trial arising out of or relating to the Contract shall be commenced and conducted in Ada County, Idaho. PAGE 20 The Work may be suspended by the Owner as provided in Article 14 of AIA Document 201 2007. 201-2007, as modified for this Project. In such case, the Guaranteed Maximum Price and Contract Time shall be increased as provided in Section 14.3.2 of AIA Document A201 2007, as modified for this Project, except that the term "profit" shall be understood to mean the Construction Manager's Fee as described in Sections 5.1 and 5.3.5 of this Agreement. § 11.1 Terms in this Agreement shall have the same meaning as those in 201—o07.A201-2007, as modified for this Project. Section 13.1 of A201400 A201-2007 as modified for this Project, shall apply to both the Preconstruction and Construction Phases. 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, as modified for this Project, neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. $11 51 Owner shall have the right to directly communicate with any person or entity related to the Project about any matter, whether or not such matter is related to the Project -,provided however, binding communications under this Agreement shall only be made through the proper protocols set forth in this Agreement Owner shall not interfere with the Construction Manager's coordination of its Subcontractors and Suppliers Construction Manager shall not prohibit limit or condition any employee or subcontractor of any tier, or any other person from separately communicating with Owner for any matter or purpose whether or not such matter is related to the Project, except where Owner has interfered with Construction Manager's coordination and management of its Subcontractors or Suppliers Additions and Deletions Report for AIA DocumentA133T' —2009 (formerly A121wCMc —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 10 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 13:02:31 on 07/13/2018 under Order No.983831 1733which expires on 09/19/2018, and is not for resale. User Notes: (1328836723) $11.5.2 In the event of any controversy, claim or action being filed or instituted between the parties to intemret or enforce the terms of this Agreement or arising from the breach of any provision hereof (whether sounding in tort contract or otherwise) the prevailing party shall be entitled to receive from the other party reasonable attorneys' fees, court costs expert witness fees and other costs and expenses of such action in any ppeal there from. PAGE 21 .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 PfieePrice, as modified for this Project. .2 AIA Document A201-2007, General Conditions of the Contract for Go. etienConstruction, as modified for this Project. .3 AIA Document B201TM 2007Digital Dat., n,.,.+, el Bxhiw:.:f, pletea or- the c tt A133 — 2009 Exhibit A Guaranteed Maximum Price Amendment to be executed at a later date after the project has been bid out. .6 Other documents: Joe Jackson, Vice President Additions and Deletions Report for AIA Document A133TM —2009 (formerly A121 TmCIVIc — 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 11 rep roductlon 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 13:02:31 on 07/13/2018 under OrderNo.9838311733 which expires on 09/19/2018. and is not for resale. User Notes: (1328836723) Certification of Document's Authenticity AIA° Document D401 TM —2003 I, , hereby certify, to the best of my knowledge, information and belief, that I created the attached final document simultaneously with its associated Additions and Deletions Report and this certification at 13:02:31 on 07/13/2018 under Order No. 9838311733 from AIA Contract Documents software and that in preparing the attached final document I made no changes to the original text of AIA® 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, as published by the AIA in its software, other than those additions and deletions shown in the associated Additions and Deletions Report. (Signed) (Title) (Dated) AIA Document D401T' —2003. Copyright© 1992 and 2003 by The American Institute of Architects. All rights reserved. WARNING: This AIAO 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 13:02:31 on 07/13/2018 under Order No.9838311733 which expires on 09/19/2018, and is not for resale. User Notes: (1328836723)