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HomeMy WebLinkAboutStandard Form of Agreement with Kreizenbeck, LLC dba Krieizenbeck Constructors for Completion and Repairs Existing City HallR ~~ TM -j- Document C132 - 2009 Standard Form of Agreement Between Owner and Construction Manager as Adviser AGREEMENT made as of the 21 day of April in the year 2011 (In words, indicate day, month and year.) ADDITIONS AND DELETIONS: BETWEEN the Owner; The author of this document has (Name, legal status, address and other information) added information needed for its completion. The author may also have revised the text of the original City of Meridian AIA standard form. An Additions and 33 East Broadway Avenue Deletions Report that notes added Meridian, Idaho 83642 information as well as revisions to the standard form text is available from the author and should be reviewed. A vertical line in the left and the Construction Manager: margin of this document indicates (Name, legal status, address and other information) where the author has added necessary information and where Kreizenbeck, LLC dba Kreizenbeck Constructors the author has added to or deleted 251 East Front Street from the original AIA text. Suite 110 This document has important legal Boise, Idaho 83702 consequences. Consultation with an attorney is encouraged with respect to its completion or modification. .for the following Project: This document is intended to be (Name, location and detailed description) used in conjunction with AIA T"" Documents A132 -2009, Standard Meridian City Hall Form of Agreement Between Owner and Contractor, Construction 33 East Broadway Avenue Manager as Adviser Edition; Meridian, Idaho 83642. A232T""-2009, General Conditions Completion and Repairs at Existing City Hall Facility of the Contract for Construction, Construction Manager as Adviser The Architect: Edition; and B132T"'-2009, Standard (Name, legal status, address and other information) Form of Agreement Between Owner and Architect, Construction Manager ZGA Architects & Planners as Adviser Edition. 565 West Myrtle Street AIA Document A232T"'-2009 is Suite 225 adopted in this document by Boise, Idaho 83702-760b reference. Do not use with other Telephone Number: (208) 345-8872 general conditions unless this Fax Number: (208) 343-7162 document is modified. The Owner and Construction Manager agree as follows. AIA Document C132TM - 2009 formerly 8801 TM'CMa -1992). Copyright ©1973,1980,1992 and 2009 by The American Institute of Architects. All rights Init. reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible ~ ~ under the law. This document was produced by AIA software at 14:04:08 on 04/26/2011 under Order No.1674032595 1 which expires on 0111712012, and is not for resale. - User Notes: (1383286886) TABLE OFARTICLES 1 INITIAL INFORMATION 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES 3 SCOPE OF CONSTRUCTION MANAGER'S BASIC SERVICES 4 ADDITIONAL .SERVICES 5 OWNER'S RESPONSIBILITIES 6 COST OF THEWORK 7 COPYRIGHTS AND LICENSES 8 CLAIMSAND DISPUTES 9 TERMINATION OR SUSPENSION 10 MISCELLANEOUS PROVISIONS 11 COMPENSATION 12 SPECIAL TERMS AND CONDITIONS 13 SCOPE OF THE AGREEMENT ARTICLE 1 INITIAL INFORMATION § 1.1 This Agreement is based on the Initial Information set forth in this Section 1.1. (Note the disposition for the following items by inserting the requested information or a statement such as "not applicable, " "unknown at time of execution" or "to be determined later by mutual agreement.') § 1,1,1 The Owner's program for the Project: (Identify documentation or state the manner in which the program will be developed.) Complete the remaining work and repairs at the existing City Hall Facility as requested and approved by the Ci . tY § 1.1.2 The Project's physical characteristics: (Identify or describe, if appropriate, size, location, dimensions, or other pertinent information, such as geotechnical reports; site, boundary and topographic surveys; tragic and utility studies; availability of public and private utilities and services; legal description of the site; etc.) Project boundaries are within the existing Meridian City Hall cam us. P § 1.1.3 The Owner's budget for the Cost of the Work, as defined in Section 6. l: (~'rovide total and, if known, a line item breakdown.) Not defined at the time of execution. § 1.1.4 The Owner's anticipated design and construction schedule: .1 Design phase milestone dates, if any: Unknown at the time of execution. .2 Commencement of construction: AIA Document C132TM - 2009 formerly 8801 TMCMa -1992). Copyright ©1973,1980,1992 and 2009 by The American Institute of Architects. All rights Init. reserved. WARNING: This AIA Document is rotected b U.S. Co ri ht Law and Internation I Tr ' p Y py g a eaties. Unauthorized reproduction or distr~butian of Z this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible ~ under the law. This document was produced by AIA software at 14:04:08 on 04!26!2011 under Order No.1674032595 1 which expires on 01117/2012, and is not for resale. - User Notes: (1383286886) • ~ Unknown at the time of execution. .3 Substantial Completion date or milestone dates: Unknown at the time of execution. .4 Other; § 1.1.5 The Owner intends the following procurement method for the Project: J (identify method such as competitive bid, negotiated Contract or multiple Prime Contracts.) Competitive Bid -Multiple Prime Contracts § 1.1.6 The Owner's requirements for accelerated or fast-track schedulin multi le bid acka es g, p p g , or phased construction are set forth below: (List number and type of bid/procurementpackages.J Unknown at the time of execution. § 1.1.7 Other Project information: (Identify special characteristics or needs of the Project not provided elsewhere, such as erNironmentallyresponsib1e design or historic preservation requirements.) § 1.1.8 The Owner identifies the following representative in accordance with Section 5.5: (List name, address and other information.) Keith Watts, Purchasing Manager City of Meridian 33 East Broadway Avenue Meridian, Idaho 83642 OR Ted Baird, Deputy City Attorney City of Meridian 33 East Broadway Avenue Meridian, Idaho 83642 § 1.1.9 The persons or entities, in addition to the Owner's representative, who are re uired to review the q Construction Manager's submittals to the Owner are as follows: (List name, address and other information.) None § 1.1.10 Unless provided by the Construction Manager or Architect, the Owner will retain the following consultants and contractors: (List name, legal status, address and other information.) .1 Land Surveyor: *As Necessary .2 Geotechnical Engineer: *As Necessary Init. AIA Document C132T"" - 2009 formerly 8801 T"'CMa -1992). Copyright ©1973,1980,1992 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 3 this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible ~ under the law. This document was produced by AIA software at 14:04:08 on 04126!2011 under Order No.1674032595 1 which expires on 01117/2012, and is not far resale. - User Notes: (1383286886) .3 Civil Engineer: BAs Necessary 4 Other: List any other consultants retained by the Owner, such as a Project or Program Manager, or ( construction contractor.) BAs Necessary ~ e to re uire it's consultants to coordinate all work efforts through the Architect. The The Owner agre s q Architect shall be responsible to incorporate all of the Owner's consultants work efforts into a complete set of construction documents to be used for permitting, bidding and construction purposes. Construction Mana er identifies the following representative in accordance with Section 2.4: § 1.1.11 The g (List name, address and other information.) Michael J. Berard, President Kreizenbeck, LLC dba Kreizenbeck Constructors 251 East Front Street, Suite 110 Boise, Idaho 83702 1.1,12 The Construction Mana er's staffing plan as required under Section 3.3.2 shall include: § g (List any specific requirements .and personnel to be included in the staffing plan, if known.) I As determined by the Construction Manager. § 1.1.13 The Construction Manager's consultants retained under Basic Services, if any: .1 Cost Estimator: (List name, legal status, address and other information.) I None .2 Other consultants: None § 1.1.14 The Construction Manager's consultants retained under Additional Services: As determined by the Construction Manager. § 1'.1.15 Other Initial Information on which the Agreement is based: This is a professional services contract where the Construction Manager is an advisory agent to the Owner. All architecture, engineering and design will be completed by others and is specifically not included as part of this contract. AlI of the construction work, other than the general conditions, will be completed under a typical CM(a) and multiple prime contract procurement method. All prime contractors will be contracted directly with the Owner. The City is hiring Kreizenbeck Constructors to assist them in repairing or completing the Work at the existing Meridian City Hall Facility. The City recognizes that the existing work was completed under the design and supervision of others and understands that the Kreizenbeck Constructors is not responsible for anylall existing conditions, completed work, or uncompleted work at the existing City Hall Facility under any condition. All parties (Kreizenbeck Constructors, ZGA, and the City) agree to work together to identify the corrective action for repairs andlor completion of the work through the entire project. Many items will include investigation and discovery during all phases of the design and construction process and that unforeseen items will certainly be encountered. AIA Document C132T"' - 2009 formerly 8801 TMCMa -1992). Copyright ©1973,1980,1992 and 2009 by The American Institute of Architects. All rights Init. reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 4 this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible ~ under the law. This document was produced by AIA software at 14:04:08 on 0412612011 under Order No.1674032595 1 which expires on 0111712012, and is not for resale. User Notes: (1383286886) d Construction Mana er may rely on the Initial Information. Both parties, however, recognize § 1.2 The Owner an g ' rmation ma material) change and, in that event, the Owner and the Construction Manager shall that such mfo y y ro riatel ad'ust the schedules, the Construction Manager's services and the Construction Manager's app p Y J compensation. ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES § 2.1 The Construction Manager shall provide the services as set forth in this Agreement. 2.2 The Construction Mana er shall perform its services consistent with the skill and care ordinarily provided by § g construction mana ers racticing in the same or similar locality under the same or similar circumstances. The g p Construction Mana er shall perform its services as expeditiously as is consistent with such skill and care and the g orderly progress-of the Project. Z.3 The Construction Manager shall provide its services in conjunction with the services of an Architect as § TM_ rm of A reement Between Owner and Architect, described ~n AIA Document B132 2009, Standard Fo g Construction Manager as Adviser Edition. The Construction Manager shall not be responsible for actions taken by the Architect. 2.4 The Construction Manager shall identify a representative authorized to act on behalf of the Construction Manager with respect to the Project. xce t with the Owner's knowled a and consent, the Construction Manager shall not engage in any activity, or 2.5E p g accept any employment, interest or contribution that would reasonably appear to compromise the Construction Manager's judgment with respect to this Project. e Construction Mana er shall maintain the following insurance for the duration of this Agreement. If any of § 2.6 Th g there uirements set forth below exceed the types and limits the Construction Manager normally maintains, the q Owner shall reimburse the Construction Manager for any additional cost. 2.6.1 Comprehensive General Liability with policy limits of not less than One Million Dollars and Zero Cents ($ 1,000,000.00) for each occurrence and in the aggregate for bodily injury and property damage. § 2.6.2 Automobile Liability covering owned and rented vehicles operated by the Construction Manager with policy limits of not less than One Million Dollars and Zero Cents ($1,000,000.00) combined single limit and aggregate for bodily injury and property damage, 2.6.3 The Construction Manager mayuse umbrella or excess liability insurance to achieve the required coverage for Comprehensive General Liability and Automobile Liability, provided that such umbrella or excess insurance results in the same type of coverage as required for the individual policies. § 2.6,4 Workers' Compensation at statutory limits and Employers Liability with a policy limit of not less than Five Hundred Thousand Dollars and Zero Cents ($ 500,000.00 ). 2.6.5 Professional Liability covering the Construction Manager's negligent acts, errors and omissions in its .. performance of services with policy limits of not less than One Million Dollars and Zero Cents ($1,000,000.00) per claim and in the aggregate. The Owner shall be responsible for any deductible. 2.6.6 The Construction Mana er shall rovide to the Owner certificates of insurance evidencing compliance with § g p the requirements in this Section 2.6. The certificates will show the Owner as an additional insured on the Com rehensive General Liability, Automobile Liability, umbrella or excess policies. p ARTICLE 3 SCOPE OF CONSTRUCTION MANAGER'S BASIC SERVICES § 3.1 Definition The Construction Manager's Basic Services consist of those described in Sections 3.2 and 3.3 and include usual and customary construction coordination and scheduling, constructabilityrcview, cost estimating, and allocation of construction activities among the Multiple Prime Contractors. AIA Document C132TM - 2009 formerly 8801 T'"CMa -1992). Copyright ©1973,1980,1992 and 2009 by The American Institute of Architects. All rights Inst. reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 5 this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible ~ under the law. This document was produced by AIA software at 14:04:08 on 04126/2011 under Order No.1674032595_1 which expires on 0111712012, and is not for resale. (1383286886) User Notes: § 3.2 Preconstruction Phase onstruction Mana er shall review the program furnished by the Owner and any evaluation of the § 3.2.1 The C g ~ rtain there uirements of the Project and shall arrive at a mutual Owner s program provided by the Architect, to asce q understanding of such requirements with the Owner and Architect. ion Mana er shall rovide a preliminary evaluation of the Owner's program, schedule and § 3.2.2 The Construct g p construction budget requirements, each in terms of the other. . The Construction Mana er shall prepare, and deliver to the Owner, a written Construction Management Plan § 3.2 3 g that includes at a minimum, the following: (1) preliminary evaluations required in Section 3.2.2, (2) a Project schedule 3 cost estimates, (4) recommendations for Project delivery method, and (5) Contractors scopes of Wor , ~O if multi le Contractors or fast-track construction will be used. The Construction Manager shall periodically update p the Construction Management Plan over the course of the Project. sed on reliminar desi n and other design criteria prepared by the Architect, the Construction Manager §3.2.4Ba p y g shall re are reliminary estimates of the Cost of the Work or the cost of program requirements using area, volume p p p or similar conceptual estimating techniques for the Architect's review and Owner's approval. If the Architect su ests alternative materials and systems, the Construction Manager shall provide cost evaluations of those gg alternative materials and systems and may also provide its own suggestions. truction Mana er shall ex editiousl review design documents during their development and advise § 3.2.5 The Cons g p Y the Owner and Architect on proposed site use and improvements, selection of materials, and building systems and equipment. The Construction Manager shall also provide recommendations tothe Owner and Architect on constructabili availability of materials and labor, sequencing for phased construction, time requirements for ~'~ rocurement, installation and construction, and factors related to construction cost including, but not limited to, costs p of alternative designs or materials, preliminary budgets, and possible cost reductions. § 3.2.6 The Construction Manager shall prepare and periodically update the Project schedule included in the Construction Management Plan for the Architect's review and the Owner's acceptance. The Construction Manager shall obtain the Architect's approval for the portion of the Project schedule relating to the performance of the Architect's services. The Project schedule shall coordinate and integrate the Construction Manager's services, the Architect's services, other Owner consultants' services, and the Owner's responsibilities and highlight items that could affect the Project's timely completion. § 3.2.1 3.2.8 As the Architect ro resses with the preparation of the Schematic Design, Design Development and § pg Construction Documents, the Construction Manager shall consult with the Owner and Architect and make recommendations whenever the Construction Manager determines that design details adversely affect constructability, cost or schedules. 3.2.9 The Construction Mana er shall provide recommendations and information to the Owner and Architect § g regarding the assignment of responsibilities for temporary Project facilities and equipment, materials and services for common use of the Contractors. The Construction Manager shall verify that such requirements and assignment of responsibilities are included in the proposed Contract Documents. 3.2.10 The Construction Manager shall provide recommendations and information to the Owner regarding the allocation of responsibilities for safety programs among the Contractors. 3.2.11 The Construction Mana er shall provide recommendations tothe Owner on the division of the Project into § g individual Contracts for the construction of various categories of Work, including the method to be used for selectin Contractors and awarding Contracts. If multiple Contracts are to be awarded, the Construction Manager g shall review the Drawings and Specifications and make recommendations asrequired toprovidethat (1) the Work of the Contractors is coordinated, (2) all requirements for the Project are assigned to the appropriate Contract, (3) the likelihood of jurisdictional disputes is minimized, and (4) proper coordination is provided for phased construction. AIA Document C132T"" - 2009 formerly 8801 T""CMa -1992). Copyright ©1973,1980,1992 and 2009 by The American Institute of Architects. All rights Init. reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of s this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible ~ under the law. This document was produced by AIA software at 14:04;08 on 04/2612011 under Order No.1674032595_1 which expires on 01!1712012, and is not for resale. (1383286886) User Notes: .2.12 The Construction Mana er shall update the Project schedule to include the components of the Work, §3 g ' cludin hasin of construction, times of commencement and completion required of each Contractor, ordering m gp g and delivery of products, and the occupancy requirements of the Owner. 3.2,13 The Construction Manager shall expedite and coordinate the ordering and delivery of materials. ~§ 3.2.14 The Construction Manager shall assist the Owner in selecting, retaining and coordinating the professional services of surveyors, special consultants and testing laboratories required for the Project. 3.2.15 The Construction Manager shall provide an analysis of the types and quantities of labor required for the Project and review the availability of appropriate categories of labor required for critical phases. The Construction J Manager shall make recommendations for actions designed to minimize adverse effects of labor shortages. § 3.2.16 win the Owner's a royal of the Drawings and Specifications, the Construction Manager shall update § 3.2.11 Folio g pp and submit the latest estimate of the Cost of the Work and the Project schedule for the Architect's review and the Owner's approval. ~ § 3.218 3.2.1.9 The Construction Mana er shall develop bidders' interest in the Project and establish bidding schedules. The § g Construction Manager, with the assistance of the Architect, shall issue bidding documents to bidders and conduct pre-bid conferences with prospective bidders. The Construction Manager shall issue the current Project schedule with each set of bidding documents. The Construction Manager shall assist the Architect with regard to questions from bidders and with the issuance of addenda. 3.2.20 The Construction Manager shall receive bids, prepare bid analyses and make recommendations tothe Owner for the Owner's award of Contracts or rejection of bids. § 3.2.21 The Construction Manager shall assist the Owner in preparing Construction Contracts and advise the Owner on the acceptability of Subcontractors and material suppliers proposed by Multiple Prime Contractors. § 3.2.22 The Construction Manager shall assist the Owner in obtaining building permits and special permits for permanent improvements, except for permits required to be obtained directly by the various Multiple Prime Contractors. The Construction Manager shall verify that the Owner has paid applicable fees and assessments. The Construction Manager shall assist the Owner and Architect in connection with the Owner's responsibility for filing documents required for the approvals of governmental authorities having jurisdiction over the Project. § 3.3 Construction Phase Administration of the Construction Contract § 3.3,1 Subject to Section 4.3, the Construction Manager's responsibility to provide Construction Phase Services commences with the award of the initial Contract for Construction and terminates on the date the Architect issues the final Certificate for Payment. 3.3.2 The Construction Manager shall provide a staffing plan to include one or more representatives who shall be § in attendance at the Project site whenever the Work is being performed. § 3.3.3 The Construction Manager shall provide on-site administration of the Contracts for Construction in cooperation with the Architect as set forth below and in AIA Document A232T~2009, General Conditions of the Contract for Construction, Construction Manager as Adviser Edition. If the Owner and Contractor modify AIA Document A232-2009, those modifications shall not affect the Construction Manager's services under this Agreement unless the Owner and the Construction Manager amend this Agreement. 3.3.4 The Construction Manager shall provide administrative, management and related services to coordinate scheduled activities and responsibilities of the Multiple Prime Contractors with each other and with those of the Construction Manager, the Owner and the Architect. The Construction Manager shall coordinate the activities of the Multiple Prime Contractors in accordance with the latest approved Project schedule and the Contract Documents. AIA Document C132T"" - 2009 formerly 8801 T""CMa -1992). Copyright ©1973,1980,1992 and 2009 by The American Institute of Architects. All rights Inst. reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 7 this AIA' Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible ~ under the law. This document was produced by AIA software at 14:04:08 on 04/2612011 under Order No.1674032595_1 which expires on 0111712012, and is not for resale. User Notes: (1383286886) tilizin the construction schedules provided by the Multiple Prime Contractors, the Construction Manager § 3.3.5 U g u date the Project schedule, incorporating the activities of the Owner, Architect, and Multiple Prime shall p ~ ntractors on the Project, including activity sequences and durations, allocation of labor and materials, processing Co J awin s Product Data and Samples, and delivery and procurement of products, including those that must of Shop Dr g , ed well in advance of construction. The Project schedule shall include the Owner's occupancy requirements be order rtions of the Project havin occupancy priority. The Construction Manager shall update and reissue the showing po ~ g chedule as re uired to show current conditions. If an update indicates that the previously approved Project Project s q le ma not be met the Construction Manager shall recommend corrective action, if any, to the Owner and schedu y Architect. .3.3,6 The Construction Manager shall schedule and conduct meetings to discuss such matters as procedures, ro ess coordination, and scheduling of the Work. The Construction Manager shall prepare and promptly P ~' distribute minutes to the Owner, Architect and Multiple Prime Contractors. ' ' ' tion from the Multi le Prime Contractors, the Construction Manager shall schedule and § 3.3.7 Utihzmg mforma p , coordinate the sequence of construction and assignment of space in areas where the Multiple Prime Contractors are erforming Work, in accordance with the Contract Documents and the latest approved Project schedule. p § 3.3.8 The Construction Manager shall schedule all tests and inspections required by the Contract Documents or overnmental authorities, and arrange for the delivery of test and inspection reports to the Owner and Architect. g Construction Mana er shall endeavor to obtain satisfactory performance from each of the Multiple Prime § 3.3.9 The g Contractors. The Construction Manager shall recommend courses of action to the Owner when requirements of a Contract are not being fulfilled. 3.3,10 The Construction Manager shall monitor and evaluate actual costs for activities in progress and estimates for uncompleted tasks and advise the Owner and Architect as to variances between actual and budgeted or estimated costs. If the Contractor is required to submit a Control Estimate, the Construction Manager shall meet with the Owner and Contractor to review the Control Estimate. The Construction Manager shall promptly notify the Contractor if there are any inconsistencies or inaccuracies in the information presented. The Construction Manager shall also report the Contractor's cost control information to the Owner. § 3.3.11 The Construction Manager shall develop cash flow reports and forecasts for the Project. .3.12 The Construction Mana er shall maintain accounting records on authorized Work performed under unit §3 g costs, additional Work performed on the basis of actual costs of labor and materials, and other Work requiring accounting records. . ,12.1 The Construction Mana er shall develop and implement procedures for the review and processing of §33 g A plications for Payment by Multiple Prime Contractors for progress and final payments. p 3.3.1.2,2 Not more frequently than monthly, the Construction Manager shall review and certify the amounts due the respective Contractors as follows: .1 Where there is only one Contractor responsible for performing the Work, the Construction Manager shall, within seven days after the Construction Manager receives the Contractor's Application for Payment, review the Application, certify the amount the Construction Manager determines is due the Contractor, and forward the Contractor's Application and Certificate for Payment to the Architect. .2 Where there are Multiple Prime Contractors responsible for performing different portions of the Project, the Construction Manager shall, within seven days after the Construction Manager receives each Contractor's Application for Payment: (1) review the Applications and certify the amount the Construction Manager determines is due each Contractor, (2) prepare a Summary of Contractors' Applications for Payment by summarizing information from each Contractor's Application for Payment, (3) prepare a Project Application and Certificate for Payment, (4) certify the total amount the Construction Manager determines is due all Multiple Prime Contractors collectively, and (5) forward the Summary of Contractors' Applications for Payment and Project Application and Certificate for Payment to the Architect. AIA Document C132T"" - 2009 formerly 8801 T"'CMa -1992). Copyright ©1973,1980,1992 and 2009 by The American Institute of Architects. All rights Init. reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 8 this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible ~ under the law. This document was produced by AIA software at 14:04:08 on 0412612011 under Order No.1674032595_1 which expires on 0111712012, and is not for resale. (1383286886) User Notes: .12.3 The Construction Mana er's certification for payment shall constitute a representation to the Owner, based § 3.3 g on the Construction Manager's evaluations of the Work and on the data comprising the Contractors' Applications for Pa ent that, to the best of the Construction Manager's knowledge, information and belief, the Work has ro essed to the oint indicated and the quality of the Work is in accordance with the Contract Documents. The P ~' p fore oin representations are subject to an evaluation of the Work for conformance with the Contract Documents g g u on Substantial Com letion, to results of subsequent tests and inspections, to correction of minor deviations from p p the .Contract Documents prior to completion and to specific qualifications expressed by the Construction Manager. The issuance of a Certificate for Payment shall further constitute a recommendation to the Architect and Owner that the Contractor be paid the amount certified. 3.3.12.4 The certification of an Application for Payment or a Project Application for Payment by the Construction Maria er shall not be a representation that the Construction Manager has (1) made exhaustive or continuous on-site g ins ections to check the quality or quantity of the Work; (2) reviewed construction means, methods, techniques, P sequences for the Contractor's own Work, or procedures; (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to a ent; or (4) ascertained how or for what purpose the Contractor has used money previously paid on account of P ym the Contract Sum. §..3.3.13.. The Construction Manager shall review the safety programs developed by each of the Multiple Prime Contractors. solely and exclusively for purposes of coordinatrog the safety programs with those of the other Contractors and for making recommendations tothe Owner for any safety programs not included in the Work of the Multiple Prime Contractors. The Construction Manager's responsibilities for coordination of safety programs shall not extend to direct control over or charge of the acts or omissions of the Contractor, Multiple Prime Contractors, Subcontractors, agents or employees of the Contractors or Multiple Prime Contractors or Subcontractors, or any other persons performing portions of the Work and not directly employed by the Construction Manager. § 3.3.14 The Construction Manager shall determine in general that the Work of each Contractor is being performed in accordance with the requirements of the Contract Documents and notify the Owner, Contractor and Architect of defects and deficiencies in the Work. The Construction Manager shall have the authority to reject Work that does not conform to the Contract Documents and shall notify the Architect about the rejection. The failure of the Construction Manager to reject Work shall. not constitute the acceptance of the Work. The Construction Manager shall record an rejection of Work in its daily log and include information regarding the rejected Work in its YJ ro ess reports to the Architect and Owner pursuant to Section 3.3.20.1. Upon written authorization from the P ~' Owner, the Construction Manager may require and make arrangements for additional inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed, and the Construction Manager shall give timely notice to the Architect of when and where the tests and inspections are to be made so that the Architect may be present for such procedures. § 3.3.15 The Construction Manager shall advise and consult with the Owner and Architect during the performance of its Construction Phase Services. The Construction Manager shall have authority to act on behalf of the Owner only to the extent provided in this Agreement. The Construction Manager shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work of each of the Contractors, since these are solely the Contractor's rights and responsibilities under the Contract Documents. The Construction Manager shall not be responsible for a Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents. The -Construction Manager shall be responsible for the Construction Manager's negligent acts or omissions, but shall not have control over or charge of, and shall not be responsible for, acts or omissions of the Contractor or Multiple Prime Contractors, Subcontractors, or their agents or employees, or any other persons or any other persons or entities performing portions of the Work. § 3.3.16 The Construction Manager shall transmit to the Architect requests for interpretations and requests for information of the meaning and intent of the Drawings and Specifications with its written recommendation, and assist in the resolution of questions that may arise. AIA Document C132T"" - 2009 formerly 6801 T""CMa -1992). Copyright ©1973,1980,1992 and 2009 by The American Institute of Architects. All rights Init. reserved. WARNING: This AIA Document is protected by V.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 9 this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible ~ under the law. This document was produced by AIA software at 14:04:08 on 04/2612011 under Order No.1674032595_1 which expires on 0111712012, and is not for resale. User Notes: (1383286886) 3.3.17 The Construction Manager shall review requests for changes, assist in negotiating Contractors' proposals, submit recommendations totheArchitect and Owner, and, if they are accepted, prepare Change Orders and Construction Change Directives that incorporate the Architect's modifications to the Contract Documents. 3.3,1$ The Construction Manager shall assist the Initial Decision Maker in the review, evaluation and § . documentation of Claims, subject to Section 4.3.1.7. ' ' ' submittal schedules rovided b each Contractor, the Construction Manager shall prepare, and § 3.3.19 Utihzmg the p Y revise as necessary, a Project submittal schedule incorporating information from the Owner, Owner's consultants, Owner's se crate contractors and vendors, governmental agencies, and all other participants in the Project under the P mana ement of the Construction Manager. The Project submittal schedule and any revisions shall be submitted to g the Architect for approval. The Construction Manager shall promptly review all Shop Drawings, Product Data, Sam les and other submittals from the Multiple Prime Contractors for compliance with the submittal requirements p of the Contract, .coordinate submittals with information contained in related documents, and transmit to the Architect those that the Construction Manager recommends for approval. The Construction Manager's actions shall betaken in accordance with the Project submittal schedule approved by the Architect, or in the absence of an approved Project submittal schedule, with such reasonable promptness as to cause no delay in the Work or in the activities of J the Contractor, other Multiple Prime Contractors, the Owner, or the Architect. .2 The Construction Mana er shall kee a daily log containing a record of weather, each Contractor's Work on § 3.3 0 g P the site, number of workers, identification of equipment, Work accomplished, problems encountered, and other similar relevant data as the Owner may require. § 3.3.20.1 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 identified below: .1 Work completed for the period; .2 Project schedule status; .3 Submittal schedule and status report, including a summary of remaining and outstanding submittals; .4 Request for information, Change Order, and Construction Change Directive status reports; .5 Tests and inspection reports; .6 Status report of nonconforming and rejected Work; .l Daily logs; .8 Summary of all Multiple Prime Contractors' Applications for Payment; .9 Cumulative total of the Cost of the Work to date including the Construction Manager's compensation and reimbursable expenses at the job site, if any; .10 Cash-flow and forecast reports; and .11 Any other items the Owner may require: § 3.3.20,2 In addition, for Projects constructed on the basis of the Cost of the Work, the Construction Manager shall include the following additional information in its progress reports: .1 Contractor's work force report; .2 Equipment utilization report; .3 Cost summary, comparing actual costs to updated cost estimates; and .4 Any other items as the Owner may require: § 3.3.21 Utilizing the documents provided by the Contractor, the Construction Manager shall maintain at the site one copy of all Contracts, Drawings, Specifications, addenda, Change Orders and other Modifications, in good order and marked currently to record all changes and selections made during construction, and in addition, approved Shop Drawings, Product Data, Samples and similar required submittals. The Construction Manager shall maintain records, in duplicate, of principal building layout lines, elevations of the bottom of footings, floor levels and key site elevations certified by a qualified surveyor or professional engineer. The Construction Manager shall make all such records available to the Architect and the Contractor, and upon completion of the Project, shall deliver them to the Owner. AIA Document C132T"" - 2009 formerly B801 TMCMa -1992). Copyright ©1973,1980,1992 and 2009 by The American Institute of Architects. All rights Init. reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and international Treaties. Unauthorized reproduction or distribution of 1 O this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible ~ under the law. This document was produced by AIA software at 14:04:08 on 0412612011 under Order No.1674032595_1 which expires on 0111712012, and is not for resale. User Notes: (1383286886) 3.3.22 The Construction Manager shall arrange for the delivery, storage, protection and security of Owner- urchasedmaterials, systems and equipment that are a part of the Project until such items are incorporated into the p Work. Architect and the Owner's maintenance personnel, the Construction Manager shall observe the :3.3.23 .With the Contractor's or Multiple Prime Contractors' final testing and start-up of utilities, operational systems and equipment and observe any commissioning as the Contract Documents may require. 3.3.24 When the Construction Manager considers each Contractor's Work or a designated portion thereof is substantiall coin lete, the Construction Manager shall, jointly with the Contractor, prepare for the Architect a list of y p incom lete or unsatisfactory items and a schedule for their completion. The Construction Manager shall assist the P Architect in conducting inspections to determine whether the Work or designated portion thereof is substantially complete. 3.3.25 When the Work or designated portion thereof is substantially complete, the Construction Manager shall re are, and the Construction Manager and Architect shall execute, a Certificate of Substantial Completion. The pp Construction Manager shall submit the executed Certificate to the Owner and Contractor. The Construction Manager shall coordinate the correction and completion of the Work. Following issuance of a Certificate of Substantial Coin letion of the Work or a designated portion thereof, the Construction Manager shall evaluate the completion of p the Work of the Contractor or Multiple Prime Contractors and make recommendations totheArchitect when Work is read for final inspection. The Construction Manager shall assist the Architect m conducting final inspections. Y e Construction Mana er shall forward to the Owner, with a copy to the Architect, the following § 3.3.26. Th g .information received from the Contractor or Multiple Prime Contractors: (1) certificates of insurance received from the Contractor or Multiple Prime Contractors; (2) consent of surety or sureties, if any, to reduction in or partial release of retainage or the making of final payment; (3) affidavits, receipts, releases and waivers of liens or bonds indemni ing the Owner against liens; and (4) any other documentation required of the Contractor under the Contract Documents, including warranties and similar submittals. uction Mana er shall deliver all ke s, manuals, record drawings and maintenance stocks to the § 3.3.21 The Constr g y Owner. The Construction Manager shall forward to the Architect a final Project Application for Payment and Project for Pa ent or final A lication for Payment and final Certificate for Payment upon the Contractor's Certificate yin pp compliance with the requirements of the Contract Documents. 3.3.28 Duties, responsibilities and'lmitations ofauthority ofthe Construction Manager as set forth in the Contract Documents shall not be restricted, modified or extended without written consent of the Owner, Construction Mana er, Architect, Contractor and Multiple Prime Contractors. Consent shall not be unreasonably withheld. g 3.3.29 U on re uest of the Owner, and prior to the expiration of one year from the date of Substantial Completion, § P q the Construction Manager shall, without additional compensation, conduct a meeting with the Owner to review the facility operations and performance. ARTICLE 4 ADDITIONAL SERVICES 4.1 Additional Services listed below are not included in Basic Services but may be required for the Project. The Construction Manager shall provide the listed Additional Services only if specifically designated in the table below as the Construction Mana er's responsibility, and the Owner shall compensate the Construction Manager as g provided in Section 11.2. Desi nate the Additional Services the Construction Manager shall provide in the second column of the table below. ( g In the third column indicate whether the service description is located in Section 4.2 or m an attached exhibit. If in an exhibit, identify the exhibit.) Services Responsibility Location of Service Description (Construction Manager, (Section 4.2 below or in an Owner or exhibit attached to this document Not Provided) and identified below) § 4.1.1 Measured drawin s Not Provided I 4.1.2 Architectural interior desi Not Provided AIA Document C132T"" - 2009 formerly 8801 T""CMa -1992). Copyright ©1973,1980,1992 and 2009 by The American Institute of Architects. All rights Inst. reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 11 this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:04:08 on 0412612011 under Order No.1674032595_1 which expires on 0111712012, and is 1 not for resale. (1383286886) User Notes: I (B252TM-2007) 4,1,3 Tenant-related services 4.1.4 Commissionin (B211TM-2007) 4.1,5 LEED certification (B214TM-2007} § 4,1,6 Furniture, furnishings, and equipment design (B253TM-2007) Not Provided Not Provided Not Provided Not Provided § 42 Insert a description of each Additional Service designated in Section 4.1, if not further described in an exhibit attached to this document.. None 4.3 Addtional'Services may be provided after execution of this Agreement, without invalidating this Agreement. Except for services required due to the fault of the Construction Manager, any Additional Services provided m accordance with this Section 4.3 shall entitle the Construction Manager to compensation pursuant to Section 11.3. § 4.3,1 Upon recognizing the need to perform the following Additional Services, the Construction Manager shall notify the Owner with reasonable promptness and explain the facts and circumstances giving rise to the need. The Construction Manager shall not proceed to provide the following services until the Construction Manager receives the Owner's written authorization: .1 Services necessitated by a change in the Initial Information, previous instructions or approvals given by the Owner, or a material change in the Project including, but not limited to, size, quality, complexity, the Owner's schedule or budget for Cost of the Work, or procurement or delivery method, or bid packages in addition to those listed in Section 1.1.6; .2 Services necessitated by the enactment or revision of codes, laws or regulations or official interpretations after the date of this Agreement; .3 Preparation of documentation for alternate bid or proposal requests proposed by the Owner; .4 Preparation for, and attendance at, a public presentation, meeting or hearing; .5 Preparation for, and attendance at a dispute resolution proceeding or legal proceeding, except where the Construction Manager is party thereto; .6 Providing consultationconcerning replacement of Work resulting from fire or other cause during construction and furnishing services required in connection with the replacement of such Work; .7 Assistance to the Initial Decision Maker, if other than the Architect; or .8 Service as the Initial Decision Maker. § 4.3,2 To avoid delay in the Construction Phase, the Construction Manager shall provide the following Additional Services, notify the Owner with reasonable promptness, and explain the facts and circumstances giving rise to the need. If the Owner subsequently determines that all or parts of those services are not required, the Owner shall give prompt written notice to the Construction Manager, and the Owner shall have no further obligation to compensate the Construction Manager for those services: ,1 Services in evaluating an extensive number of Claims submitted by a Contractor or others in connection with the Work when the Architect is serving as the Initial Decision Maker. .2 To the extent the Construction Manager's Basic Services are affected, providing Construction Phase Services 60 days after (1) the date of Substantial Completion of the Work or (2) the anticipated date of Substantial Completion, identified in Initial Information, whichever is earlier. .3 Services required in an emergency to coordinate the activities of a Contractor or Multiple Prime Contractors in the event of risk of personal injury or serious property damage, consistent with Section 3.3.13. § 4.3,3 If the services covered by this Agreement have not been completed within Fourteen (14) months of the date of this Agreement, through no fault of the Construction Manager, extension of the Construction Manager's services beyond that time shall be compensated as Additional Services. Init. ARTICLE 5 OWNER'S RESPONSIBILITIES § 5.1 Unless otherwise provided for under this Agreement, the Owner shall provide information in a timely manner regarding requirements for and limitations on the Project, including the Owner's program, other objectives, AIA Document C132T"" - 2009 formerly 6801 TMCMa -1992). Copyright ©1973,1980,1992 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 12 this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:04:08 on 0412612011 under Order No.1674032595_1 which expires on 0111712012, and is not for resale. (1383286886) User Notes: schedule constraints and criteria, special equipment, systems, and site requirements. Within 15 days after receipt of a written'request from the Construction Manager, the Owner shall furnish the requested information as necessary and relevant for the Construction Manager to evaluate, give notice of, or enforce any lien rights, if any. 5.2 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, (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 m the budget for the Cost oft e Work or in the.. Project's scope and quality. ed es that accelerated based or fast-track scheduling provides a benefit, but also carries § 5.3 The Owner acknowl g ~ p . with it the risk of additional costs. If the Owner selects accelerated, phased or fast-track scheduling, the Owner agrees to include in the budget for the Project sufficient contingencies to cover such costs. 5.4 The Owner shall retain an Architect to provide services, duties and responsibilities as described in AIA Document B 132-2009, Standard Form of Agreement Between Owner and Architect, Construction Manager as Adviser Edition. The Owner shall provide the Construction Manager a copy of the executed agreement between the Owner and Architect, and any further modifications to the agreement. ll denti are resentative authorized to act on the Owner's behalf with respect to the Project § 5.5 The Owner sha fy p The Owner shall render decisions pertaining to documents the Construction Manager submits in a timely manner m order to avoid unreasonable delay in the orderly and sequential progress of the Construction Manager's services. rovided b the Construction Manager, the Owner shall furnish surveys to describe physical § 5.6 Unless p y characteristics le al limitations and utility locations for the site of the Project, and a written legal description of the g site. The serve s and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and Y ad'oinin roe and structures; designated wetlands; adjacent drainage; rights-of way, restrictions, easements, J g p p ~' encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary h res ect to existin buildin s, other improvements and trees; and information concerning available utility data wit p g g sand lines both ublic and rivate, above and below grade, including inverts and depths. All the information service p p on the survey shall be referenced to a Project benchmark. 1 ss rovided b the Construction Manager, the Owner shall furnish services of geotechnical engineers, §S.lUne p y 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 eratons for antici atn subsoil conditions, with written reports and appropriate recommendations. necessary op p g § 5.$ The Owner shall coordinate the services of its own consultants with those services provided by the Construction Manager. Upon the Construction Manager's request, the Owner shall furnish copies of the scope of services in the contracts between the Owner and the Owner's consultants. The Owner shall furnish the services of consultants other than those designated in this Agreement, or authorize the Construction Manager to furnish them as an Additional Service, when the Construction Manager requests such services and demonstrates that they are reasonably required by the scope of the Project. The Owner shall require that its consultants maintain professional liability insurance and .other liability insurance as appropriate to the services provided. § 5.9 The Owner shall furnish tests, inspections and reports required by law or the Contract Documents, such as structural, mechanical, and chemical tests, tests for air and water pollution, and tests for hazardous materials. 5.10 The Owner shall furnish all legal, insurance and accounting services, including auditing services, that maybe reasonably necessary at any time for the Project to meet the Owner's needs and interests. § 5.11 The Owner shall provide prompt written notice to the Construction Manager and Architect if the Owner becomes aware of any fault or defect in Project, including errors, omissions or inconsistencies in the Architect's Instruments of Service or any fault or defect in the Construction Manager's services. AIA Document C132T"" - 2009 formerly 8801 TMCMa -1992). Copyright ©1973,1980,1992 and 2009 by The American Institute of Architects. All rights Init. reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 13 this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible ~ under the law. This document was produced by AIA software at 14:04:08 on 04/2612011 under Order No.1674032595 1 which expires on 01/1712012, and is not for resale. (1383286886) User Notes: er reserves the ri t to erform construction and operations related to the Project with the Owner's § 5.12 The Own ~ p tart of the Construction Manager s own forces, and to award contracts in connection with the Project which are no p ies under this A eement. The Construction Manager shall notify the Owner if any such independent responsib~lit ~' rfere with the Construction Manager's ability to perform the Construction Manager's responsibilities action will inte eement. When erforming construction or operations related to the Project, the Owner agrees to be under this Agr p .subject to the same obligations and to have the same rights as the Contractors. .13 Exce t as otherwise rovided in this Agreement, or when direct communications have been specially §5 p p authorized, the Owner shall endeavor to communicate with the Contractor and the Construction Manager s consultants throu the Construction Manager about matters arising out of or relating to the Contract Documents. The Owner shall rom tly notify the Construction Manager of any direct communications that may affect the p p Construction Manager's services. Contract for Construction, the Owner shall coordinate the Construction Manager's duties § 5.14 Before executing the and res onsibilities set forth in the Contract for Construction with the Construction Manager's services set forth in p this A eement. The Owner shall provide the Construction Manager a copy of the executed agreements between the ~' Owner and Contractors, including the General Conditions of the Contracts for Construction. 5.15 The Owner shall provide the Construction Manager access to the Project site prior to commencement of the Work and shall obligate the Contractor to provide the Construction Manager access to the Work wherever it is in preparation or progress. ARTICLE 6 COST QF THE WORK 6.1 For purposes of this Agreement, the Cost of the Work shall be the total cost to the Owner to construct all § elements of the Project designed or specified by the Architect and shall include the contractors' general conditions .costs, overhead and profit. The Cost of the Work includes the compensation of the Construction Manager and Construction Manager's Consultants during the Construction Phase only, including compensation for reimbursable expenses at the job site, if any. The Cost of the Work does not include the compensation of the Architect, the costs of the land, rights-of way, financing, contingencies for changes in the Work or other costs that are the responsibility of the Owner. 6.2 The Owner's bud et for the Cost of the Work is provided in Initial Information, and maybe adjusted § g throughout. the Project as required under Sections 5.2 and 6.4. Evaluations of the Owner's budget, preliminary estimates for the Cost of the Work and detailed estimates of the Cost of the Work prepared by the Construction Manager represent the Construction Manager's judgment as a person or entity familiar with the construction industry It is recognized, however, that neither the Construction Manager nor the Owner has control over the cost of labor materials or e ui ment, over Contractors' methods of determining bid prices, or over competitive bidding, s qp market or negotiating conditions. Accordingly, the Construction Manager cannot and does not warrant or represent that bids or negotiated prices will not vary from the budget proposed, established or approved by the Owner, or from any cost estimate or evaluation prepared by the Construction Manager. § 6.3 If the Architect is providing detailed cost estimating services as an Additional Service, and a discrepancy exists between the Construction Manager's cost estimates and the Architect's cost estimates, the Architect and the Construction Manager shall work cooperatively to conform the cost estimates to one another. § 6.4 If, prior to the conclusion of the Design Development Phase, the Construction Manager's estimate of the Cost of the Work exceeds the Owner's budget for the Cost of the Work, the Construction Manager, in consultation with the Architect, shall make appropriate recommendations tothe Owner to adjust the Project's size, quality or budget, -and the-Owner shall cooperate with the Construction Manager and Architect in making such adjustments. 6.5 If the estimate of the Cost of the Work at the conclusion of the Design Development Phase exceeds the § Owner's budget for the Cost of the Work, the Owner shall .1 give written approval of an increase in the budget for the Cost of the Work; .2 in consultation with the Construction Manager and Architect, revise the Project program, scope, or quality as required to reduce the Cost of the Work; or .3 implement any other mutually acceptable alternative. AIA Document C132T"' - 2009 formerly 8801 T"'CMa -1992). Copyright ©1973,1980,1992 and 2009 by The American Institute of Architects. All rights Inst. reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 14 this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible ~ under the law. This document was produced by AIA software at 14:04:08 on 0412612011 under Order No.1674032595 1 which expires on 0111712012, and is not for resale. (1383286886) User Notes: ARTICLE 1 COPYRIGHTS AND LICENSES The Construction Manager and the Construction Manager's consultants, if any, shall not own or claim a copyright in the Instruments of Service. The Construction Manager, the Construction Manager's consultants, if any, and the Owner warrant that in transmitting Instruments of Service, or any other information, the transmitting party is the copyright owner of such information or has permission from the copyright owner to transmit such information for its use on the Project. If the Owner and Construction Manager intend to transmit Instruments of Service or any other information or documentation in digital form, they shall endeavor to establish necessary protocols governing such transmissions. ARTICLE 8 CLAIMS AND DISPUTES § 8.1 General 8.1.1 The Owner and Construction Manager shall commence all claims and causes of action, whether in contract, tort, or otherwise, against the other arising out of or related to this Agreement in accordance with the requirements of the method of binding dispute resolution selected in this Agreement within the period specified by applicable law, but in any case not more than 10 years after the date of Substantial Completion of the Work. The Owner and Construction Manager waive all claims and causes of action not commenced in accordance with this Section 8.1.1. § 8.1.2 To the extent damages are covered by property insurance, the Owner and Construction Manager waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages, except such rights as they may have to the proceeds of such insurance as set forth in AIA Document A232-2009, General Conditions of the Contract for Construction. The Owner or the Construction Manager, as appropriate, shall require of the contractors, consultants, agents and employees of any of them similar waivers in favor of the other parties enumerated herein. § 8.1.3 The Construction Manager shall indemnify and hold the Owner and the Owner's officers and employees harmless from and against damages, losses and judgments arising from claims by third parties, including reasonable attorneys' fees and expenses recoverable under applicable law, but only to the extent they are caused by the negligent acts or omissions of the Construction Manager, its employees and its consultants in the performance of professional services under this Agreement. The Construction Manager's duty to indemnify the Owner under this provision shall be limited to the available proceeds of insurance coverage. 8.1.4 The Construction Manager and Owner waive consequential damages for claims, disputes or other matters in question arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination of this Agreement, except as specifically provided in Section 9.7. § 8.1.5 The City shall indemnify and save and hold harmless the Construction Manager from and for any and all losses, claims, actions, judgments for damages, or injury to persons or property and losses and expenses and other costs including litigation costs and attorney fees arising out of, resulting from, or in connection with the performance of this agreement that are not caused by or arising out of the tortuous conduct of the Construction Manager. § 8.2 Mediation § 8.2.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to binding dispute resolution. If such matter relates to or is the subject of a lien arisin out of the Construction Manager's services, the Construction Manager may proceed in accordance with g applicable law to comply with the lien notice or filing deadlines prior to resolution of the matter by mediation or by binding dispute resolution. § 8.2.2 The Owner and Construction Manager shall endeavor to resolve claims, disputes and other matters in question between them by mediation which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with its Construction Industry Mediation Procedures in effect on the date of the Agreement. A request for mediation shall be made in writing, delivered to the other party to the Agreement, and filed with the person or entity administering the mediation. The request may be made concurrently with the filing of a complaint or other appropriate demand for binding dispute resolution but, in such event, mediation shall proceed in advance of binding dispute resolution proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the AIA Document C132T"' - 2009 formerly 6801 T""CMa -1992). Copyright ©1973,1980,1992 and 2009 by The American Institute of Architects. All rights Init. reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 15 this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible ~ under the law. This document was produced by AIA software at 14:04:08 on 0412612011 under Order No.1674032595_1 which expires on 0111712012, and is not for resale. (1383286886) User Notes: R arties or court order. If an arbitration proceeding is stayed pursuant to this section, the parties may nonetheless p roceed to the selection of the arbitrator(s) and agree upon a schedule for later proceedings. P ' shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place § 8.2.3 The parties e the Pro'ect is located, unless another location is mutually agreed upon. Agreements reached m mediation shall whet J havin 'urisdiction thereof. be enforceable as settlement agreements in any court g J 4 If the arties do not resolve a dispute through mediation pursuant to this Section 8.2, the method of binding § 8.2. p dispute resolution shall be the following: Check the a ro riate box. If the Owner and Construction Manager do not select a method of binding dispute ( pp p resolution below, or do not. subsequently agree in writing to a binding dispute resolution method other than litigation, the dispute will be resolved in a court of competent jurisdiction.) [ ] Arbitration pursuant to Section 8.3 of this Agreement [ X ] Litigation in a court of competent jurisdiction [ ] Other: (Specify) § 8.3 Arbitration § .8.3.1 If the :parties have selected arbitration as the method for binding dispute resolution in this Agreement any claim, dis ute or other matter in question arising out of or related to this Agreement subject to, but not resolved by, p mediation shall be subject to arbitration which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with its Construction Industry Arbitration Rules in effect on the date of the Agreement. A demand for arbitration shall be made in writing, delivered to the other party to this Agreement, and filed with the person or entity administering the arbitration. § 8.3.1.1 A demand for arbitration shall be made no earlier than concurrently with the filing of a request for mediation, but in no event shall it be made after the date when the institution of legal or equitable proceedings based on the claim dis ute or other matter in question would be barred by the applicable statute of limitations. For statute p of limitations purposes, receipt of a written demand for arbitration by the person or entity administering the arbitration shall constitute the institution of legal or equitable proceedings based on the claim, dispute or other matter in question. § 8.3.2 The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity dui consented to by parties to this Agreement shall be specifically enforceable in accordance with applicable law in Y any court having jurisdiction thereof. § 8.3,3 The award rendered by the arbitrator(s) shall be final, and judgment maybe entered upon it in accordance with applicable law in any court having jurisdiction thereof. § 8.3,4 Consolidation or Joinder § 8,3.4.1 Either party, at its sole discretion, may consolidate an arbitration conducted under this Agreement with any other arbitration to which it is a party provided that (1) the arbitration agreement governing the other arbitration ermits consolidation, (2) the arbitrations to be consolidated substantially involve common questions of law or fact, P and (3) the arbitrations employ materially similar procedural rules and methods for selecting arbitrator(s). $.3.4.2 Either , at its sole discretion, may include by joinder persons or entities substantially involved in a § per' common question of law or fact whose presence is required if complete relief is to be accorded in arbitration, provided that the party sought to be joined consents in writing to such joinder. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of any claun, dispute or other matter in question not described in the written consent. AIA Document C132T"" - 2009 formerly 8801 T""CMa -1992). Copyright ©1973,1980,1992 and 2009 by The American Institute of Architects. All rights Inst. reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 16 this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible ~ under the law. This document was produced by AIA software at 14:04:08 on 04/2612011 under Order No.1674032595 1 which expires on 0111712012, and is not for resale. (1383286886) User Notes: 8.3.4.3 The Owner and Construction Manager grant to any person or entity made a party to an arbitration conducted under this Section 8.3, whether by joinder or consolidation, the same rights of joinder and consolidation as the Owner and Construction Manager under this Agreement. ARTICLE 9 TERMINATION OR SUSPENSION 9.1 If the Owner fails to make payments to the Construction Manager in accordance with this Agreement, such failure shall be considered substantial nonperformance and cause for termination or, at the Construction Manager s o ton cause for suspension of performance of services under this Agreement. If the Construction Manager elects to p sus end services, the Construction Manager shall give seven days' written notice to the Owner before suspending p services. In the event of a suspension of services, the Construction Manager shall have no habihty to the Owner for Bela or damage caused the Owner because of such suspension of services. Before resuming services, the Y Construction Mana er shall be paid all sums due prior to suspension and any expenses incurred in the interruption g and resum tion of the Construction Manager's services. The Construction Manager's fees for the remaining services p and the time schedules shall be equitably adjusted. 2 If the Owner sus ends the Project, the Construction Manager shall be compensated for services performed §9. p J rior to notice of such suspension. When the Project is resumed, the Construction Manager shall be compensated for p ex enses incurred in the interruption and resumption of the Construction Manager's services. The Construction p Manager's fees for the remaining services and the time schedules shall be equitably adjusted. ends the Project for more than 90 cumulative days for reasons other than the fault of the § 9.3 If the Owner cusp J Construction Man er, the Construction Manager may terminate this Agreement by giving not less than seven days' written notice. terminate this A eement u on not less than seven days' written notice should the other party § 9.4 Esther party may ~' p .fail substantiall to erform in accordance with the terms of this Agreement through no fault of the party initiating y p the termination. The Owner ma terminate this Agreement upon not less than seven days' written notice to the Construction § 9.5 y , Manager for the Owner s convenience and without cause. ent of termination not the fault of the Construction Manager, the Construction Manager shall be §9.6Intheev coin ensated for services performed prior to termination, together with Reimbursable Expenses then due and all p Termination Expenses as defined in Section 9.7. rmination Ex enses are in addition to compensation for the Construction Manager's services and include § 9.7 Te p ex enses directs attributable to termination for which the Construction Manager is not otherwise compensated, p us p y an amount for the Construction Manager's anticipated profit on the value of the services not performed by the Construction Manager, as set forth below. 9.7.1 In the event of termination for the Owner's convenience prior to commencement of construction, the Construction Mana er shall be entitled to receive payment for services performed, costs incurred by reason of such g termination and reasonable overhead and profit on Preconstruction services not completed during the Preconstruction Phase. 9.7.2 In the event of termination for the Owner's convenience after commencement of construction, the Construction Mana er shall be entitled to receive payment for services performed and costs incurred by reason of g such termination, along with reasonable overhead and profit on services not completed during the Construction Phase. ARTICLE 10 MISCELLANEOUS PROVISIONS 10.1 This A eement shall be governed by the law of the place where the Project is located, except that if the § ~ ..artier have selected arbitration as the method of binding dispute resolution, the Federal Arbitration Act shall govern p Section 8.3. AIA Document C132TM - 2009 formerly B801 TM'CMa -1992). Copyright ©1973,1980,1992 and 2009 by The American Institute of Architects. All rights Init. reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 17 this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:04:08 on 0412612011 under Order No.1674032595_1 which expires on 0111712012, and is not for resale. (1383286886) User Notes: ' ment shall have the same meaning as those in AIA Document A232-2009, General § 10.2 Terms m this Agree r Construction exce t for purposes of this Agreement, the term "Work" shall include Conditions of the Contract fo ~ p the work of all Contractors under the administration of the Construction Manager. Construction Mana er, respectively, bind themselves, their agents, successors, assigns and §.10.3. The Owner and g entatives to this A eement. Neither the Owner nor the Construction Manager shall assign this legal repres ~' t the written consent of the other, except that the Owner may assign this Agreement to a lender Agreement withou mancin for the Project if the lender agrees to assume the Owner's rights and obligations under this providing f g J Agreement. .4 If the Owner re nests the Construction Manager to execute certificates, the proposed language of such §10 q shallbe submitted to the Construction Manager for review at least 14 days prior to the requested dates of .certificates execution. If the Owner re nests the Construction Manager to execute consents reasonably requ>red to facilitate q assi merit to a lender, the Construction Manager shall execute all such consents that are consistent with this A reement rovided the roposed consent is submitted to the Construction Manager for review at least 14 days g ,p p rior to execution. The Construction Manager shall not be required to execute certificates or consents that would p re uire knowledge, services or responsibilities beyond the scope of this Agreement. q 10.5 Nothin contained in this Agreement shall create a contractual relationship with or a cause of action in favor § g of a third party. against either the Owner or Construction Manager. wise. re uired in this A eement, the Construction Manager shall have no responsibility for the § 10.6 Unless other q ~' discovery, presence, handling, removal or disposal of, or exposure of persons to, hazardous materials or toxic substances in any form at the Project site. nstruction Maria er shall have the ri t to include photographic or artistic representations ofthe design §10.lTheCo g ~ of the Project among the Construction Manager's promotional and professional materials. The Construction Mana er shall be given reasonable access to the completed Project to make such representations. However, the g Construction Manager's materials shall not include the Owner's confidential or proprietary information if the Owner has reviousl advised the Construction Manager in writing of the specific information considered by the Owner to p Y be confidential or proprietary. The Owner shall provide professional credit for the Construction Manager m the Owner's promotional materials for the Project. 10.8 If the Construction Manager or Owner receives information specifically designated by the other party as "confidential" or "business proprietary," the receiving party shall keep such information strictly confidential and shall not disclose it to any other person except to (1) its employees, (2) those who need to know the content of such information in order to perform services or construction solely and exclusively for the Protect, or (3) its consultants and contractors whose contracts include similar restrictions on the use of confidential information. ARTICLE 11 COMPENSATION 11.1 For the- Construction Manager's Basic Services described under Article 3, the Owner shall compensate the Construction Manager as follows: § 11.1.1 For Preconstruction Phase Services in Section 3.2: Insert amount of, or basis for, compensation, including stipulated sums, multiples or percentages.) { 6% of the Cost of the Work -See Exhibit A, Attached § 11.1.2 For Construction Phase Services in Section 3.3: (Insert amount of, or basis for, compensation, including stipulated sums, multiples or percentages.) 6% of the Cost of the Work -See Exhibit A, Attached § 11.2 For Additional Services designated in Section 4.1, the Owner shall compensate the Construction Manager as follows: Insert amount of, or basis for, compensation. If necessary, list specific services to which particular methods of compensation apply.) AIA Document C132TM - 2009 formerly 8801 TMCMa -1992). Copyright ©1973,1980,1992 and 2009 by The American Institute of Architects. All rights Inst. reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of ~ $ this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible ~ under the law. This document was produced by AIA software at 14:04:08 on 0412612011 under Order No.1674032595_1 which expires on 0111712012, and is not for resale. (1383286886) User Notes: I Not Provided § 11.3 For Additional Services that may arise during the course of the Project, including those under Section 4.3, the Owner. shall compensate the Construction Manager as follows: (Insert amount of, or basis for, compensation.) Complete Cost of Services plus a fee of 6% -Note: Any labor provided by Kreizenbeck Constructors' direct personnel shall be billed at the rates included in Exhibit A, Attached. § 11.4 Compensation for Additional Services of the Construction Manager's consultants when not included in Sections 11.2 or 1 L3, shall be the amount invoiced to the Construction Manager plus percent ( %), or as otherwise stated below: Complete Cost of Services plus. a fee of 6% Note: Any labor provided by Kreizenbeck Constructors' direct personnel shall be billed at the rates included in Exhibit A, Attached. § 1.1.5 The hourly billing rates for services of the Construction Manager and the Construction Manager's consultants, if any, are set forth below. The rates shall be adjusted in accordance with the Construction Manager's and Construction Manager's consultants' normal review practices. (If applicable, attach an exhibit of hourly billing rates or insert them below.) .....Exhibit A, Attached Employee or Category Rate ($0.00) 11.6 Compensation for Reimbursable Expenses 11.6.1 Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Construction Manager and the Construction Manager's consultants directly related to the Project, as follows: .1 Transportation and authorized out-of town travel and subsistence; .2 Long distance services, dedicated data and communication services, teleconferences, Project Web sites, and extranets; .3 Fees paid for securing approval of authorities having jurisdiction over the Project; .4 Printing, reproductions, plots, standard form documents; .5 Postage, handling and delivery; .6 Expense of overtime work requiring higher than regular rates, if authorized in advance by the Owner; .7 Professional photography, and presentation materials requested by the Owner; .8 Construction Manager's consultant's expense of professional liability insurance dedicated exclusively to this Project, or the expense of additional insurance coverage or limits if the Owner requests such insurance in excess of that normally carried by the Construction Manager's consultants; .9 All taxes levied on professional services and on reimbursable expenses; .10 Site office expenses; and .11 Other similar Project-related expenditures; .12 See Exhibit A, Attached. § 11.6.2 For Reimbursable Expenses the compensation shall be the expenses incurred by the Construction Manager and the Construction Manager's consultants plus Zero percent (0.00 %) of the expenses incurred. § 11.7 Payments to the Construction Manager § 11.7.1 An initial payment of Zero Dollars and Zero Cents ($ 0.00) shall be made upon execution of this Agreement and is the minimum payment under this Agreement. It shall be credited to the Owner's account in the final invoice. AIA Document C132T"' - 2009 formerly 8801 TMCMa -1992). Copyright ©1973,1980,1992 and 2009 by The American Institute of Architects. All rights Inst. reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 19 this AlA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible ~ under the law. This document was produced by AIA software at 14:04:08 on 04/2612011 under Order No.1674032595_1 which expires on 0111712012, and is not for resale. User Notes: (1383286886) wise a eed a ents for services shall be made monthly in proportion to services performed. . § 11.7.2 Unless other gr , p yin e due and a able u on resentation of the Construction Manager s invoice. Amounts unpaid Thv~ty Payments ar p y p p the invoice date shall bear interest at the rate entered below, or in the absence thereof at the legal rate 30) days after revailing from time to time at the principal place of business of the Construction Manager. P (Insert rate of monthly or annual interest agreed upon.) Prime Rate plus 3% or 7% whichever is greater % per annum amounts from the Construction Manager's compensation to impose a penalty § 11.7.3 The Owner shall not withhold or aid to Contractors for the or liquidated damages on the Construction Manager, or to offset sums requested by p cost of than es in the Work unless the Construction Manager agrees or has been found liable for the amounts ><n a g binding dispute resolution proceeding. 1.7.4 Records of Reimbursable Expenses, expenses pertaining to Additional Services, and services performed on §1 the basis of hourly rates shall be available to the Owner at mutually convenient times. ARTICLE 12 SPECIAL TERMS AND CONDITIONS Special terms and conditions that modify this Agreement areas follows: ARTICLE 13 SCOPE OF THE AGREEMENT 13.1 This A Bement represents the entire and integrated agreement between the Owner and the Construction § ~' Mona er and su ersedes all prior negotiations, representations or agreements, either written or oral. This Agreement g P maybe amended only by written instrument signed by both Owner and Construction Manager. § 13.2 This Agreement is comprised of the following documents listed below: .1 AIA Document C 132T~--2009, Standard Form Agreement Between Owner and Construction Manager as Adviser .2 AIA Document E201TM-2007, Digital Data Protocol Exhibit, if completed, or the following: None Document E202TM-2008, Building Information Modeling Protocol Exhibit, if completed, or the .3 AIA following: None .4 Other documents: List other documents, if any, including additional scopes of service forming part of the Agreement.) ( Exhibit A, Attached This Agreement is entered into as of the day and year first written above. . ,= ~,~~~ ~~ ~..~~~ 0 ER (Si at e) CONSTRUCTIO ANAGER (Signature) Tamm de Weerd, Mayor Michael J Berard,Manager (Printed name and title) (Printed name and title) AIA Document C132T"' - 2009 formerly 8801 TMCMa -1992). Copyright ©1973,1980,1992 and 2009 by The American Institute of Architects. All rights Init. reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 20 this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:04:08 on 04126/2011 under Order No.1674032595_1 which expires on 01117!2012, and is I not for resale. (1383286886) User Notes: EXHIBIT A Construction Manager's Fee ion Mana er's fee will be Six Percent (6%) of all construction costs that are associated The Construct g with this project. Reimbursable Expenses (General Conditions) to be covered under the reimbursable expenses are all costs either incurred at the job site or The costs created s ecificall by the job. Typically they include but are not limited to the follow: p Y Senior Project Manager Project Engineer Superintendent Carpenter Temporary Electricity Temporary Power Temporary Water Temporary Lighting Temporary Phone 1 Fax Temporary Walls /Dust Partitions Chemical Toilets Safety Janitorial Final Dumpsters Security Small Tools Liability Insurance Printing Costs Per Diem 1 Housing Storage Trailers Office Supplies Field Surveying Printing Costs Winter Heat Temporary Fencing Continuous Clean-up Construction Photographs Postage !Express Project Identification Legal Fees Bond Travel Expenses All reimbursable costs will be charged at actual invoice cost and all labor rates will be charged as per the following rate schedule: Rate Schedule Position 1 Cate or Amount 1 Hour Senior Project Manager $125.00 Project Engineer $88.00 Superintendent $74.00 Carpenter $58.00 wwvv. kreizen beck. com 251 EAST FRONT STREET, SUITE 110 ^ BOISE, IDAHO 83702 ^ 208.336.9500 208.336.7444 ICR No. RCE-764