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HomeMy WebLinkAboutC03-062 Shaw Construction~ CDC-6c-~~ CM/GC AGREEMENT FOR EAGLE COUNTY AIRPORT AIR TERMIlVAL CONTROL TOWER (ATCT) THIS AGREEMENT made this i~~ day of in the year 2003 between Eagle County, Colorado, acting by and throu its Board of County Commissioners ("The County"), on behalf of ~ ~ r(kW ~ til~~h-vc~i ®~ Colorado nonprofit corporation organized for the benefit of the people of Eagle Coun ~ and CONTRACTOR, a corporation organized and existing by virtue of the laws of the State of L t~,~ and engaged hereby to serve as Construction Manager/General Contractor (the CM/GC"). WHEREAS The County intends to design and construct a new air terminal control tower for use by the Eagle County Airport with a gross square footage of approximately Four Thousand Five Hundred (4,500) square feet at a cost estimated to not exceed one million six hundred thousand dollars ($1,600,000); and WHEREAS the engineer /architect for the Project is William E. Payne & Associates (Engineer/Architect), (te1303-790-9019); WHEREAS the CM/GC represents to The County that it is authorized to do business in the state of Colorado, and that if has, by virtue of its strong in-house capabilities of budgeting, cost estimating, management, and personnel: the required technical and professional expertise to work with The County and the Engineer /architect in order to formulate the Project Budget; fiuvish the Engineer /architect with the information on construction technology and market conditions; assure that the building design stays within the Project Budget and Guaranteed Maximum Price; manage the procurement effort; undertake and supervise the construction of the Work; and, provide, as required, associated services to complete the Project. NOW THEREFORE, The County and the CM/GC, for the consideration hereinafter set forth, agree as follows: ARTICLE I -THE WORK 1.1.1. The County intends to design and construct a new air terminal control tower for use by the Eagle County Airport with a gross square footage of approximately 6,800 square feet which will house airport control equipment and personnel, at a cost estimated to not exceed one million six hundred thousand dollars ($1,600,000), hereinafter referred to as the "Project." (Construction cost does not include property acquisition, design, tap fees, unless specifically set forth herein.) 1.1.2. In the performance of the Work under this Agreement, the CM/GC acknowledges that time is critical for project delivery. G: I CPROJEC71AirportlTower ProjectlATCT- CMGC contract2WPD.wpd Page 1 ~JO 1.1.3. In the performance of the Work under this Agreement, the CM/GC acknowledges that the approach to construction utilizing the services of an Engineer /architect and Construction Manager/General Contractor requires maximum cooperation between all parties. It further acknowledges that the services to be rendered by the CM/GC and the interrelationships and coordinative aspects thereof may not be fully defined. In furtherance thereof, in the event there appears to be a duplication, overlap, or conflict of responsibilities of or duties between the Engineer / architect and CM/GC or an absence of designation, the question shall be submitted to The County for determination. The CM/GC and the Engineer /architect shall abide by the decision of The County. If the CM/GC claims any increase in the Work arises by virtue of such decision, it shall follow the procedures as stated in Article 19 or its right to assert a Claim shall be forever barred and non-compliance with the Notice procedure shall require denial of claim by The County. 1.1.4. The CM/GC is responsible for determining the quantity and scope of all bid packages and for breaking apart the contract documents into suitable packages and then coordinating the entire package. Any lack of coordination among bid packages prepared by CM/GC shall not be grounds for an increase in the GMP. 1.1.5. The CM/GC agrees to cooperate fully with The County and Engineer /architect in the design and construction aspects of the Work. 1.1.6. The CM/GC accepts the relationship of trust and confidence established between it and The County by this Agreement. The CM/GC covenants with The County to furnish its best skill, professionalism, and judgment and to cooperate in furthering the interests of The County. The CM/GC agrees to furnish efficient business administration and superintendence and to complete the Work in an expeditious, professional, good workmanlike, and economical manner consistent with the interests of The County. 1.1.7. The CM/GC, the Project Manager, and the Engineer /architect (hereinafter called the "Construction Team"), shall work from design through construction completion. The CM/GC shall provide leadership to the Construction Team on all matters relating to construction. 1.1.8. The Contract Documents shall not be deemed to create any contractual relationship between the Engineer /architect and the CM/GC or any separate contractors, subcontractors of any tier or suppliers on the Project; nor shall anything contained in the Contract Documents be deemed to give any third party any claim or right of action against The County, the Engineer /architect or the CM/GC which does not otherwise exist without regard to the Contract Documents. 1.1.9. The CM/GC shall begin services within ten days from the issuance of a Notice to Proceed. 1.1.10. Execution of this Agreement by the CM/GC is a representation that the CM/GC is cognizant of its responsibilities, has visited the site, become familiar with the local conditions under which the Work is to be performed, and has correlated personal observations with the requirements of the Contract Documents. G: ICPROJECT1AirportlTower ProjectlATCT- CMGC contract2WPD.wpd Page 2 1.1.11. The intent of the Contract Documents is to include all items and services necessary for the proper execution and completion of the Work. The Contract Documents are complementary, and what is required by any one shall be as binding as if required by all. Words and abbreviations which have well known technical or trade meanings are used in the Contract Documents in accordance with such recognized meanings. If there is conflicting variance between the drawings and specifications, the requirements of the drawings shall control unless the Engineer /architect directs otherwise in writing. 1.1.12. The CM/GC shall furnish labor and services (1) which expeditiously, economically and properly complete its particular scope of the Work in the manner most consistent with The County's interests and objectives, (2) in accordance with the Construction Documents, and (3) in accordance with the highest standards currently practiced by persons and entities performing comparable labor and services on projects similar in size, complexity and cost in the State where the Project is located. 1.1.13. The CM/GC shall perform services and provide goods so that it complies with all applicable laws, statutes, rules and regulations of any public authority or agency, and applicable national building codes, in effect at the time it commences its scope of the Work. 1.1.14. The County's consultants (including but not limited to all engineer /architects and the site civil engineer), acting as contractors and not agents of The County, will prepare and furnish Construction Documents for the Project. The County makes no express warranties, and disclaims all implied warranties, with respect to the Construction Documents. More specifically, and without limitation: The County's review and/or approval of any construction documents shall not relieve CM/GC of its responsibility to satisfactorily construct all Work. 2. It is the CM/GC's expressed responsibility to review all design and construction documents relating to constructability and potential conflicts. The purpose of this review is to minimize change orders due to conflicts in the Construction Documents to the extent possible. This section applies to all Construction Documents. 1.1.15. The CM/GC shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating and constructing its scope of the Work, including site safety and safety precautions and programs. The CM/GC shall not be deemed the agent of The County with respect to construction means, methods, techniques or procedures, or safety precautions and programs, in connection with the Work. 1.1.16. Safety shall be a primary responsibility of the CM/GC at all times. All construction operations must be conducted so as to insure the safety of, and shall provide protection to prevent G: ICPROJECTIAdrportl Tower ProjectlATCT- CMGC contract2WPD.wpd Page 3 ~ ~ damage, injury or loss to (i) any persons; (ii) the Work, and all goods, products, materials, equipment and systems to be incorporated therein; and, (iii) other property at or adjacent to the Site. The CM/GC, its consultants, trade contractors, subcontractors and suppliers, and their employees and agents shall (i) conduct all construction operations so as to insure complete safety of all persons who and property which maybe on or adjacent to the site or the Work, (ii) comply with all OSHA construction industry safety and health standards applicable to the site and the Work, and (iii) comply with all state and local construction industry safety and health standards applicable to the site and the Work. 1.1.17. The organization of the specifications into divisions, sections, and articles, and the arrangement of drawings shall not control the CM/GC in dividing the Work among subcontractors or in establishing the extent of Work to be performed by any trade. ARTICLE 2 -DEFINITIONS 2.1.1. "Agreement" or "Contract" means this written agreement. 2.1.2. "Engineer /architect" means William E. Payne & Associates or such other professional engineer /architect, or group or association or professional corporation of such approved professional engineer /architects, engineers and consultants, who have contracted with The County to accomplish the engineer /architectural and engineering services necessary to the Work. 2.1.3. "Change Order" means a written order to the CM/GC signed by the Board of County Commissioners or its authorized agent and the CM/GC, issued after the execution of this Agreement, authorizing a change in the Work, the method or manner of performance, or an adjustment in the Guaranteed Maximum Price, Design Phase Services, Construction Phase Services, or the Contract Time. 2.1.4. "Colorado Labor" means as provided in C.R.S. §8-17-101 et seq. as amended. 2.1.5. "Completion of the Work" means the first date when all of the following have occurred: the date certified by the Engineer /architect when construction is completed in accordance with the Contract Documents, the date the local jurisdiction has issued a Certificate of Occupancy, and the date The County can fully occupy or utilize the Work for the purpose for which it is intended. 2.1.6. "Construction Documents" means the drawings and specifications that set forth in detail requirements for the construction of the Project. 2. 1.7. "Contract Documents" means this Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Notices to Proceed, Change Orders, addenda to the RFP issued prior to execution of this Agreement, if any, and other documents identified in this Agreement. These form the contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. The Contract Documents include the G: ICPROJECT~AirportlTower ProjectlATCT- CMGC contract2WPD.wpd Page 4 exhibits attached hereto and are in order of priority. If there are any conflicting terms and conditions of the Contract Documents, the higher listed document shall control: Exhibit A: Agreement Exhibit B: Work Scope Letter Exhibit C: Plans Exhibit D: Specifications Exhibit E: Soils Report Exhibit F: CM/GC Fee Structure and Cost Allocations (par. 3.2.1) Exhibit G: Project Work Plan (par. 3.2.11) Exhibit H: General Conditions/General Requirements (par. 2.1.13) Exhibit I: Notice To Proceed (par. 6.1.4) Exhibit J: Contract Time (par. 2.1.8) Exhibit K: Approved Rates (par. 9.4.2.2, 9.4.2.8, 9.4.4.4) Exhibit L: Standard Federal Assurances 2.1.8. "Contract Time" means the period of time allotted in the Contract Documents for Completion of the Work as defined in paragraph 2.1.5, including authorized adjustments thereto. The Contract Time shall be agreed upon by The County and the CNUGC as part of the development of the Contract Documents. The CM/GC hereby agrees that in no case shall the Contract Time exceed eight (8) months. The actual contract time from construction time to finish shall be determined per Article 6.3.1 and shall be included as an exhibit (Exhibit "J") to this Contract. 2.1.9. "Cost" means the total cost of labor, materials, provisions, supplies, expenses, bonds, equipment rentals, equipment purchases, insurance, supervision, clerical, and accounting services, the value of the use of equipment, and reasonable estimates of other administrative costs which may be reasonably apportioned to this Project to complete it in accordance with the Contract. 2.1.10. "Day" means calendar day unless specifically designated otherwise. 2.1.11. "Design Development" means: in reference to a phase of the Project, it means the phase in which the engineer /architect and other Owner's consultants prepare the design development documents, from the approved schematic design, for submission to the Owner for its approval; in reference to documents, it means the drawings and other documents that fix and describe the size and character of the entire project as to engineer /architectural, structural, mechanical, and electrical systems, materials and such other elements of the Project as maybe appropriate. 2.1.12. "Drawings" means all drawings and specifications reviewed and accepted by The County (and approved by the Town of Gypsum Building Department if required by applicable regulations) which have been prepared by the Engineer /architect showing the Work to be done. 2.1.13. "General Conditions/General Requirements" means those items set forth in the RFP and in the CM/GC's proposal, and specifically as set forth on Exhibit "F" hereto. G:ICPROJEC7L4irportlTower ProjectlATCT- CMGC contract2Yi'PD.wpd Page 5 ~ ~ 2.1.14. "Guaranteed Maximum Price" and "GMP" mean that maximum amount for which the Work shall be accomplished and it shall be computed by the CM/GC in accordance with the provisions of Article 9.4. hereinafter. The GMP shall include the contingencies set forth in Article 3.2.7. 2.1.1 S. "Notice" means a communication in writing from either contracting party to the other by means of either delivery by hand or mailed by certified mail, postage prepaid, return receipt requested, in which event the return receipt shall be deemed prima facie evidence of delivery on the date as shown on the return receipt if such delivery was made to the address and person(s) as named below: The County: Board of County Commissioners P.O. Box 8S0 Eagle, Colorado 81631 with a copy to: Director of Facilities Management Eagle County Facilities Management Department P.O. BOX 8S0 Eagle, Colorado 81631 and a copy to: Eagle County Attorney P.O. Box 8S0 Eagle, Colorado 81631 CM/GC: Clark Atkinson Shaw Construction, LLC 760 Horizon Drive Grand Junction, CO 81506 Wherever in this section notice is required to be given to more than one person on behalf of a party, notice is not deemed Qiven unless given to all such persons. The addresses for notice maybe changed by either party by a written notice given to the other party. 2.1.16. The "Project" means the total construction of which the Work performed under the Contract Documents is a part, and may include construction by The County or by separate Contractors. 2.1.17. "Project Manager" means the individual appointed by The County to act as the owner's representative. 2.1.18. "Subcontractor" means a person, firm, or corporation supplying labor and materials, or only labor, for the Work, under separate contract or agreement with the CNUGC. 2.1.19. "Supplier" means any manufacturer, fabricator, distributor, material-man or vendor. G: ICPROJECTIAtrportl Tower ProjectlATCT- CMGC contractl WPD.wpd Page 6 ~! ~ 2.1.20. "Value Engineering" means the technical review and analysis of systems and materials being considered in the design to produce the greatest value for the least cost, the object of which is to achieve the optimum value for each construction dollar spent and keep the fiscal constraints set forth throughout the Contract Documents. 2.1.21. "Work" means the construction and services required by the Contract Documents, and includes all other labor, materials, equipment and services provided or to be provided by the CM/GC to fulfill the CM/GC's obligations. 2.1.22. "Working Group" is comprised of a representative from each of the Engineer /architect; the CM/GC; the Eagle County Administrator; the Eagle County Director of Facilities Management, the Project Manager; and such additional persons as maybe designated by the Project Manager from time to time. ARTICLE 3 - CM/GC'S SERVICES The CM/GC shall perform the following services under this Agreement in each of the phases described below. 3.1. COMPLETION WITHIN FISCAL AND TIlVIE CONSTRAINTS AND VALUE ENGINEERING 3.1.1. The CM/GC expressly recognizes that this Project must be completed within the time and fiscal constraints as set forth throughout this Agreement. The CM/GC further represents to The County that, by executing this Agreement, it has been informed and has reviewed: the goals of the Project; the design of the Engineer /architect performed to date for the Project; the time schedule as well as fiscal constraints and contingencies of the Project; all of the Exhibits and documents attached to this Agreement, and incorporated herein by reference; and, all of the services to be provided by the CM/GC pursuant to the Contract Documents. Based upon this review and analysis and recognizing that the contract for design services is between The County and the Engineer / architect, the CM/GC nonetheless represents to The County that it will provide all of the necessary services and perform all of the Work within the requirements of the Contract Documents. 3.1.2. To accomplish the objectives set forth in paragraph 3.1.1., the CM/GC shall provide consultation throughout the Design Service Phase and Construction Service Phase including but not limited to the furnishing of all necessary Value Engineering services. All communications between the CM/GC and representatives of other parties shall be communicated to the Project Manager. In cooperation with the Engineer /architect and County, the CNI/GC shall: Meeting Attendance -Attend regularly scheduled meetings with the Engineer / architect during the Design Development phase to advise on site use and G:ICPROJECTIAirportlTower ProjectlATCT- CMGC contract2YVPD.wpd Page 7 C~`~ improvements, selection of materials, building systems and equipment. Provide recommendations on construction feasibility, availability of materials and labor, time requirements for installation and construction and factors related to cost including costs of alternative designs or materials, preliminary budgets and possible economies. Meet regularly with the Working Group to discuss progress, present material and information and respond to questions regarding the Project. The CM/GC will be responsible for submitting to County and the Engineer /architect, within five working days, the minutes of all meetings during the construction phase. Corrections shall be made by the Engineer /architect and submitted to the CM/GC within two days of receipt of the minutes. The CM/GC shall maintain the minutes and suggested modifications in chronological order in a three-hole punch binder. 2. Scheduling - Develop a Project Time Schedule that coordinates and integrates the Engineer /architect design efforts with construction schedules. Update the Project Time Schedule incorporating a detailed schedule (showing milestones and the critical path) for the construction operations of the project, including realistic activity sequences and durations, allocation of labor and materials processing of shop lead-time procurement. Project Construction Budget -Review the project budget as soon as major program requirements have been identified and update budget periodically. Prepare an estimate based on a quantity survey of drawings and specifications at the end of the Design Development for approval by The County as the Project Construction Budget. Update and refine this estimate a,s the development of the drawings and specifications proceeds and advise The County and the Engineer /architect if it appears that the Project Construction Budget will not be met and make recommendations for corrective action. In estimating Construction Cost and development of the Schedules of Values, the CM/GC shall include a bidding contingency and a construction contingency per Section 3.2.7. The estimated cost of the Work shall be established based upon schematic design and then design development drawings and preliminary specifications . The Cost of the Work shall be itemized in a schedule of values in CAI format and reflect contemplated subcontract distribution of CAI Divisions. If subsequent estimates of Construction Cost andlor bids received for the work cause the anticipated cost of the Work to exceed the Guaranteed Maximum Price, and there is no increase in the scope of Work, the CM/GC shall, at no additional cost to The County, provide additional Value Engineering services to bring the bid within the Guaranteed Maximum Price. 4. Value Engineering -Provide technical review and analysis of alternative designs, systems and materials being considered in the design to produce the greatest value for the least cost. Provide cost estimates of the alternatives evaluated. Evaluate the G: ICPROJECTIAirportlTower ProjectlATCT- CMGC corstraci2WPD.wpd Page 8 V v alternatives on the basis of costs, time schedules, availability of labor and materials, construction feasibility, warranties and projected life expectancy. 5. Coordination of Contract Documents -Review the drawings and specifications at Design Development, recommending alternative solutions whenever design details affect construction feasibility of schedules. 6. Construction Planning -Recommend for purchase and expedite the procurement of long-lead items to ensure their delivery by the required dates per the CPM schedule. 7. Work Allotment -Make recommendations to the Engineer /architect regarding the division of work in the plans and specifications to include scope of work to facilitate the bidding and awarding of subcontracts, taking into consideration such factors as time of performance, availability of labor, overlapping trade jurisdictions, provisions for temporary facilities and so forth. 8. Plan Review -Review plans and specifications with the Engineer /architect and County to resolve areas of conflict, for coordination, accuracy and completeness of the plans and specifications at the end of Design Development drawings and construction documents. 9. Labor -Analyze the types, quantity and availability of appropriate categories of labor required for various phases of the Project. 10. Bid Process -Prepare pre-qualification criteria for bidders and develop subcontractor interest in the project. Establish bidding schedules, pre-qualify subcontractors and conduct pre-bid conferences to familiarize bidders with bidding documents, management techniques and any special systems, materials or methods. Receive competitive bids, to be reviewed "open-book" with the owner and the engineer / architect when requested, on the Work from various subcontractors, analyze the bids and award the subcontracts. 11. Pre-Construction Conferences -Conduct pre-construction conferences with successful subcontractors. 12. Project Control -Monitor the Work of the subcontractors and coordinate the Work with the activities and responsibilities of The County and the Engineer /architect to complete the Project in accordance with the construction documents and The County's objectives of cost, time and quality. 13. Organization -Establish on-site organization and lines of authority in order to carry out the overall plans of the Construction Documents. G: ICPROJECTvlirportlTower ProjectlATCT- CMGC controct2YVPD.wpd Page 9 i • 14. Communication -Establish procedures for coordination among The County, Engineer /architect, subcontractors and CM/GC with respect to all aspects of the Project and implement such procedures. 15. Scheduling -Schedule and conduct weekly progress meetings at which subcontractors, County, Engineer /architect and CM/GC can discuss jointly such matters a,s progress, problems and scheduling. Provide a detailed schedule for the operation of the CM/GC and subcontractors on the project, including realistic activity sequences and durations, allocation of labor and materials, processing of shop drawings and samples and delivery of products requiring long lead-time procurement. 16. Monitoring -Provide regular monitoring of the schedule a.s construction progresses. Identify potential variances with the scheduled Completion Dates. Review schedule for Work not started or incomplete and recommend to the Engineer /architect and subcontractors adjustments in the schedule to meet the Completion Date. Provide summary reports of such monitoring and document all changes in schedule. Determine the adequacy of the subcontractors' personnel and equipment and the availability of materials and supplies to meet the schedule. 17. Cost Control -Develop and monitor an effective system of project cost control, showing actual costs for activities in progress and estimates for uncompleted tasks. Incorporate approved changes as they occur and develop cash flow reports and forecasts as needed or requested by the Engineer /architect. 18. Change Orders -Develop and implement a system for review and processing Change Orders. Recommend necessary or desirable changes to the Engineer /architect, review requests for changes, submit recommendations to the Engineer /architect and assist in negotiating Change Orders. The CM/GC will not be allowed to mark up any subcontractor change order, unless the provision of §9.3.1. are triggered. 19. County Consultants - If required, assist The County in selecting and retaining professional services of a surveyor, testing laboratories and special consultants and coordinate these services. 20. Staffing -The CM/GC shall keep on the Project, during its progress, a competent superintendent and any necessary assistants, all satisfactory to the Project Manager and the Engineer /architect, to coordinate and provide general direction of the work and progress of the subcontractors on the Project. The CM/GC superintendent shall not be changed except with the consent of The County's Project Manager and the Engineer /architect. The CM/GC Project Superintendent shall represent the CM/GC in his/her absence and all direction given to him/her shall be as binding a.s if given to the CM/GC. A Project Manager shall be assigned for facilitating the entire project. G: ICPROJEC71AirportlTower ProJectIATCT- CMGC contract2YVPD.wpd Page 10 • The County and the Engineer /architect shall not be responsible for the acts or omissions of the CM/GC. The CM/GC shall provide full-time, qualified and efficient supervision of the Work, using their best skill and attention. The CM/GC shall carefully study and compare all drawings, specifications and other instructions and shall at once report to the Project Manager and the Engineer /architect any error, inconsistency or omission.which it may discover. The CM/GC shall inspect the Work of the subcontractors at all stages and at final completion and shall take reasonable precautions and care to guard The County against defects and deficiencies in such Work. The CM/GC shall be responsible to The County for the acts and omissions of all its employees and agents and all other persons performing any of the Work under a contract with The County, for which the CM/GC has supervisory or inspection responsibility hereunder. The CM/GC shall also have responsibility for coordinating the work of and assuring contract compliance by its agents, employees and subcontractors. The superintendent shall see that the Work is carried out in accordance with the Contract Documents and in a thorough and workmanlike manner in every respect, and shall comply with all applicable federal, state and local building, fire and life safety codes. The CM/GC shall establish all lines, levels and marks necessary to facilitate the operations of all concerned in the subcontractor's Work. The CM/GC shall lay out the Work in a manner compliant with the Construction Documents, making permanent records of all lines and levels required for excavation, grading and foundation and for all other parts of the Work. The CM/GC shall, together with the Engineer /architect, certify the proper completion of the various stages of construction. The CM/GC shall be responsible for all construction means, methods, techniques, sequences and procedures as well as all necessary inspections, and to carry out the Work in accordance with the Contract Documents. 21. Safety -The CM/GC shall be responsible for the safety of persons and property and for compliance with all federal, state and local statutes rules, regulations and orders applicable to the conduct of the Work. 22. Design Interpretations -Refer all questions relative to interpretation of design intent to the Engineer /architect. 23. Shop Drawings and Samples - In collaboration with the Engineer /architect, establish and implement procedures for expediting the processing and approval of shop drawings and samples. 24. Reports and Project Site Documents -Record the progress of the Project in a daily log available to The County, Project Manager and the Engineer /architect. Including information on the subcontractors' Work, the actual cost vs. budgeted cost, actual construction point vs. projected schedule point, reasons for any discrepancies, the G: ICPROJECTIAirportlTower ProjectlATCT- CMGC contract2WPD.wpd Page 11 • • percentage of completion and the corrective actions to obtain compliance with time and cost schedules. 25. Record Maintenance -Maintain at the Project site, on a current basis, records of all necessary contracts, shop drawings, samples, purchases; materials, equipment, maintenance and operating manuals and instructions and any other documents and revisions thereto which arise out of the Contract or the Work. Obtain data from subcontractors and maintain a current set of record drawings, specifications and operating manuals. At the completion of the Project, submit all such documents to the Engineer /architect for delivery to the Owner along with one complete set of'As Built." 26. Project Completion -Determine Project Completion of designated portions of the Work and prepare for the Engineer / architect a list of incomplete or unsatisfactory items and a schedule for their completion. 27. Start-Up -With The County's maintenance personnel and/or testing personnel and the Engineer /architect, direct the checkout of utilities, operations systems and equipment for readiness and assist in their initial start-up and testing by the subcontractors. 28. Final Inspection -Provide written notice to The County and Engineer /architect that the Work is ready for final inspection. Secure and transmit to the Engineer /architect required warranties, certificates, releases, bonds and waivers. Turn over to The County all keys and maintenance stock. 29. Warranty -The CM/GC shall, during the one-year warranty period established in Article 18, ensure that Work which proves defective or deficient during such time is corrected either by the subcontractor or other means as shall be required, without cost to The County except as provided in this paragraph. The CM/GC shall establish within the GMP an agreed upon sum that CM/GC may use in execution of warranty work. At the conclusion of the warranty period all funds not expended by the CM/GC shall belong to The County. Costs of warranty work in excess of the agreed line item will be borne by the CM/GC. 3.1.3. The County shall participate in the formulation and evaluation of alternatives in the Value Engineering activity and the Board of County Commissioners shall have final approval authority. DESIGN SERVICES PHASE 3.2.1. The CM/GC shall perform those items designated as Required Services as set forth in Article 3.1.2 and the CM/GC Fee Structure and Cost Allocations set forth in Exhibit "F", attached hereto and incorporated herein. In addition, and not in limitation, the CM/GC shall also perform the other Design Services designated in this Article 3 together with such other services as are normally G: ICPROJECTiAirportlTower ProjectlATCT- CMGC coratract2WPD.wpd Page 12 ~~ • ~ and customarily provided by a CM/GC and necessary to satisfactorily complete the Project as outlined in this Agreement. 3.2.2. Consultation During Project Development: The CM/GC shall review, with the Engineer / architect, at Design Development; advise on site use and improvements, selection of materials, building systems and equipment; and provide recommendations on construction feasibility, availability of materials and labor, local construction activity as it relates to schedules, and tie requirements for installation and construction. 3.2.3. Scheduling: The CM/GC shall develop a Time Schedule based upon the Engineer / architect's design efforts and design schedule, and which coordinate and integrate therewith. 3.2.4. Meeting Attendance: The CM/GC shall attend regular meetings with the Working Group and such additional meetings as the Project Manager may request. All meetings shall be mutually agreed upon by the Engineer /architect, the Project Manager and the CM/GC. 3.2.5. Cost Management: The CM/GC shall implement a cost forecasting, monitoring and control program for the Project. Cost analyses shall include analyses of all trades and Project components making a contribution to total Project costs. The program shall include development of a Project cost model, monitoring the design process and periodic cost reviews to identify variances from the cost model. 3.2.6. Contingency Management: It is the desire of The County to incorporate as many alternate bid items into the Project as possible using these funds. All parties recognize that funds may become available for the alternates through procurement at less than the CM/GC's estimated cost or through savings of the unexpended portion of the bidding contingency. 3.2.7. The CM/GC's contingency shall be as follows: 1. The contingency for bidding (bidding contingency) shall be equal to five percent (5%) of the Guaranteed Maximum Price (GMP); and 2. After all bids have been received, the contingency for construction of the work (construction contingency) shall be equal to three percent (3%) of the initial GMP. The contingencies shall form a reserve available only for (a) the absorption of costs associated with elements of Work which could not reasonably have been anticipated to be included in the Cost of the Work based upon or implied by the Contract Documents; (b) a bid reserve to absorb differences between trade contract estimates and actual subcontract/supplierbfds received; and (c) increase in scope due to unknown and unforeseen factors which may adversely affect costs. The CM/GC warrants and guarantees that all Work will be completed below the Guaranteed Maximum Price and that the GMP will include the above contingencies. G:ICPROJECTIAirportlTower ProjectlATCT- CMGC contract2WPD.wpd Page 13 `~ • • 3.2.8. At the conclusion of bidding, all differences between the CM/GC's estimated cost of the Work (exclusive of contingency) versus the actual cost thereof as determined by bidding shall be promptly calculated and totaled. If the total of all of the bids exceed the CM/GC's guaranteed maximum price, The County reserves the right to: require the CM/GC to rebid each or all of the packages if less than three bids aze received; proceed with awazd of contracts and authorize the use of the total Bidding Contingencies identified in pazagraph 3.2.7.1. to cover any overrun; or, in the alternative, require the CM/GC to perform additional Value Engineering services to evaluate options. Any remaining funds shall be handled in accordance with Article 3.2.9. 3.2.9. Upon making the preceding determinations, any and all savings achieved through the awards with all unexpended sums remaining in the Bidding Contingencies shall forthwith accrue to The County to be applied by The County, in its sole and absolute discretion, to the inclusion of desired alternates thereby increasing the Work to be performed by the CM/GC, and/or make a corresponding reduction to the Guaranteed Maximum Price. 3.2.10. The Construction Contingency shall be used to cover any overruns. Expenditures from the Construction Contingency for any matters or Work activities shall be explained and accurately reported monthly to The County. 3.2.11. Construction Estimates: The CM/GC shall prepare an estimate of Construction Cost prior to commencement of the Design Development Phase, and shall update periodically pursuant to the Project Work Plan set forth in Exhibit "G", attached hereto and incorporated herein; or a.s requested by the Engineer / acchitect. This estimate shall be a quantity take-off cost estimate based on size, building systems, assemblies, components, etc., and updated periodically. During the Design Development Phase, prepaze a final cost estimate below the Guazanteed Maximum Price and update periodically. All estimates of Construction Cost shall make allowance for bidding and price escalation. During the Construction Documents Phase continually monitor the cost estimates and develop a cost estimate to assure that the Work remains within the applicable Project Budget or Guaranteed Maximum Price, whichever is applicable. The County is responsible for managing the Architect to the budget. Estimates shall be independently prepazed but in coordination with the Engineer /architect and shall be based on quantitative take-offs whenever possible and shall be substantiated in sufficient depth and organization to be used in preparing budgets based on: sub-trades, combinations of sub-trades and building systems. During the preparation of cost estimates, the CM/GC shall notify the Engineer / acchitect if it appears that the estimate will exceed the Project Budget or Guazanteed Maximum Price, as maybe applicable, satisfactorily demonstrate the accuracy of its estimate in such detail as shall be reasonably required by the Engineer /architect, and make reasonable recommendations for corrective action consistent with the Project Budget or Guazanteed Maximum Price, a,s maybe applicable. The CM/GC shall review cost estimates with the Engineer / acchitect for approval. G:ICPROJEC71AirportlTowerProjecalATCT-CMGCcontract2Yi'PD.wpd Page 14 C~ 3.2.12. Supply Construction Documents: The Engineer /architect, consistent with The County's contract, shall furnish the C1Vl/GC a sufficient quantity of Construction Documents required for the Design Phase Services. 3.2.13. The CM/GC shall review the drawings and specifications as they are being prepared, recommending alternative solutions whenever design details affect construction feasibility, schedules or cost, however, nothing contained in this paragraph shall be construed to require the CM/GC to provide engineer /architectural or other design services. 3.2.14. The CM/GC shall make recommendations to the Engineer /architect regarding the division of Work in the drawings and specifications to facilitate the bidding and awarding of subcontracts, allowing for phased construction and funding, if applicable, and taking into consideration such factors as time ofperfonmance, availability of labor, overlapping trade jurisdictions, provisions fortemporary facilities, etc. 3.2.15. The CM/GC shall review drawings and specifications with the Engineer /architect to: reduce areas of conflict, overlapping trade jurisdictions, and overlapping in the Work to be performed by the various subcontractors and confirm that all Work has been included. 3.2.16. Purchasing: The CM/GC shall investigate and recommend to the Engineer /architect materials and equipment that could be purchased, consider long lead time procurement and mass purchasing power in making such recommendations, recommend a schedule for such purchases after coordination with the Engineer /architect in the schedule for preparation of Contract Documents and expedite and coordinate delivery of these purchases to facilitate their delivery by the required dates. 3.2.17. Bidding: The CM/GC shall prepare pre-qualification criteria for bidders and develop subcontractor interest in the Proj ect; establish bidding schedules; advertise for bids; and conduct pre-bid conferences to familiarize bidders with the bidding documents and management techniques and.with any special systems, materials, or methods. 3.2.18. The C1VI/GC shall receive bids as advertised; prepare bid analyses; and advise Engineer / architect of successful bidders; and, conduct pre-award conferences with successful bidders. 3.2.19. The CM/GC shall provide the requirements and assignment of responsibilities for safety precautions and programs as required for the execution of the Work, temporary project facilities and for equipment, materials and services for common use of subcontractors and verify that all are included in the Contract Documents. G:ICPROJECT1AirponlTowerProjectlATCT-CMGCcontract2WPD.wpd Page 15 CONSTRUCTION SERVICES PHASE 3.3. CONTROL OF THE WORK 3.3.1. The CM/GC shall supervise and direct the work of its subcontractors and coordinate the Work with the activities and responsibilities of The County and Engineer /architect to complete the Project in accordance with The County's objectives of cost, time, and quality. 3.3.2. The CM/GC shall establish on-site organization and lines of authority in order to carry out the overall plans of the Construction Documents. 3.3.3. The CM/GC shall establish procedures for coordination between the Engineer /architect and subcontractors with respect to all aspects of the Work and implement such procedures. 3.3.4. The CM/GC shall schedule and conduct progress meetings at which the Project Manager, Engineer /architect, and CM/GC can discuss jointly such matters as progress and problems. 3.4. SUPERVISION AND CONSTRUCTION PROCEDURES 3.4.1. The CM/GC shall supervise and direct the Work, using the CM/GC's best skills and attention. The CM/GC shall be solely responsible for all construction means, methods, techniques, sequences, and procedures and shall coordinate all portions of the Work under the Contract Documents. 3.4.2. The CM/GC shall be responsible to The County for the acts and omissions of the CM/GC's employees, subcontractors of all tiers, their agents and employees, and any other persons performing any of the Work or furnishing materials under a contract with the CM/GC. 3.4.3. The CM/GC shall employ a competent superintendent and all other key personnel and necessary assistants as designated in the Request For Proposals (RFP) who shall be in attendance at the Project site during the progress of the Work. The CM/GC shall employ such additional supervision and clerical support as maybe reasonably required and appropriate to the stage of construction. The CM/GC's superintendent, project manager and other key personnel shall not be changed except with the consent of the Engineer /architect and Project Manager. The superintendent shall represent the CM/GC and all directions or communications given by the Engineer /architect to the superintendent shall be binding on the CM/GC. All communications shall be confirmed in writing. 3.4.4. The CM/GC shall at all times enforce strict discipline and good order among the CM/GC's employees and shall not employ on the Work any unfit person or anyone not skilled in the task assigned them. G:ICPROJECTIAirporrlTowerProjecrlATCT-CMGCcontract2WPD.wpd Page 16 C~ 3.5 SCHEDULE AND COORDINATION 3.5.1. The CM/GC shall schedule and coordinate the work of all of its subcontractors on the Project including their use of the site. The CM/GC shall keep the subcontractors informed of the Project construction schedule to enable the subcontractors to plan and perform the work properly. 3.5.2. The CM/GC, immediately after all bids are awarded, shall prepare and submit a Construction Schedule for the Work which shall provide for the expeditious and practicable execution of the Work. The schedule shall be consistent with previously issued schedules, not exceed time limits current under the Contract Documents and shall be related to the entire Project to the extent required by the Contract Documents. The schedule for the performance of the Work shall be a Critical Path Method system with reasonable detail including atime-scaled network and computer printout. 3.5.3. The CM/GC shall prepare and keep current, for the Engineer /architect's approval, a time schedule of submittals which is incorporated in the CM/GC's construction schedule and shall allow the Engineer / architect a reasonable time to review such submittals. 3.5.4. The CM/GC's construction schedules and budgets shall be revised as required. Additionally CM/GC shall provide a two week look ahead schedule at each regularly scheduled meeting of the Working Group. In addition to the monthly update, the CM/GC's schedules shall also be revised at appropriate intervals as required by the conditions of the Work and Project with a copy submitted to the Project Manager and Engineer /architect. 3.5.5. The CM/GC shall perform the Work within the identified times of the most recent schedule and consistent with the established Contract Time. 3.6. COST CONTROL 3.6.1. The CM/GC shall develop and monitor an effective system of Project cost control; incorporate approved changes as they occur; develop cash flow reports and forecasts as required; identify any variance between actual and budgeted costs within Project Budgets, and, consistent with paragraph 3.2.11., advise the Project Manager and Engineer /architect whenever projected costs are expected to vary from Project Budgets. 3.6.2. The CM/GC shall maintain cost accounting records on the Work performed under actual costs for labor and material. The CM/GC shall afford The County access to these records at CMGC's home office, at any reasonable time and preserve them for a period of three (3) years after final payment. 3.6.3. CM/GC shall provide The County with monthly accounting reports including detailed pay application, project change log, and accounting of the contingency. G:ICPROJECTIAirportlTowerProjectlATCT-CMGCcontractlWPD.wpd Page 17 3.7. AMENDMENTS AND CHANGE ORDERS 3.7.1. The CM/GC shall develop and implement a system for the preparation and processing of Change Orders and recommend necessary or desirable changes to the Engineer /architect. 3.8. PERMITS, FEES AND REGULATIONS 3.8.1. The CM/GC shall secure all permits, licenses, and inspections necessary for the proper execution and completion of the Work which are legally required at the time the Guaranteed Maximum Price is provided to The County. The cost of such permits shall be paid for by The County. 3.8.2. The CM/GC shall give all notices and comply with all laws, ordinances, rules, regulations, and lawful orders of any public authority bearing on the performance of the Work. 3.9. SALES AND USE TAXES 3.9.1. The Project is being constructed by The County and is exempt from local sales and use taxes. The CM/GC shall take any and all appropriate action to obtain such exemption or refunds of taxes paid and shall not charge The County for any such taxes. 3.9.2. In accordance with paragraph 3.10.1., the CM/GC shall require each of its subcontractors of all tiers to comply with the requirements of paragraphs 3.10.1 and to maintain such records and furnish the CM/GC with such data as may be necessary to obtain refunds of the taxes paid by such subcontractors. 3.9.4. No State Sales and Use Taxes are to be paid on material to be used in the Work. On application by the purchaser or seller, the Department of Revenue shall issue to the CM/GC or its subcontractors a certificate or certificates of exemptions per Title 39-26-114 and 203 et seq. C.R.S., a.s amended. 3.9.5. The CM/GC shall exclude the amount of any applicable Federal excise or manufacturer's taxes from its proposal. The County will furnish the CM/GC, on its request, the necessary exemption certificates to aid the CM/GC in the recovery of any such Federal taxes paid by the CM/GC for materials and equipment required in the execution of the Work or to support the CM/GC's failure to pay such taxes, as the case maybe. 3.10. COUNTY CONSULTANTS 3.10.1. If requested in writing by The County, the CM/GC shall assist the Engineer /architect in selecting and retaining the professional services of a surveyor and special consultants, and coordinate these services. CM/GC will not pay for services unless added by proper change order. G:ICPROJEC71AirportlTowerProjectlATCT-CMGCcontract2WPD.wpd Page 18 • 3.11. LABOR AND MATERIALS 3.11.1. Unless otherwise provided in the Contract Documents, the CM/GC shall provide and pay for all labor, materials, equipment, tools, construction equipment and machinery, insurance, water, heat, utilities, transportation, construction easements, and other facilities and services necessary for the proper execution and completion of the Work, whether temporary or permanent, and whether or not incorporated or to be incorporated in the Work. 3.12. ROYALTIES AND PATENTS 3.12.1. The CM/GC shall pay all royalties and license fees. The CM/GC shall defend all suits or claims for infringement of any patent rights, and shall hold The County, its officers, agents and employees and Engineer /architect harmless from loss on account thereof. 3.13. DOCUMENTS AND SAMPLES AT THE SITE 3.13.1. The CM/GC shall: 1. maintain at the Project site on a current basis, one record copy of all drawings, specifications, Addenda, Amendments, Change Orders, and other Modifications, in good order and currently marked to record all changes made during construction, and approved Shop Drawings, Product Data, and Samples. The record copies shall be documented within fourteen (14) days from the date performed in the field and be available to the Engineer /architect and the Project Manager. 2. maintain at the Project site on a current basis a log to recordreceipt of all items set forth in paragraph 3.14.1.1. so as to record and permit the determination of the most current copies; and 3. advise the Project Manager on a current basis of all changes in the Work made during construction. 3.14. LAYOUT OF WORK -The CM/GC shall establish all lines, levels and marks necessary to facilitate the operations of all concerned in such C1VI/GC's Work. The CM/GC shall lay out the Work making permanent records of all lines and levels required for excavation, grading and foundations and for all other parts of the Work. 3.15. USE OF SITE -The CM/GC shall confine all operations at the site to areas permitted by law, ordinances, permits, and the Contract Documents, and shall not unreasonably encumber the site with any materials or equipment. G:ICPROJECTIAirportlTowerProjectlATCT-CMGCcontract2WPD.wpd Page 19 G7~ • 3.16. CUTTING AND PATCHING OF WORK 3.16.1. The CM/GC shall be responsible for all cutting, fitting, or patching that may be required to complete the Work or to make its several parts fit together properly. 3.16.2. The CM/GC shall not damage or endanger any portion of the Work or the work of The County or any separate contractors by cutting, patching, or otherwise altering any work, or by excavation. The CM/GC shall not cut or otherwise alter the work of The County or any separate contractor except with the written consent of The County and of such other separate contractor. No required consents shall be unreasonably withheld. 3.17. CLEANING UP -The CM/GC shall keep the buildings and premises free from all surplus material, waste material, dirt and rubbish caused by its performance of the Work, including but not limited to its subcontractors of all tiers and suppliers, and at the completion of the Work, shall remove all such surplus material, waste material, dirt and rubbish, as well as all tools, equipment and scaffolding and shall leave the Work thoroughly clean unless more exact requirements are specified elsewhere in the Contract Documents. The CM/GC shall remove all spots from the floors, walls, ceilings, windows and doors, and, where necessary, refit windows, doors and cabinet work. The CM/GC shall also replace all broken and scratched glass and clean all window glass and all plumbing fixtures, also all broken and discolored concrete shall be replaced. The CM/GC shall make such minor repairs and alterations in respect to its Work as maybe necessary to make the buildings and premises ready for occupancy. 3.18. PROTECTION OF PERSONS AND PROPERTY 3.18.1. CM/GC shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. 3.18.2. The CM/GC shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury, or loss to: 1. All employees on the Work and all other persons who maybe affected thereby; 2. All the Work and all materials and equipment to be incorporated therein, whether in storage on or off the site, under the care, custody or control of the CM/GC or any of the CM/GC's subcontractors of all tiers. 3. Other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, and utilities not designated for removal, relocation, or replacement in the course of construction; and 4. The work of The County or other separate Contractors, provided, however, that the CM/GC shall not be responsible for furnishing the safety programs or direct protection of the work of The County or other separate contractors. G: I CPROJECTiAirportlTower ProjectlATCT- CMGC contractZWPD.wpd Page 20 vO 3.18.3. The CM/GC shall give all notices and comply with all applicable laws, ordinances, roles, regulations, and lawful orders of any public authority bearing on the safety of persons or property or their protection from damage, injury, or loss and further, shall cooperate and keep the Engineer / architect and other separate Contractors informed of all of the CM/GC's precautions for safety and protection of the Work. 3.18.4. The CM/GC shall erect and maintain, as required by existing conditions and the progress of the work, all reasonable standards for safety and protection, including but not limited to, posting danger signs warning against the hazards created by such features of construction as protruding nails, rebar, hoists, well holes, elevator hatchways, scaffolding, window openings, stairways and falling materials, promulgating safety regulations, installing fence, and notifying owners and users of adjacent utilities. 3.18.5. When the use or storage of explosives or other hazardous materials or equipment is necessary for the execution of the Work, the CM/GC shall exercise the utmost care and shall carry on such activities under the supervision of properly qualified personnel. 3.18.6. The C1VI/GC shall provide all necessary bracing, shoring, and tying of all decks, framing and structures or structural elements to prevent the failure of materials or temporary facilities required in the execution of the Work which could result in damage to property or the injury or death of persons; take all precautions necessary to insure that no part of any structure of any description is loaded beyond its carrying capacity or with anything that will endanger its safety at any time during the execution of the Work; and reasonably provide for the adequacy and safety of all scaffolding and hoisting equipment. The CM/GC shall not permit open fires within any building enclosure. The CM/GC shall construct and maintain all necessary temporary drainage and do all pumping necessary to keep excavations, floors, pits, and trenches free of water. The CM/GC shall be liable for any errors or omissions related to means, methods, techniques, sequences, or procedures on the part of the CM/GC or any subcontractors of any tier and its consultants. CM/GC shall not be responsible for errors or omissions of The County, Architect or agents of either. 3.18.7. The CM/GC shall take due precautions when obstructing sidewalks, streets or other public ways in any manner, and shall provide, erect and maintain barricades, temporary walkways, roadways, trench covers, colored lights or danger signals and any other devices necessary to assure the safe passage of pedestrians and automobiles. 3.18.8. The CM/GC shall promptly remedy all damage or loss to any property caused in whole or part by the CM/GC, any subcontractor of any tier, anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them maybe liable, and for which the CM/GC is responsible. 3.18.9. The CM/GC shall designate a responsible member of the CM/GC's organization at the site whose duty shall be the prevention of accidents. This person shall be the CM/GC's superintendent or other designated individual, however denoted. G:ICPROJEC71AirportlTowerProjectlATCT-CMGCcontract2WPD.wpd Page 21 3.18.10. In any emergency affecting the safety of persons or property the CM/GC shall act to prevent threatened damage, injury, or loss. 3.19. START-UP -The CM/GC, with The County's maintenance personnel and/or contracted testing personnel and the Engineer /architect, shall direct the commissioning of utilities, operations, systems and equipment for readiness and assist in their initial start-up and testing by the subcontractors of all tiers. 3.20. ACCESS TO WORK -The Engineer /architect, County, Project Manager and all other representatives of The County shall at all times have access to the Work wherever it is in preparation and progress. The CM/GC shall provide any necessary safety equipment, and safe and reasonable facilities for such access so that the Engineer /architect, Project Manager and County representatives may exercise their rights and perform their functions under the Contract Documents. Architects, Project Manager and representatives must check in to Field Office prior to accessing the facility. 3.21 NO RESPONSIBILITY FOR Engineer /architect -The CM/GC shall not be responsible for the failure of the Engineer /architect or its consultants to properly discharge its duties and responsibilities as set forth in the agreement between The County and Engineer /architect. ARTICLE 4 -DRAWINGS AND SPECIFICATIONS 4.1. OWNERSHIP AND USE OF DOCUMENTS -All drawings, specifications, and copies thereof furnished by The County are and shall remain the property of The County. They are to be used only with respect to this Project and are not to be used on any other project. With the exception of one contract set for each party to this Agreement, such documents are to be returned or suitably accounted for to The County on request at the completion of the Work. Submission or distribution to meet official regulatory requirements or for other purposes in connection with the Project is not to be construed as publication in derogation of The County's common law copyright or other reserved rights. 4.2. REVIEW OF THE CONTRACT DOCUMENTS 4.2.1. The CM/GC, its employees, consultants, experts, and subcontractors, if any, shall carefully study and compare the Contract Documents and shall at once report to the Engineer /architect any error, inconsistency, or omission that maybe discovered. The CM/GC shall perform no portion of the Work at any time without Contract Documents or, where required, approved drawings, specifications, instructions, Shop Drawings, Product Data, or Samples for such portion of the Work. 4.2.2. If the CM/GC observes that any of the Contract Documents are at variance with applicable laws, statutes, building codes, or regulations, in any respect, the CM/GC shall promptly notify the Engineer /architect in writing. G: ICPROJEC71AirportlTower ProjectlATCT- CMGC contract2YYPD.wpd Page 22 C~ • 4.2.3. If the CM/GC or any of its subcontractors of any tier performs any Work with actual knowledge or when it should have reasonably known that it is contrary to such laws, statutes, ordinances, building codes, and rules and regulations, and without such notice to the Engineer / architect, the CM/GC shall assume full responsibility therefor and shall bear all costs attributable thereto, 4.2.4. The CM/GC is required to fully review all of the drawings and/or specifications for compliance with all applicable codes with local jurisdictions. If the CM/GC observes that portions of the Contract Documents are at variance therewith, the CM/GC shall promptly notify the Engineer / architect and Owner in writing, and necessary changes shall be accomplished by appropriate Modification. 4.3. INTERPRETATIONS 4.3.1. The Engineer /architect will be the initial interpreter of the requirements of the Contract Documents and the initial judge of the performance thereunder. 4.3.2. The Engineer /architect will render interpretations consistent with the intent of, and reasonably inferable from the Contract Documents, consisting of additional instructions by means of drawings or otherwise necessary for the proper execution or progress of the Work, in accordance with agreed upon time limits and otherwise so as to cause no unreasonable delay. The CM/GC may make written request to the Engineer /architect of such interpretations and decisions. The CM/GC shall comply with the Engineer /architect's interpretation and such interpretation shall be incorporated into this Agreement, subject to County's review and final determination in those instances deemed necessary by The County. 4.4. SHOP DRAWINGS, PRODUCT DATA AND SAMPLES 4.4.1. Shop Drawings are drawings, diagrams, schedules, and other data specifically prepared for the work by the CM/GC or any subcontractor of any tier, manufacturer, supplier, or distributor, to illustrate some portion of the Work. 4.4.2. Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams, and other information furnished by the CM/GC to illustrate a material, product, or system for some portion of the Work. 4.4.3. Samples are physical examples which illustrate materials, equipment, or reasonable workmanship, and establish standards by which the Work will be judged. 4.4.4. The CM/GC shall prepare, review, approve, and submit to the Engineer /architect, and the Architect shall review, approve and return with reasonable promptness, and in such sequence as to cause no delay in the Work or in the Work of The County or any separate contractor, all Samples and four (4) copies of all Shop Drawings and Product Data required by the Contract Documents. All G:ICPROJECTIAirportlTowerProjectlATCT-CMGCcontract2WPD.wpd Page 23 • • drawings shall contain identifying nomenclature and each submittal shall be accompanied by a letter of transmittal identifying in detail all enclosures. 4.4.5. By preparing, approving, and submitting Shop Drawings, Product Data, and Samples, the CM/GC represents that the CM/GC has determined and verified all materials, field measurements, and field construction criteria related thereto, or will do so with reasonable promptness, and has checked and coordinated the information contained within such submittals with the requirements of the Work, the Project, the Contract Documents and prior approvals. 4.4.6. The CM/GC shall not be relieved of responsibility for any deviation from the requirements of the Contract Documents by the Engineer /architect's approval of Shop Drawings, Product Data, or Samples unless the CM/GC has specifically informed the Engineer /architect in writing of such deviation at the time of submission and the Engineer /architect has given written approval to the specific deviation. The CM/GC shall not be relieved from responsibility for errors or omissions in the Shop Drawings, Product Data, or Samples by the Engineer /architect's approval of them. 4.4.7. The CM/GC shall direct specific attention to revisions requested by the Engineer /architect, in writing or on re-submitted Shop Drawings, Product Data, or Samples. 4.4.8. No portion of the Work requiring submission of a Shop Drawing, Product Data, or Sample shall be commenced until the submittal has been approved in writing by the Engineer /architect as provided in paragraph 4.4.9. Work which is improperly fabricated, whether through incorrect Shop Drawings, faulty workmanship or faulty materials, will not be acceptable unless accepted in writing by the Engineer /architect. 4.4.9. The Engineer /architect will review and approve or take other appropriate action upon the CM/GC's submittals such as Shop Drawings, Product Data, and Samples, but only for conformance with the design concept of the Work and the information given in the Contract Documents. Such action shall be taken with reasonable promptness so as to cause no delay. 4.4.10. Portions of submittals or whole submittals maybe submitted via facsimile if also sent via first class mail. ARTICLE 5 -The County's Responsibilities 5.1.1. The County Project Manager shall furnish the CM/GC with detailed program requirements, the Project Budgets and the "Cost not to exceed" figure established for the Work. 5.1.2. The County will designate a representative (other than the Engineer /architect) authorized to act on its behalf with respect to the Project. The CM/GC acknowledges the authority and responsibility of the Board of County Commissioners and its subsequent delegation of authority to the Project Manager, and consents to such changes and delegation. G: I CPROJECTiAirportl Tower ProjectlATCT- CMGC contract2WPD.wpd Page 24 5.1.3. The County shall retain anEngineer /architect for preparation of the design and Construction Documents for the Project. The engineer /architect's services, duties, and responsibilities are described in the agreement between The County and the Engineer /architect. 5.1.4. The County shall furnish the site of the Project, all necessary surveys describing the physical characteristics, legal limitations, utility locations, a legal description, soils report and utility agreements. 5.1.5. The County shall secure and pay for necessary approvals, permits, tap fees, permanent easements, assessments, and charges required for the construction, use or occupancy of permanent structures. 5.1.6. The CM/GC recognizes that The County, acting through the Board of County Commissioners, is a governmental body with certain procedural requirements to be satisfied. The CM/GC has and will make reasonable allowance in its performance of the Work for such additional time as maybe required for approvals and decisions by The County, other than the times specifically provided in paragraph 5.1.8. 5.1.7. In the review process of the final Design Development Documents and Construction Documents for each Bid Package, the CM/GC expressly agrees to the following review times by The County: a period of fourteen (14) business days for the review of the Design Development Documents; and 2. a period of fourteen (14) business days for review of construction documents after receipt of all bid documents for each Bid Package commencing with the date of receipt by the Project Manager of all documents and any other items which are required to be furnished to The County by the terms of The County's contract with the Engineer /architect. 3. a review will run concurrently with the Engineer /architect's and CM/GC's work, however the Owner's comments will be incorporated in a timely manner. If a quicker turn-around time is necessary, the CM/GC shall notify The County that a response is necessary but in no case shall CM/GC provide County less than seven days. G: I CPROJECTIAtrportlTower ProjectlATCT- CMGC contract2WPD.wpd Page 25 ! ! ARTICLE 6 - TIlVIE OF COMMENCEMENT AND COMPLETION 6.1. COMMENCEMENT 6.1.1. The Contract Time shall commence upon the issuance of a Notice to Proceed but no Work shall be performed prior to the delivery of all documents and certificates required to be furnished by the CM/GC. 6.1.2. The Construction Phase shall commence in accordance with paragraph 6.1.4. 6.1.3. The commencement of the Construction Phase is expressly conditioned upon and shall not commence until: The Schedule of Values has been approved and accepted by The County; 2. The date for Completion of the Work has been approved and accepted by The County; 3. All required Performance and Labor and Material Payment Bonds have been approved and accepted by The County; and 4. The insurance to protect the property has been approved and accepted by The County; and If any of the preceding conditions to be performed by The County have not been fully satisfied by reason of any act or omission on the part of The County, the CM/GC shall have the right, in addition to any other rights and remedies it may have, to terminate this Agreement pursuant to the provisions of Article 20.2. If any of the preceding material conditions to be performed by the CM/GC have not been fully satisfied by reason of any act or omission on the part of the CM/GC through no fault of The County, The County, acting by and through the Board of County Commissioners, shall give the CM/GC written notice of any and all such deficiencies and allow ten (10) days from the date of such notice to correct or commence correction of such deficiency or deficiencies, and in the event the deficiency or deficiencies are not fully corrected or continuously worked toward correction within the ten (10) day period, The County may declare the CM/GC to be in default of this Agreement and terminate the same. 6.1.4. Time is of the essence in this Agreement. The CM/GC shall begin the Work within ten (10) days of the Issuance of the Notice to Proceed. 6.1.5. The CM/GC shall carry the Work forward expeditiously with adequate forces and shall achieve Completion of the Work within the Contract Time. G: ICPROJECT1Airportl Tower ProjectlATCT- CMGC contract2WPD.wpd Page 26 6.2. COMPLETION DATE 6.2.1. At the time the Guaranteed Maximum Price is agreed upon, the date of Completion of the Work shall be established subject to the limitations agreed to in paragraph 2.1.8. Thereafter the same may be revised by mutual agreement as set forth in Change Orders. 6.3. DELAYS AND EXTENSIONS OF DATE OF COMPLETION OF WORK 6.3.1. If the CM/GC is delayed at any time in the progress of the Work by any act or neglect of The County, the Engineer /architect, or by any separate contractor, or by strikes, lockouts, fire, unusual delay in transportation, directed suspensions of the Work pursuant to paragraph 6.5.1. where the CM/GC is not at fault, unavoidable casualties, or any other causes beyond the CM/GC's control, the Contract Time maybe extended by The County for such period of time as The County may determine based upon the CM/GC's showing of the delay to the critical path and that it could not have avoided and cannot avoid the delay by the exercise of due diligence. 6.3.2. Seasonal weather conditions shall be considered and included in the planning and scheduling of all Work influenced by high or low ambient temperatures, wind, and/or precipitation to ensure completion of all Work within the Contract Time. Seasonal weather conditions shall be determined by an assessment of average climactic conditions based upon the ten year record from January 1980 through December 1990 published for the locality by the National Ocean and Atmospheric Administration, "Climatological Observations,"- Gypsum, Colorado for temperature and precipitation data, and "Surface Weather Observations"- Gypsum, Colorado for wind data. If adverse weather conditions are the basis for a Claim for a extension of the Contract Time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, could not have been reasonably anticipated and that the weather conditions complained of had an adverse effect on the critical path which could not be avoided and cannot be cured with due diligence. 6.3.3. If the CM/GC intends to assert a Claim for an extension of the Contract Time, the CM/GC shall give written Notice of Claim for each such delay to the Engineer /architect and The County within fourteen (14) days from the discovery of the delay and shall submit its written Claim for extension to the Contract Time within fourteen (14) days after the period of delay has ceased. No Claim for extension to the Contract Time shall be valid unless such written Notice of Claim and written Claim are submitted as herein required. In the case of a continuing delay, only one written Notice of Claim shall be necessary. 6.4 TEMPORARY SUSPENSION OF WORK 6.4.1. The County, acting by and through the Board of County Commissioners, shall have the authority to suspend the Work, either wholly or in part, for such period or periods as it may deem necessary due to: Unsuitable weather; G: ICPROJEC71AirportlTower PrajectlATCT- CMGC corstracl2WPD.wpd Page 27 2. Faulty workmanship or material; 3. Improper superintendence; 4. CM/GC's material and substantial failure to carry out orders or to perform any provision of the Contract Documents; 5. Conditions which are considered unfavorable for the prosecution of the Work; or 6. Any other reason, with or without cause, including but not limited to the availability of funding for the Project as well as any other County construction projects and the need to allocate funds between them. 7. Failure to obtain marketable title. 6.4.2. If it should become necessary to suspend the Work for an indefinite period, the CM/GC shall store all materials in such manner that they will not become an attractive nuisance, obstruction or become damaged in any way; and it shall take every precaution to prevent damage to or deterioration of the Work, provide suitable drainage, and erect temporary structures where necessary. 6.4.3. Such Notice of Suspension of Work shall be in writing and the CM/GC shall again proceed with the Work when so notified in writing in a reasonably prompt manner. 6.4.4. CM/GC shall be entitled to recover the direct costs incurred due to a delay caused by a suspension under paragraph 6.5.1.(6) or (7) caused by events outside the control of CM/GC. 6.5. DELAY DAMAGES 6.5.1. If the CM/GC is delayed at any time in the progress of the Work by the Owner or by any separate contractor employed by the Owner; or by labor disputes, fire, unusual delay in transportation, or by delay authorized by the Owner; the Contract Time Schedule maybe extended by Change Order for such reasonable time as the Owner may determine. All requests for extension of time or claims for extra costs occasioned by delays shall be subject to the Owner's approval and shall be made in writing to the Owner no more than fourteen (14) days after the occurrence of the delay or event causing the extra cost; otherwise they shall be waived and barred. 6.6 LIQUIDATED DAMAGES 6.6.1. Time is of the essence in this Agreement and all time frames enunciated in the Contract Documents shall be adhered to by the CM/GC. Failure of the CM/GC to substantially complete any portion of the work in conformance with the Contract Documents will result in damage to The County. The amount of damages suffered by The County, at the time of executing this Agreement G: ICPROJECTIAirportlTower ProjectlATCT- CMGC contract2WPD.wpd Page 28 (../v ~ ~ and at the time of any delayed performance by the CM/GC, are difficult to ascertain with any reasonable certainty. The County has attempted to forecast a reasonable daily estimate of the damage a delay would cost The County. The CNUGC shall and hereby agrees to pay The County the sum of Three Hundred ($300) for each and every business day that the work or a portion of the work is not completed within the time(s) allotted. 6.6.2. The amount of liquidated damages provided in this Agreement is neither a penalty nor a forfeiture. The liquidated damages shall compensate The County for the value of the actual damages that a breach or delay would cause, including loss of use, increased cost of materials, and rent associated with the inability to utilize the facility. 6.6.3. If the CM/GC Fails to substantially complete the Work or any portion of the Work in conformance with the Contract Documents and the Engineer /architect and/or County nevertheless permit(s) the CM/GC to continue performance of the Work, such permission shall neither modify nor waive The County's right to assess and collect and the CM/GC's obligation to pay liquidated damages. 6.6.4. In the event The County terminates the CM/GC or if the CM/GC abandons performance of the Work, the resulting damage for any delay in completing all or a portion of the Work will consist of liquidated damages plus any additional costs incurred by The County in completing the Work. 6.6.5. The County shall recover liquidated damages by deducting the amount thereof from any monies due or payable to the CM/GC. In the event the remaining balance due the CM/GC is insufficient to cover the full amount of assessed liquidated damages, the CM/GC or his surety shall pay the amount due and The County shall be entitled to any and all rights and remedies available to it in law or equity to recover same. ARTICLE 7 -SUBCONTRACTS 7.1 SUBCONTRACTING 7.1.1. All portions of the Work that the CM/GC does not perform with its own forces shall be performed under subcontracts bypre-qualified subcontractors. 7.2 SUBCONTRACTOR PRE-QUALIFICATION 7.2.1. The CM/GC shall use as subcontractors for the various major trades, subcontractors who have been pre-qualified by the CM/GC. 7.3. SUBCONTRACT FORMS 7.3.1. All subcontracts will be between the CM/GC and the subcontractors. G: ICPROJECTiAirportl Tower ProjectlATCT- CMGC contract2WPD.wpd Page 29 C.,7'~ ~ ~ 7.4. CM/GC RESPONSIBLE FOR SUBCONTRACTORS 7.4.1. The CM/GC shall be responsible to The County for the acts and omissions of its agents, employees, suppliers, subcontractors performing work under a contract with the CM/GC, and such subcontractors' lower-tier subcontractors, agents and employees. 7.5. SUBSTITUTION OF SUBCONTRACTORS -The CM/GC shall make no substitution for any subcontractor, person or entity previously selected without the prior written approval of The County, which approval shall not be unreasonably withheld. 7.6. SUBCONTRACTUAL RELATIONS - By an appropriate written agreement, the CM/GC shall require the subcontractor, to the extent of the Work to be performed by the subcontractor, to be bound to the CM/GC by the terms of the Contract Documents, and to assume towazd the CM/GC all the obligation and responsibilities which the CM/GC, by these Documents, assumes toward The County. Said agreement shall preserve and protect the rights of The County under the Contract Documents with respect to the Work to be performed by the subcontractor so that the subcontracting thereof will not prejudice such rights. The CM/GC shall require each subcontractor to enter into similaz agreements with its subcontractors. The CM/GC shall make available to each proposed subcontractor, prior to the execution of the subcontract, copies of the Contract Documents to which the subcontractor will be bound by this pazagraph 7.6. Each subcontractor shall similazly make copies of such Documents available to its subcontractors. 7.7 ASSIGNMENT OF SUBCONTRACTS TO COUNTY -Each subcontract and material purchase order is hereby assigned to County by CM/GC provided that: (a) assignment is effective only after termination of the Contract by County for cause and only for those subcontract agreements which County accepts by notifying the subcontractor and CM/GC in writing; and (b) assignment is subject to the prior rights of the surety, if any, obligated under the bond relating to the Project. Each subcontract and material purchase order shall include this assignment. 7.8. COUNTY/SUBCONTRACTOR RELATIONSHIP -Nothing contained in the Contract Documents shall be deemed to create any contractual relationship whatsoever between any subcontractor of any tier and The County. ARTICLE 8 - WORK BY COUNTY OR BY SEPARATE CONTRACTORS 8.1. COUNTY'S RIGHT TO PERFORM WORK AND TO AWARD SEPARATE CONTRACTS 8.1.1. The County reserves the right to perform work related to the Project with The County's own forces, and to award sepazate contracts in connection with other portions of the Project or other work on the site under these or similaz conditions of this Agreement. G: ICPROJEC71AirportlTower ProjectlATCT- CMGC contract2YVPD.wpd Page 30 C7p ~- • 8.1.2. When separate contracts are awarded for different portions of the Project or other work on the site, separate Contractor in the Contract Documents in each case shall mean the Contractor who executes each separate County-Contractor Agreement. 8.2. COORDINATION To the extent separate Contractors are not assigned to the CM/GC for coordination pursuant to Article 10, the Engineer /architect will provide and be responsible for the coordination but not for the supervision or acts of the Work of The County's own forces and of each separate Contractor with the Work of the CM/GC, who shall cooperate therewith as provided in paragraph 8.3.1. through 8.4.1. 8.3. MUTUAL RESPONSIBII,ITY 8.3.1. The CM/GC shall afford The County and separate Contractors reasonable opportunity for the introduction and storage of their materials and equipment and the execution of their work, and shall connect and coordinate the Work with theirs. Foreseeable work performed by The County will be identified prior to construction starts. 8.3.2. To insure the proper execution of its subsequent Work, if any part of the CM/GC's Work depends for proper execution or results upon the work of The County or any separate Contractor, the CM/GC shall, prior to proceeding with the Work, inspect and promptly report to The County any apparent discrepancies or defects in such other work that renders it unsuitable for such proper execution and results. The CM/GC shall also measure such other work akeady in place and shall promptly report to the Engineer /architect any discrepancy between the executed work and the drawings. Failure of the CM/GC to so inspect or report shall constitute an acceptance of The County's or separate Contractor's work as fit and proper to receive the Work, except as to defects which may develop in the separate Contractor's work after execution of the Work. 8.3.3. Should the CM/GC cause damage to the work or property of The County, or to other work or property on the site, the CM/GC shall promptly remedy such damage. ARTICLE 9 -COMPENSATION 9.1. APPROPRIATIONS 9.1.1. The County has established a Cost Not to Be Exceeded for the entire Work based on consultation with the Engineer /architect, which shall include contingencies for bidding and construction and other costs which are the responsibility of The County. The funds appropriated for this Project are equal to or in excess of the Cost Not To Be Exceeded amount. 9.1.2. The Cost Not To Be Exceeded is $1.6 million and the CM/GC acknowledges that The County is limited by this sum to construct the entire Work. Should funding of a lesser amount be G: ICPROJECTIAirportlTower ProjectlATCT- CMGC contract2WPD.wpd Page 31 • • made available for the Project, it is the obligation of The County, CM/GC-and Engineer /architect to revise the project scope consistent with the ultimate Project appropriation. 9.1.3. For purposes of this Agreement, the Guaranteed Maximum Price will be the amount set forth by the CM/GC at the end of design documents and such amount shall be incorporated into this Agreement. 9.1.4. Financial obligations of the County payable after the current fiscal year are contingent upon funds for the purpose being appropriated, budgeted, and otherwise made available. 9.1.5. In accordance with the conditions imposed in the appropriation or allocation authorizing the construction of the Project herein contemplated, the total cost for the CM/GC's fee and all sums otherwise due the CM/GC as the cost of construction, as set forth throughout this Agreement, are expressly subject to the foregoing limitations and nothing herein contained shall be construed or understood to commit The County to a total expense greater than that which is provided in the appropriation or allocation. The County agrees to provide evidence of the appropriation to the CM/GC and will promptly provide notice of any change to the initial appropriation or allocation. Further, no funds appropriated or allocated for any other purpose shall be expended for this Project. The County agrees not to issue any directed Change Orders or Modifications which would cause the sums due the CM/GC pursuant to this Agreement to exceed the appropriation or allocation for the Work nor shall the CM/GC be required to undertake any acts that would cause sums due the CM/GC to exceed the appropriation or allocation for the work. No change order or other form of order or directive by County, and no amendment to this Agreement, requiring additional compensable work to be performed, which work causes the aggregate amount payable under the Agreement to exceed the amount appropriated for the original Agreement, shall be of any force or effect unless accompanied by a written assurance by The County that lawful appropriations to cover the costs of the additional work have been made or unless such work is covered under aremedy- granting provision in the Agreement. 9.2. CM/GC'S FEE 9.2.1. Subject to the provisions of Articles 9.1 and 20.2, and in consideration of the performance of this Agreement, The County shall pay the CM/GC in current funds as compensation for its services, four and three tenths percent (4.30)% of the Guaranteed Maximum Price (GMP), which shall be converted to a fixed sum when the GMP is determined. 9.2.2. CM/GC's fee shall include all overhead and profit. Overhead shall include all of the CM/GC's offsite costs, including, but not limited to, those for management, scheduling, estimating and support of the project. This amount is to include the Cost for your key personnel and other off site office staff. Profit means before tax profit. On-site costs of construction will be considered a part of the costs of the work and these costs are not to be included in the fee. Costs to be included in the General Contractor's Fee shall include: G: I CPROJECT1AirportlTower ProjectlATCT- CMGC contract2GYPD.wpd Page 32 • 1) Salaries and other compensation of the General Contractor's personnel stationed at the Contractor's principal office or offices other than the site office (per Exhibit K); 2) Expenses of the General Contractor's principal office and offices other than the site office (per Exhibit K); 3) Overhead and general expenses; 4) The General Contractor's capital expenses, including interest on the General Contractor's capital employed for the Work; 5) General Conixactor profit. 9.3. ADJUSTMENT IN FEE 9.3.1. Adjustments in Fee shall be made as follows: If, after the initial Guazanteed Maximum Price (GMP) is finally accepted by The County, The County directs additions to or other changes made in the Work, the CM/GC's fee shall be four and three tenths percent (4.30)% excluding bonds and insurances. The fee will not be subject to reduction if the Cost of the Work can be reduced through the efforts of the design team or CM/GC via design refinement or procurement efforts. Abandonment or significant reduction in the scope or magnitude of the Project will result in a negotiated reduction of the fee. 9.3.2. The CM/GC shall also be paid an additional fee at the rate as set forth in pazagraph 9.3.1. if the CM/GC is placed in chazge of the reconstruction of any insured loss. 9.4. GUARANTEED PRICE 9.4.1. The Guaranteed Maximum Price (GMP) shall be determined upon the completion of Construction Documents. The total cost for all phases will be added together to achieve a total GMP for the project. It will be the project team's responsibility to maintain a total GMP that does not exceed $1,600,000.00. 9.4.2. The GMP shall include all of the CM/GC's obligations to be performed pursuant to the terms of the Contract Documents and include, but not be limited to, all fees as set forth in Section 9.2 and the costs as outlined below: 1. Wages paid for labor in the direct employ of the CM/GC in the performance of the Work under applicable collective bazgaining agreements, or under a salary or wage agreed upon by the Owner and CM/GC and including such wages or other benefits, if any, as may be payable with respect thereto. If these wages are under applicable collective bargaining agreements the termination date of such agreements must be included. The wage rates (including the labor fringe benefit burden and overhead) shall be those set forth in Exhibit "K." G: ICPROJEC7L4irportlTower ProjectlATCT- CMGC contrnctlWPD.wpd Page 33 • 2. Salaries of CM/GC's employees engaged in work on the project, in whatever capacity employed. The salary rates (including the labor fringe benefit burden and overhead) shall be those set forth in Exhibit "K." 3. Cost of pension contributions, hospitalization, vacations, medical insurance, assessments or taxes for such items as unemployment compensation and social security, insofar as such cost is based on wages, salaries or other remuneration paid to employees of the CM/GC and included in the cost of the Work. 4. The proportion of reasonable transportation, traveling and hotel expenses of the CM/GC or of its officers or employees incurred in discharge of duties connected with the Work, when the necessity for such expenditures is approved in advance by the County. 5. Cost of all materials, supplies and equipment incorporated in the Work, including costs of transportation thereof. Also includes any material in excess of those actually installed but required to provide reasonable allowance for waste and spoilage. 6. Payment made by the CM/GC to subcontractors for work performed pursuant to contract under this Agreement. 7. Cost, including transportation and maintenance, of all materials, supplies, equipment, temporary facilities and hand tools not owned by the workmen, which are employed or consumed in performance of the Work and costs less salvage value on such items used but not consumed which remain property of the CM/GC. 8. Rental charge of all necessary machinery and equipment, exclusive of hand tools, used at the site of the Work, whether rented from the CM/GC or other, including installation, repairs and replacement, dismantling, removal, costs of lubrication, transportation and delivery costs thereof, at rental charges consistent with those prevailing in the area. Rental charges for tools owned by CM/GC shall be as stipulated in an exhibit (Exhibit "K") to be completed at time of GMP but in no case shall be more than 90% of current blue book prevailing rates for local area. 9. Cost of the premiums for all bonds and insurance which are required by the Contract Documents. Primary comprehensive general and automobile liability insurance and umbrella excess liability insurance shall be reimbursed at a rate mutually agreed upon by the parties. Bonds shall be reimbursed at a rate also mutually agreed upon by the parties. 10. Minor expenses such as telegrams, long distance telephone calls, telephone service at the site, expressage and similar petty cash items in connection with the Work. 11. Cost of removal of all debris. C: ICPROJEC71AirportlTower ProjectlATCT- CMGC contractlWPD.wpd Page 34 • 12. Cost incurred due to an emergency affecting the safety of person and property, to the extent not compensated by insurance or otherwise. 13. Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by The County. 14. All costs directly incurred in the performance of the Work and not included in the CM/GC Fee. 15. Cost of construction support activities such as Work items included in the condition of the contract and in the specifications unless they are provided by contractors. 16. The installation cost of items to be procured by The County and assigned to the CM/GC for installation, as defined in the Contract Documents. 17. Contingencies. 18. CM/GC's fee. 9.4.3. On-site costs of construction will be considered a part of the cost of the Work and these costs are not to be included in the fee. At the end of Design Documents the CM/GC will deliver a GMP for the Project to include the following and all other costs necessary to complete the Project. All savings below the GMP shall revert to The County. Work performed by the CM/GC's own forces (other than General Conditions/General Requirements) with The County's prior consent, shall be paid at actual cost plus 4.3% overhead. 9.4.4. The Guaranteed Maximum Price proposal as set forth in paragraph 9.4.1. shall: 1. set forth a stated dollar amount which may not be exceeded; 2. set forth the Schedule of Values therefor which shall be consistent with previously approved Schedules of Values, as adjusted as required pursuant to Design Development cost estimating; 3. contain no conditions or exceptions to the contract; 4. Any allowances shall be contained in the GMP and be identified in Exhibit "K"; 5. be substantiated with complete supporting documentation acceptable to the Engineer / architect, to clearly define the anticipated work to be performed by the CM/GC and facilitate a determination thereafter when final drawings and specifications are released for construction purposes, as to whether there has been an increase in the Work required of the CM/GC in the documents released for construction from the G:ICPROJEC71AirportlTowerProjectlATCT- CMGCcontractlWPD.wpd Page 35 C.~`~ • • Design Development Documents on which the Guazanteed Maximum Price was based. 9.4.5. If through fault on the part of the CM/GC, and after receiving reasonable cooperation by The County and Engineer /architect, the CM/GC submits a GMP proposal contrary to the provisions of pazagraph 9.4.2. and 9.4.3., the proposal may be rejected by The County; and The County may declare the CM/GC to be in default; and payment may be withheld from the CM/GC, until a GMP is furnished in accordance with the foregoing. 9.4.6. If, in developing a GMP, the CM/GC believes any documentation or information, consistent with the Design Development level of documentation, is not sufficiently complete to clearly define the anticipated work, the CM/GC shall be responsible for making all necessary inquiries and requests and the Architect/Engineer or The County shall furnish such information as required to establish the same. 9.4.7. When the GMP is agreed upon and accepted by The County in writing, it will automatically be made part of the Contract Documents and cannot be exceeded without being approved in writing by the Board of County Commissioners. 9.4.8. The CM/GC shall coordinate into the overall construction schedule, and cooperate with the contractors having separate contracts with The County for the Project. If for any reasons there aze problems with any contractor, The County's Project Manager shall be notified. 9.4.9. The GMP includes General Conditions/General Requirements limited to the amount submitted in the RFP of the Cost of the Work. At the time the GMP is established, the CM/GC will submit for review and acceptance by Owner an itemized breakdown of the General ConditionslGeneral Requirements costs for the Project and aline-item amount will be established in the Schedule of Values for General Conditions/General Requirements. 9.5. PAYMENTS 9.5.1. Construction Phase Services Fee: For the performance of the Construction Phase Services, the fee therefore as set forth in pazagraphs 9.2.1. shall be paid monthly based upon AIA format totaling the aggregate of all work previously performed as submitted by the CM/GC, with the total payment not to exceed the fee for such services as set forth in paragraph 9.2.1.. 9.5.2. Schedule of Values: At the time the GMP is accepted, as set forth in Article 9.4. the CM/GC shall also submit to Engineer / architect a complete, detailed and itemized Schedule of Values allocated to the Work, aggregating the total, such sum to be equal or less than the GMP, supported by such data to substantiate its accuracy as the Engineer /architect or the Project Manager may require. The CM/GC's fee shall be set forth as a separate line item. G: ICPROJECTIAirportlTower ProjectlATCT- CMCCcontrrtctlWPD.wpd Page 36 • • At least ten (10) days before submission of the first Project Application for Payment for the construction phase, a conference attended by the CM/GC, Engineer /architect and County will be held to finalize the Schedule of Values. The CM/GC's fee shall be paad in proportion to the percent of the Work that is complete. Any balance of the fee shall be paid at the time of final payment. 9.5.3. Applications for Payment: On or before the first day of each month and no more than three (3) days prior thereto, the CM/GC shall submit to the Engineer / architect an itemized Project Application for Payment covering the portion of the Work completed as of the date indicated in the Application together with the portion of the CM/GC's fee then due, which shall be notarized and supported by valid lien waivers for the period of time covered in the immediately preceding Project Application for Payment from all subcontractors and suppliers who may have lien rights, together with such additional documentation substantiating the CM/GC's right to payment as The County and Engineer /architect may require, and reflecting retainage, if any, as provided elsewhere in the Contract Documents. The form of Project Application for Payment shall be AIA format. All Project Applications for Payment, except the final Project Application for Payment, shall be subject to correction including revision to the next Project Applications for Payment rendered following the discovery of any error. 9.5.4. Unless otherwise provided in the Contract Documents, payments will be made on account of materials or equipment not incorporated in the Work but delivered and suitably stored. Payments for materials or equipment stored on or off the site shall be conditioned upon submission by the CM/GC of bills of sale or such other documents or procedwes of verification satisfactory to The County to establish The County's title to such materials or equipment or otherwise protect The County's interest. 9.5.5. The CM/GC warrants that title and warranties to all Work, materials, and equipment covered by a Project Application for Payment will pass to The County upon receipt of payment by the CM/GC, free and clear of all liens, claims, security interests, or encumbrances, herein referred to in this article 9 as "liens"; and that no work, materials, or equipment covered by a Project Application for Payment will have been acquired by the CM/GC, or by any other person performing work at the site or furnishing materials and equipment for the Work, subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the CM/GC or such other person, provided payment has been received by CM/GC for said work materials or equipment. 9.5.6. Retainage: Unless otherwise provided in the Contract Documents, an amount equivalent to ten percent (10%) of the amount shown to be due the CM/GC on each Project Application for Payment for the Construction Phase only shall be withheld until fifty percent (50%) of the Work required by the Contract Documents has been performed. Thereafter, the remaining estimates shall be paid without retaining additional funds if, in the opinion of the Engineer /architect and The County, satisfactory progress is being made in the Work. The withheld percentage of the Contract Sum shall be administered according to Titles 24-91-101 through 110 et seq. and 38-26-101 et seq. C.R.S., as amended, and shall be retained until final settlement. Any provision to the contrary G: ICPROJEC71AirportlTower ProjectlATCT- CMGC contract2WPD.wpd Page 37 • • contained in the Contract Documents, or any subcontract or other agreement shall be null and void as it pertains to The County and its obligations pursuant to this Agreement. 9.5.7. Project Certificate for Payment: The Engineer / azchitect will, within five (5) days after the receipt of each Project Application for Payment, review the Project Application for Payment and either execute a Project Certificate for Payment to The County for such amounts as the Engineer / architect reasonably determines aze properly due, or notify the CM/GC in writing of the reasons for withholding a Certificate as provided in pazagraph 9.6.12. 9.5.8. The issuance of a Project Certificate for payment shall constitute a representation by the Engineer /architect to The County that based on the Engineer / azchitect's observations at the site as provided in Article 14 and the data comprising the Project Application for Payment, the Work has progressed to the point indicated; that, to the best of the Engineer /architect's knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents (subject to an evaluation of the Work for conformance with the Contract Documents upon Completion of the Work, to the results of any subsequent tests required by or performed under the Contract Documents, to minor deviations from the Contract Documents correctable prior to completion, and to any specific qualifications stated in the Project Certificate for Payment); and that the CM/GC is entitled to payment in the amount certified. However, the issuance of a Project Certificate for Payment shall not be a representation that the Engineer / azchitect has made exhaustive or continuous on-site inspections to check the quality or quantity of the Work, has reviewed the construction means, methods, techniques, sequences, or procedures, or has made any examination to ascertain how or for what purpose the CM/GC has used the monies paid on account of the Contract Sum. 9.5.9. Progress Payments: After the County is in receipt of the Engineer / azchitect approved Project Certificate for Payment, The County shall make payment within twenty (20) days. 9.5.10. The CM/GC shall promptly pay each subcontractor and supplier upon receipt of payment from The County out of the amount paid to the CM/GC on account of such subcontractor's or supplier's work or materials furnished, the amount to which said subcontractor or supplier is entitled, reflecting the percentage actually retained, if any, from payments to the CM/GC on account of such subcontractor's work or materials furnished. The CM/GC shall by an appropriate agreement with each subcontractor or supplier, require each subcontractor or supplier to make payments to their subcontractors or suppliers in similar manner. 9.5.11. Neither The County nor the Engineer /architect shall have any obligation to pay or to see to the payment of any monies to any subcontractor of any tier or supplier. 9.5.12. Payments Withheld: The Engineer / azchitect, following consultation with The County, may decline to certify payment and may withhold execution of the Project Certificate for payment in whole or in part to the extent necessary to reasonably protect The County, if, in the Engineer / architect's opinion, the Engineer /architect is unable to make the representations to The County, as provided in paragraph 9.5.9. If the Engineer /architect is unable to make the representations to The G:ICPROJEC71AirportlTower ProjectlATCT- CMGCcontractlWPD.wpd Page 3 S .1 • i County as provided in paragraph 9.5.9., and to certify payment in the amount of the Project Application for Payment, the Engineer /architect will notify the CM/GC as provided in paragraph 9.5.8. If the CM/GC and the Engineer /architect cannot agree on a revised amount, the Engineer / architect will promptly issue a Project Certificate for Payment for the amount for which the Engineer /architect is able to make such representations to The County. The Engineer /architect may also decline to certify payment and The County may decline to make payment, or because of subsequently discovered evidence or subsequent observations, the Engineer /architect may nullify the whole or any part of any Project Certificate for Payment previously executed and The County may withhold from any subsequent payments due to the CM/GC, to such extent as maybe necessary to protect The County for loss because of: defective work or material not remedied; 2. claims filed by third parties or reasonable evidence indicating probable filing of such claims; 3. failure of the CM/GC to make payments properly to subcontractors, or for labor, materials, or equipment; 4. damage to The County or any separate Contractor; 5. failure to carry out the Work in accordance with the Contract Documents; 6. failure to obtain necessary permits or licenses or to comply with applicable laws, statutes, ordinances, codes, rules or regulations; 7. Failure to diligently proceed with completion of the Work. 9.5.13. When the grounds in paragraph 9.5.14. above are removed, payment shall be made for amounts withheld because of them within fifteen days (subject to payment procedures pursuant to the trust indenture for the project financing). 9.5.14. No certification of a progress payment, any progress payment, or any partial or entire use or occupancy of the Project by The County, shall constitute an acceptance of any Work not in accordance with the Contract Documents. 9.5.15. Final Payment: Final payment shall be paid by The County to the CM/GC pursuant to the provisions of Article 17. ARTICLE 10 - CHANGES IN THE WORK 10.1. AMENDMENTS AND CHANGE ORDERS G:ICPROJEC71AirportlTowerProjectlATCT-CMGCcondractlWPD.wpd Page 39 10.1.1. The County, without invalidating this Agreement and without notice to any surety, may order extra Work or make changes by altering, adding to, or deducting from the Work (changes), the GMP and Contract Time being adjusted accordingly. All such Work shall be executed under the conditions of this Contract except that any Claim for extension of the Contract Time caused thereby shall be adjusted by Change Order at the time of ordering such change. The parties further recognize that in making changes, The County may wish to make substantial increases to the Work to be performed and expressly agree that in making any such changes, the same shall be permissible under the terms of this Agreement and all adjustments to the Contract Sum, Guaranteed Maximum Price and Contract Time shall be made in accordance with this Agreement. 10.1.2. A Change Order is a written order to the CM/GC signed by the Boazd of County Commissioners or the Project Manager, issued after the execution of this Agreement, authorizing a change in the Work, the method or manner of performance, and adjustment in the GMP, the CM/GC's Fee or the Contract Time. Each adjustment in the GMP resulting from a Change Order shall cleazly sepazate the amount attributable to the Cost of the Work and CM/GC's Fee, if any. The GMP and the Contract Time maybe changed only by Change Order. A Change Order signed by the CM/GC conclusively establishes the CM/GC's agreement therewith, including the adjustment in the GMP and the Contract Time. 10.1.3. No extra work or change in the Contact Documents shall be made unless by a written Change Order approved by The County. No Claim for any change to the Guaranteed Maximum Price or Contract Time shall be valid unless so ordered. No one other than the Boazd of County Commissioners, in writing, has authority to require an acceleration of the Project. 10.1.4. The value of any change shall be determined by: Changed work shall be adjusted and considered separately for the Work either added or omitted. The amount of adjustment for Work omitted shall be estimated at the time it is authorized, and the agreed adjustment will be deducted from the subsequent monthly estimates. 10.1.5. The CM/GC shall keep and present a correct account of the several items of cost. This requirement applies equally to work done by subcontractors of all tiers. 10.1.6 The County reserves the right to contract with any person or firm other than the CM/GC for any or all changed work. 10.1.7. Subject to the provisions of this Article 10.2, cost for changes shall be limited to the following: cost of materials, including cost of delivery, cost of labor, insurance, benefits, bonds, warranty and labor burden; the rental value of equipment and machinery; payments made by the CM/GC to subcontractors for work performed by subcontractors and Bond and property insurance premiums, if any. 10.1.8. The CM/GC shall promptly proceed with the Work involved provided a written Change Order signed by The County is received. G.•ICPROJECTIAirportlTower ProjectlATCT- CMCC contract2WPD.wpd Page 40 G~ ~ ~ 10.1.9. Notwithstandingthe provisions ofparagraph 10.1.2, The County's representative with authority to bind The County to Change Orders involving additions to the GMP up to a total of $10,000.00 for the Work in any given Change Order is the Director of The County's Facilities Management Department, and involving additions to the GMP up to a total of $25,000.00 for the Work included in any given Change Order is the Eagle County Administrator. An addition of Work shall not be broken into sub-parts for the purpose of fitting into one or another of these authorities. 10.2. ADJUSTMENTS IN GUARANTEED PRICE 10.2.1. Adjustments in the GMP shall be made at the sole discretion of The County. CM/GC's failure to discern conditions or circumstances that later increase their cost to complete the Project shall not be a basis for an adjustment to the GMP. 10.3. DIFFERING SITE CONDITIONS 10.3.1. The CM/GC shall promptly, and before the conditions are disturbed, give notice to the Engineer / architect and County of (1) subsurface or latent physical conditions at the site which differ materially from those indicated in the Contract Documents, or (2) unknown physical conditions at the site of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents. Failure to so notify the Engineer /architect and The County shall be considered acceptance of the site conditions and no future claims based on said conditions shall be entertained. ARTICLE 11 -INSURANCE 11.1. CM/GC'S LIABILITY INSURANCE 11.1.1. The CM/GC shall purchase and maintain in a company or companies authorized to do business in the State of Colorado, such insurance as will protect it from the claims set forth below which may arise out of or result from the CM/GC's operations under the Contract Documents whether such operations be by it or by any subcontractor of any tier or by anyone directly or indirectly employed by any of them or by anyone for whose acts any of them maybe liable due to the work: 1. Claims under workers' compensation, disability benefit and other similar employee benefit acts which are applicable to the Work to be performed; 2. Claims for damages because of bodily injury, occupational sickness or disease, or death of CM/GC's employees; 3. Claims for damages because ofbodily injury, sickness or disease or death of any person other than the CM/GC's employees; G: ICPROJECTIAirportlTower ProjectlATCT- CMGC contract2WPD.wpd Page 41 A 4. Claims for damages insured by usual personal injury liability coverage which are sustained by any person, as a result of an offense directly or indirectly related to the Work; 5. Claims for damages, other than to the Work, because of injury to or destruction of tangible property including loss of use resulting therefore; 6. Claims for damages because of bodily injury or death of any person or property damage arising out of the ownership, maintenance, or use of any motor vehicle; and 7. Claims involving contractual liability insurance applicable to the CM/GC's obligations under paragraph 12.1.1. 11.1.2 MINIlVIUM INSURANCE COVERAGES AND REQUIREMENTS - The CM/GC shall obtain and maintain the minimum insurance coverages set forth below. By requiring such minimum insurance, County shall not be deemed or construed to have assessed the risks that may be applicable to the CM/GC under this Contract. The CM/GC shall assess its own risks and if it deems appropriate and/or prudent, maintain higher limits and/or broader coverages. Commercial General Liability -ISO 1993 Form or equivalent. Coverage to include: * Premises and Operations * Explosion, Collapse and Underground Hazards * Products/Completed Operations * Contractual Liability * Broad Form Property Damage * Independent Contractors * PersonaUAdvertising Injury 2. Automobile Liability including all: * Owned Vehicles * Non-Owned Vehicles * Hired Vehicles 3. Worker's Compensation * Statutory Benefits (Coverage A) * Employers Liability - $100,000/$500,000/$100,000 (Coverage B) 4. Umbrella Liability *Excess of Commercial General Liability and Automobile Liability. Coverage should be as broad as primary. G:ICPROJECTIAirportlTower ProjectlATCT- CMGC contract2WPD.wpd Page 42 • 5. Pollution Liability -whenever work under this Contract involves pollution risk to the environment. This coverage is to include sudden and gradual coverage for third party liability including defense costs and completed operations. 11.1.3. LIlVIITS REQUIRED -The CM/GC shall carry the following limits of liability as required by paragraphs 11.1.1. and 11.1.2. 1. Commercial General Liabili * General Aggregate* $2,000,000 * Products/Completed Operations Aggregate $2,000,000 * Each Occurrence Limit $1,000,000 * PersonaUAdvertising Injury $1,000,000 * Fire Damage (any One Fire) $50,000 * Medical Payments (Any One Person) $5,000 *Note: General Aggregate to apply per project (ISO Form CG2503 or equivalent) 2. Automobile Liability * Bodily Injury/Properly Damage $ 1,000,000 (Each Accident) 3. Workers' Compensation a. Coverage A (Workers' Compensation) Statutory Benefits b. Coverage B (Employers' Liability) $100,000 $500,000 $100,000 4. Umbrella Liability * Each Occurrence Limit $5,000,000 * General Aggregate Limit $5,000,000 * Products/Completed Operations Aggregate $5,000,000 5. Pollution Liability (If required) To apply on a per project basis. * Per Loss $ 1,000,000 * Aggregate $ 1,000,000 11.1.4. ADDITIONAL REQUIREMENTS - CM/GC shall name County, and its officers, officials, agents and employees as Additional Insureds, except on the workers' compensation and employer's liability coverage. CM/GC shall provide County Certificates of Insurance and copies of policies prior to commencement of work. Further, all policies of insurance described above shall: 1. Be on a primary basis not contributory with any other insurance coverages and/or the County-insurance carried by County 2. Include a Waiver of Subrogation Clause G: ICPROJECTIAirportl Tower ProjectlATCT- CMGC contract2WPD. wpd Page 43 • 3. Include a Severability of Interest Clause (Cross Liability) 4. Provide that it may not be non-renewed, canceled, materially changed or altered unless sixty(60) days prior written notice is provided to County. Notification shall be provided to County by certified mail 5. Written on an occurrence basis. Insurance as stated above shall be maintained throughout the term of this Contract. 11.1.5. The CM/GC shall promptly advise The County in the event any general aggregates or other aggregates are reduced below the minimum requirements set forth herein for any reason, and shall reinstate the aggregate at the CM/GC's expense to comply with the minimum limits and requirements as set forth in paragraph 11.1.3. and shall furnish to The County a new certificate of insurance showing such coverage is in force. 11.2. WORKERS' COMPENSATION INSURANCE 11.2.1. The CM/GC shall procure and maintain Workers' Compensation Insurance at its own expense during the life of this Agreement, including occupational disease provisions for all of its employees. This insurance, if issued by a private carver, shall contain the same sixty (60) days' Notice of Cancellation as required in Article 11.1. for the Comprehensive Liability Insurance. 11.2.2. Evidence of such insurance shall be by the issuance of either a Certificate by the State Compensation Insurance Fund or, if issued by a private carrier, the completion or a Certificate of Insurance in a form acceptable to The County prior to the commencement of any service by the CM/GC. 11.2.3. The CM/GC shall also require each subcontractor to furnish to it, Workers' Compensation Insurance, including occupational disease provisions, for all of the tatter's employees, or waiver allowed by State. 11.2.4. In cases where any class of employees engaged in hazardous work under the Contract Documents at the site of the Project is not protected under the Workers' Compensation statute the CM/GC shall provide, and shall cause each subcontractor to provide, adequate and suitable insurance for the protection of its employees not otherwise protected. 11.3 BUILDERS' RISK TO PROTECT PROJECT - CM/GC shall purchase and maintain Builders' Risk coverage to protect the project, provided that The County shall be responsible for insurance policy deductibles up to an aggregate $10,000.00. CM/GC shall provide The County a certificate of insurance naming it an additional insured prior to the commencement of construction. G: ICPROJECTiAirportlTower ProjectlATCT- CMGC contractlWPD.wpd Page 44 ARTICLE 12 - IlVDEMNIFICATION 12.1.1. To the fullest extent permitted by law, the CM/GC shall indemnify and hold harmless The County and Engineer /architect, and their respective consultants, agents and employees, from and against all claims, damages, losses, and expenses, including, but not limited to, attorneys' fees arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss, or expense (1) is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work of the County), including the loss of use resulting therefrom, and (2) is caused by any willful, reckless or negligent act or omission of the CM/GC, any subcontractor of any tier, anyone directly or indirectly employed by any of them or anyone for whose acts any of them maybe liable. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this paragraph 12.1.1. 12.1.2. In any and all claims against The County, Engineer /architect, or any of their consultants, agents, or employees, by any employee of the CM/GC, any subcontractor of any tier, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them maybe liable, the indemnification obligation under this Article 12 shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for the CM/GC or any subcontractor of any tier under workers' compensation acts, disability benefit acts or other employee benefit acts. 12.1.3. The obligations of the CM/GC under this Article 12 shall not extend to the liability of the Engineer /architect, its consultants, agents or employees, arising out of (1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change orders, designs or specifications; (2) the giving of or the failure to give directions or instructions by the Engineer /architect, its consultants, agents or employees, provided such giving or failure to give is the primary cause of the injury or damage; or (3) any acts of the Engineer /architect, its consultants, agents or employees outside of the scope of their duties pursuant to the Contract Documents. ARTICLE 13 - CM/GC'S PERFORMANCE AND PAYMENT BONDS 13.1.1. The CM/GC shall secure a Performance Bond and, separately, a Labor and Material Payment Bond in the amount of 100% of the GMP with a corporate surety approved by The County and licensed to transact business in the State of Colorado. If, after the Bonds are fiunished with the GMP, subsequent Change Orders are made to this Agreement which substantially increase the GMP, replacement Performance and Labor and Material Payment Bonds shall be furnished by the CM/GC forthwith upon the acceptance of the increase in the GMP, each in the full amount of the then current GMP. The then current Bonds shall apply to all Work included within the scope of this Agreement, including but not limited to all prior work which may have been performed when previous Bonds may have been in effect. The CM/GC shall also furnish such other bonds as maybe required by the Supplementary Conditions. Said bonds shall be released at the sole discretion of The County. G:ICPROJECTIAirportlTower ProjectlATCT- CMGC contrnctlWPD.wpd Page 45 ,t ~ ~ 13.1.2. The Performance and Labor and Material Payment Bonds shall remain in effect one (1) year after the date when final payment becomes due, except as otherwise provided by law or regulation or by the Contract Documents. All Bonds shall be executed by such sureties as are named in the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies" a.s published in Circular 570 (amended) by the Audit Staff Bureau of Accounts, U. S. Treasury Department. All Bonds signed by an agent must be accompanied by a certified copy of the authority to act. All Bonds must be acceptable to The County. 13.1.3. The initial Bonds shall be filed with The County at the time of The County's acceptance of the GMP pursuant to paragraph 9.4. 13.1.4. If the surety of any bond furnished by CM/GC is declared bankrupt, becomes insolvent, its right to do business in the State of Colorado is terminated or it ceases to meet the requirements of paragraphs 13.1.1. and 13.1.2., CM/GC shall within ten (10) days thereafter, substitute another bond and surety, both of which must be acceptable to County. 13.1.5. The premiums for all Bonds to be provided by the CM/GC as well as those subcontractors required to be bonded by the CM/GC shall be included in the GMP, and the price of each Change Order, and the CM/GC shall not be entitled to additional compensation therefor. ARTICLE 14 -ACCESS TO WORK AND OBSERVATION 14.1.1. The Engineer / architect is, in the first instance, the judge of the performance of the CM/GC as it relates to compliance with the Contract Documents and quality of workmanship and material. 14.1.2. The Engineer / azchitect and its professional consultants or staff shall make visits to the site appropriate to the stage of construction to become familiar with the progress and quality of the Work, and to determine if the Work is proceeding in accordance with the Contract Documents. Observations may extend to all or any part of the Work and to the preparation, fabrications or manufacture of materials. 14.1.3. At a minimum, the CM/GC agrees to submit to the Engineer / azchitect for review and determination for compliance with Contract documents and the Engineer /architect has agreed to monitor for compliance with the Contract Documents, the following: 1. Shop Drawings, Product Data and Samples; 2. Bearing surfaces of excavations before concrete is poured; 3. Reinforcing steel after installation and before concrete is poured; 4. Structural concrete; G: ICPROJEC71AirportlTower ProjectlATCT- CMGC contract2WPD.wpd Page 46 • 5. Laboratory reports on all concrete; 6. Structural steel during and after erection and prior to its being covered or enclosed; 7. Mechanical work following its installation and prior to its being covered or enclosed. 8. Electrical work following its installation and prior to its being covered or enclosed; 9. Compaction testing; and 10. Any special testing required in the Contract Documents. 11. Compliance with applicable Building Codes. 12. Elements of construction relating to the building envelope. 14.1.4. The Engineer /architect will have authority to reject Work which does not conform to the Contract Documents, and to require special inspection or testing whether or not such Work be then fabricated, installed or completed. However, the Engineer /architect's authority to act under this paragraph (14.1.4.) and any decision made by it in good faith either to exercise or not to exercise such authority shall not give rise to any duty on the part of the Engineer /architect to the CM/GC, any subcontractor of any tier, any of their agents or employees, or any other person performing any of the Work. 14.2. SAMPLES AND TESTING 14.2.1. Samples: The CM/GC shall furnish the approval, with such promptness as to cause no delay in its work or in that of The County or any separate Contractor, all Samples as directed by the Engineer /architect. The Engineer /architect shall check and approve such Samples with reasonable promptness, but only for conformance with the design concept of the Work and for compliance with the information given in the Contract Documents. The work shall be uniformly in accordance with approved Samples. 14.2.2. Testing - General: The CM/GC shall provideand/or coordinate all tests called for in the Contract Documents, except for those tests specifically called out in Specifications, Division 1, Section 01400, para. 1.07, "Independent Testing Agency Services," as the responsibility of The County. The CM/GC shall provide such equipment and facilities as the Engineer /architect or The County may require for conducting field tests and for collecting and forwarding of samples. The CM/GC shall not use any materials or equipment represented by samples until tests, if required, have been made and the materials or equipment found to be acceptable. Any materials which become unfit for use after approval thereof shall not be incorporated into the Work. All materials or equipment proposed to be used may be tested at any time during their preparation or use. The CM/GC shall furnish the required samples without charge and shall give sufficient notice of the placing of orders to permit the testing thereof. Products maybe sampled either prior to shipment or after being received at the site of the Work. Tests shall be C: I CPROJEC71Airpa•t I Tower Projec~lATCT- CMGC contracll WPD. wpd Page 47 i ~ made by an accredited testing laboratory. Except as otherwise provided, sampling and testing of all materials, and the laboratory methods and testing equipment shall be in accordance with the latest standazds and testing methods of the American Society of Testing Materials (A.S.T.M.). 14.2.3. Testing -Concrete: Unless amended by a Supplementary General Condition, the testing of concrete shall be at the expense of The County. One copy of each and every test shall be promptly filed with The County, the Engineer / azchitect, and the Structural Engineer. 14.3. OTHER TESTING 14.3.1. If the Contract Documents, laws, ordinances, roles, regulations or orders of any public authority having jurisdiction require any portion of the Work to be inspected, tested or approved, the CM/GC shall give the Engineer / azchitect timely notice of its readiness so The County and the Engineer / azchitect may observe such inspection, testing or approval. The C1VI/GC shall beaz all costs of inspections, tests or approvals which were legally required when this Agreement was executed, and such cost shall be included in the GMP. The County shall bear all costs of inspections, tests, or approvals which may be required thereafter. 14.3.2. If the Engineer / azchitect determines that any Work requires special inspection, testing or approval which Article 14.2. and paragraph 14.3.1. does not include, the CM/GC will, upon written authorization from the Engineer /architect, order such special inspection, testing or approval, and the CM/GC shall give notice as provided in pazagraph 14.3.1. If such special inspection or testing reveals a failure of the Work to comply with the requirements of the Contract Documents, the CM/GC shall bear all direct costs thereof. 14.3.3. Required certificates of inspection, testing, or approval shall be secured by the CM/GC and the CM/GC shall promptly deliver them to The County and the Engineer /architect. 14.4. The cost of any sampling or testing shall be included in the cost of the Work and not the Design or Construction fees. ARTICLE 15 -UNCOVERING AND CORRECTION OF WORK 15.1. COVERING OF WORK 15.1.1. If any portion of the Work should be covered contrary to the reasonable request of the Engineer /architect, or to requirements specifically expressed in the Contract Documents, it must, if required in writing by the Engineer /architect, be uncovered for its observation and shall be replaced at the CM/GC's expense. 15.1.2. If any other portion of the Work has been covered which the Engineer /architect has not specifically requested to observe prior to its being covered, it may request to see such Work and it shall be uncovered by the CM/GC. If such Work is found to be in accordance with the Contract Documents, the cost of uncovering and replacement shall, by appropriate Change Order, be charged G:ICPROJEC71AirportlTower ProjectlATCT- CMGC contract2WPD.wpd Page 48 • to The County. If such Work is found not in accordance with the Contract Documents, the CM/GC shall pay such costs. 15.2. CORRECTION OF WORK 15.2.1. The CNI/GC shall promptly remove from the premises all materials and correct all Work rejected by the Engineer /architect as defective or as failing to conform to the Contract Documents, whether observed before or after Completion of the Work and whether or not fabricated, installed or completed. The CM/GC shall bear all costs of correcting such rejected Work. 15.2.2. If the CM/GC fails to promptly remove rejected materials and/or correct defective or nonconforming Work, The County may remove the same and/or correct it. In such case, an appropriate Change Order shall be issued deducting from the payments then or thereafter due the CM/GC all costs of removing such materials and correcting such deficiencies. If the payments then or thereafter due the CM/GC are not sufficient to cover such amount, the CM/GC shall pay the difference to The County. 15.2.3. If the CM/GC does not promptly remove from the premises all defective or non-conforming materials within a reasonable time fixed by written notice from the Engineer /architect or The County, The County may remove it and store the materials or equipment at the expense of the CM/GC. If the CM/GC does not pay the cost of such removal and storage within fourteen (14) days thereafter, The County may, upon fourteen (14) additional days written notice, sell such work at auction or at private sale, and shall account for the net proceeds thereof, after deducting all the costs that should have been borne by the CM/GC. If such proceeds of sale do not cover all costs which the CM/GC should have borne, the difference shall be chazged to the CM/GC and an appropriate Change Order shall be issued. If the payments then or thereafter due the CM/GC are not sufficient to cover such amount, the CM/GC shall pay the difference to The County within thirty (30) days. 15.2.4 If the CM/GC defaults or neglects to carry out the Work in accordance with the Contract Documents, and fails within seven (7) days after receipt of written notice from The County to commence and continue correction of such default or neglect with diligence and promptness, The County may, and without prejudice to any other remedy The County may have, make good such deficiencies. In such case, an appropriate Change Order shall be issued deducting from the payments then or thereafter due the CM/GC all costs of correcting such deficiencies. If the payments then or thereafter due the CM/GC are not sufficient to cover such amount, the CM/GC shall pay the difference to The County. 15.2.5. The CM/GC shall bear the cost of making good all Work of The County or separate Contractors destroyed or damaged by such correction or removal. L 5.2.6. Should any defective Work or material be discovered during the progress of construction, or should reasonable evidence arise as to whether certain material or Work is in accordance with the Contract Documents, the value of such defective or questioned material or Work shall not be G: ICPROJECTIAirportlTower ProjectlATCT- CMGC contractlWPD.wpd Page 49 included in any Project Application for Payment, or if previously included, shall be deducted by the Engineer /architect from the next Application submitted by the CM/GC. 15.3. ACCEPTANCE OF DEFECTIVE OR NONCONFORMING WORK 15.3.1. If The County prefers to accept defective or nonconforming Work, The County may do so instead of requiring its removal and correction, in which case a Change Order will be issued to reflect a reduction in the GMP. Such adjustment shall be effected whether or not final payment has been made. ARTICLE 16 -COMPLETION OF THE WORK 16.1.1. When the CM/GC considers that the Work or a designated portion thereof is complete as defined in paragraph 2.1, the CM/GC shall notify the Engineer /architect of the Completion of the Work and prepare a list of items to be completed or corrected. 16.1.2. Within ten (10) days after receipt of the CM/GC's notice of Completion of the Work, the Engineer /architect, The County, and the CM/GC shall make an inspection of the Work to determine whether the Work has been completed in accordance with the Contract Documents and to prepare a punch list. If the Work has not been completed to the required stage, the parties shall cease the inspection. If, however, the Work has been completed to the required stage, a punch list shall be prepared by the Engineer /architect and consist of those items listed by the CM/GC to be completed or corrected as supplemented by those items observed and noted during the inspection. The required number of copies of the punch list will be countersigned by the authorized representative of The County and will then be transmitted by the Engineer /architect to the CM/GC. The failure to include any items on such list shall not alter the responsibility of the CM/GC to complete all Work in accordance with the Contract Documents. 16.1.3. When the Engineer /architect, on the basis of the inspection, determines that the Work or designated portion thereof is complete, the Engineer /architect will also then prepare a Certificate of Completion of the Work which shall establish the Date of Completion of the Work, shall state the responsibilities of The County and the CM/GC for security, maintenance, heat, utilities, property insurance premiums, and damage to the Work, and shall fix the time within which the CM/GC shall complete the items listed therein. The Certificate of Completion of the Work shall be submitted to the Project Manager and the CM/GC for their written acceptance of the responsibilities assigned to them in such Certificate. 16.2. RIGHT OF EARLY OCCUPANCY 16.2.1. Subject to the provisions of paragraph 11.4.2., The County shall have the right to take possession of and to use any completed or partially completed portions of the Work, even if the time for Completion of the Work or such portions of the Work has not expired and even if the Work has G:ICPROJECTIAirportlTowerProjectlATCT-CMGCcontract2WPD.wpd Page 50 (~ not been finally accepted. Such possession and use shall not constitute an acceptance of such portions of the Work. 16.2.2. If The County elects to take possession of and to use any completed or partially completed portions of the Work prior to the time for Completion of the Work or portion thereof, prior to any such possession or use, an inspection shall be made by the Engineer /architect, the local jurisdiction, the Project Manager and the CM/GC. Any and all areas so occupied will be subject to a final inspection when the CM/GC complies with Article 16.1. 16.2.3. At the time of the inspection made pursuant to paragraph 16.2.2., the parties shall also agree upon the responsibilities of The County and the CM/GC for security, maintenance, heat, utilities, property insurance premium, and damage to the Work. If the CM/GC can also satisfactorily demonstrate to The County any actual cost for warranties, securities, safety and/or clean-up for the period prior to the date of Notice of Acceptance, The County shall reimburse the CM/GC for that portion of such cost attributable to the portion of the Work occupied by The County for the period of time of such occupancy. In the event the CM/GC believes there will be an additional cost associated with completion of the Work while The County occupies the Work in whole or in part, the CM/GC shall advise The County of all such cost at or before the time of the inspection and an agreement shall be reached on the responsibilities of The County and the CM/GC therefor. If the CM/GC fails or refuses to furnish such cost information as required, the CM/GC hereby waives any and all rights to assert any Claim therefor at any time thereafter. ARTICLE 17 -FINAL COMPLETION, ACCEPTANCE, AND FINAL PAYMENT 17.1. Following the Engineer / azchitect's issuance of the Certificate of Completion of the Work or designated portion thereof, the issuance or a Certificate of Occupancy from the local jurisdiction, and the CM/GC's completion of the work on the punch list established pursuant to paragraph 16.1.2. as may have been supplemented, the CM/GC shall forward to The County a written notice that the Work is ready for final inspection and acceptance, and shall also forwazd to The County a final Project Application for Payment. Upon receipt, The County will forwazd the same to the Engineer / architect, who will promptly make such inspection. When the Engineer /architect finds the Work acceptable under the Contract Documents, the Engineer /architect will issue a Final Certificate of Completion. This Certificate will constitute a representation that, to the best of the Engineer / architect's knowledge, information and belief, and on the basis of observations and inspections, the Work has been completed in accordance with the terms and conditions of the Contract Documents. 17:2. NOTICE OF ACCEPTANCE -When the local jurisdiction has issued a Certificate of Occupancy, Engineer /architect has issued its Final Certificate of Completion, the CM/GC has fully performed all of its obligations under the Contract Documents and the same is acceptable to The County, a Notice of Acceptance shall be issued by The County, which shall establish the acceptance of the Work. G: ICPROJEC71Airportl Tower ProjectlATCT- CMGC contract2WPD.wpd Page 51 CY C~ 17.3. SETTLEMENT 17.3.1. The County shall not authorize final payment until all items on the punch list have been completed, the Engineer /architect issues its Final Certificate of Completion, County has received a Certificate of Occupancy from the local jurisdiction, the Notice of Acceptance is issued, and the Notice of Contractor's Final Settlement Date is published and at least 30 days have expired with no claims filed. 17.3.2. Before The County may advertise, the CM/GC shall: 1. deliver to the Engineer /architect for review by the Engineer /architect and deliver to The County: a. All guaranties and warranties; b. Confirmation that sales taxes from which The County is exempt have not been paid; c. Three (3) complete bound sets of required operations and maintenance manuals and instructions; d. Two (2) sets of as-built drawings; e. To the extent not already furnished, one copy of all corrected Shop Drawings; f. Satisfactory evidence that all payroll, material bills, and other indebtedness connected with the Work have been paid or otherwise satisfied; g. A conditional complete and final waiver and/or release of any and all lien rights and liens from each subcontractor of all tiers, material-men, supplier, manufacturer and dealer for all labor, equipment and material used or furnished by each on the Work; h. Consent of the surety to final payment; i. Any other documents required to be furnished by the Contract Documents; 2. Demonstrate to the operating personnel of The County the proper operation and maintenance of all equipment. 17.3.3. Upon completion of the foregoing, the Contractor's Settlement shall be advertised in accordance with Colorado law. On the date of final settlement thus advertised, and after the G: ICPROJEC71AirportiTower ProjectlATCT- CMGC contractlWPD.wpd Page 52 CM/GC has submitted a written notice to the Engineer /architect that no claims have been filed, final payment and settlement shall be made in full. 17.3.4. If any unpaid claim for labor, materials, rental machinery, tools, supplies, or equipment is filed before payment in full of all sums due the CM/GC, The County shall withhold from the CM/GC sufficient funds to remove such claim in accordance with state law. 17.3.5. The making of final payment, after the Date of the Notice of Contractor Settlement of the Project, shall constitute a waiver of all Claims by The County except those arising from: 1. Unsettled Claims; 2. Faulty or defective work appearing after Completion of the Work; Failure of the Work to comply with the requirements of the Contract Documents; or 4. Terms of any warranties or special warranties required by the Contract Documents. 17.3.6. The acceptance of final payment, after the Date of the Notice of Contractor Settlement of the Project, shall constitute a waiver of all Claims by the CM/GC except those previously made in writing and separately identified by the CM/GC as unsettled in the.final Project Application for Payment. 17.3.7. All provisions of the Contract Documents including without limitation those establishing obligations and procedures, shall remain in full force and effect notwithstanding the making or acceptance of final payment. ARTICLE 18 - WA.1tRANTIES 18.1.1. The CM/GC warrants to The County and the Engineer /architect that all materials and equipment furnished under the Contract Documents will be of good quality, free from faults and defects and in conformance with the Contract Documents. All work not conforming to these requirements, including substitutions not properly approved and authorized, maybe considered defective. If required by the Engineer /architect, the CM/GC shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This warranty is not limited by the provisions of paragraph 18.1.2. 18.1.2. The CM/GC shall warrant and guarantee the Work for a period of one (1) year from the date of the Notice of Acceptance. If, within one year after the Notice of Acceptance, if any of the Work is found to be defective or not in accordance with the Contract Documents, the CM/GC shall correct it promptly after receipt of a written notice from The County to do so unless The County has previously given the CM/GC a written acceptance of such condition. This obligation shall survive both final payment for the Work or designated portion thereof and termination of this Agreement. G: ICPROJEC71AirportlTower ProjectlATCT- CMGC contract2WPD.wpd Page 53 • The County shall give such notice promptly after discovery of the condition and in any event no later than one year after the issuance of the Notice of Acceptance. 18.1.3. In case of Work performed for which other warranties are required by the Contract Documents, the CM/GC shall secure the required warranties and deliver the Sane to The County through the Engineer /architect in accordance with paragraph 17.3.2. These warranties shall not in any way lessen the CNUGC's responsibilities under the Contract Documents. Whenever guarantees or warranties are required by the Contract Documents for a longer period of that one year, such warranty will be transferred to The County after one year. 18.2. GUARANTY INSPECTIONS AFTER COMPLETION 18.2.1. The Engineer /architect, The County, and the CM/GC together shall make at least two (2) complete inspections of the Work after the issuance of the Notice of Acceptance. One such inspection, the "Six-Month Guaranty Inspection," shall be made approximately six (6) months after the issuance of the Notice of Acceptance and another inspection, the "Eleven-Month Guaranty Inspection," shall be made approximately eleven (11) months after the issuance of the Notice of Acceptance. The County shall schedule and so notify all parties concerned, including the local jurisdiction, of these inspections. 18.2.2. Written lists and reports of these inspections shall be made by the CM/GC and forwarded to The County, Engineer /architect, and all of the other participants within ten (10) days after the completion of each inspection. The CM/GC shall initiate such remedial Work as may be necessary to correct any deficiencies or defective Work shown by these reports, and shall promptly complete all such remedial Work in a manner satisfactory to the Engineer /architect and The County. 18.2.3. If the CM/GC fails to promptly correct all deficiencies and defects shown by any report, The County may do so after giving the CM/GC seven (7) days written notice of its intention to do so and The County shall be entitled to collect from the CM/GC and its surety all costs and expenses incurred by it in correcting such deficiencies and defects. ARTICLE 19 -CLAIMS FOR ADDITIONAL COSTS AND DAMAGES 19.1. CLAIMS FOR ADDITIONAL COST 19.1.1. If the CM/GC makes a Claim for an increase in the GMP, the CM/GC shall give The County its written notice of Claim thereof within fourteen (14) days or such other time period as may be specifically set forth elsewhere in this Agreement, whichever is the lesser, after the occurrence of the event giving rise to such Claim and in all cases before proceeding to execute the Work, except in an emergency endangering life or property in which case the CM/GC shall proceed in accordance with paragraph 3.19.10. No such Claim shall be valid unless so made. Any approved change in the GMP resulting from such Claim shall be authorized by Change Order. G: ICPROJR'CTiAirportlTower ProjectlATCT- CMGC contractlWPD.wpd Page 54 ~ ~ 19.1.2. CM/GC claims for additional cost are limited to changes made by written order of The County in the Work which cause the GMP to be exceeded and such fact is conspicuously noted on the document approved by the Board of County Commissioners. 19.2. INJURY TO PERSON OR DAMAGE TO PROPERTY -Should either party to this Agreement suffer injury or damage to person or property because of any act or omission of the other party or of any of the other party's employees, agents, or others for whose acts such party is legally liable, Notice of Claim shall be made in writing to such other party within sixty (60) days after the first observance of such injury or damage. 19.3. COST RECORDS 19.3.1. In all Claims for increases to the Contract Sum or GMP, the CM/GC shall keep a correct account of the extra costs, in such reasonable form as The County may require, and shall present such account, supported by receipts. The County shall be entitled to reject any Claim for extra costs if such documentation is not provided. 19.3.2. Any payments to the CM/GC with respect to Claims for increases in the GMP shall be limited to reimbursement for the additional expenditure by the CM/GC, with costs to be determined in accordance with paragraph 10.2.4. and the CM/GC's fee to be determined in accordance with paragraph 9.3.1. 19.4. RIGHTS AND REMEDIES 19.4.1. The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to, and not a limitation of, any duties, obligations, rights or remedies otherwise imposed or available by law. 19.4.2. No action or failure to act by The County or the Engineer /architect shall constitute a waiver of any right or duty afforded any of them under the Contract Documents nor shall any such action or failure to act constitute an approval or acquiescence in any breach thereunder, except as may be specifically agreed in writing. Nothing herein shall waive or be deemed a waiver of The County's governmental privileges and immunities under federal or state law. 19.5. WRITTEN NOTICE -Written notice shall be deemed to have been duly served if delivered in accordance with Article 2.1.15. of this Contract. ARTICLE 20 -COUNTY'S RIGHT TO TERMINATE CONTRACT 20.1. TERMINATION FOR DEFAULT 20.1.1. General: If the CM/GC should be adjudged bankrupt, or if it should make a general assignment for the benefit of its creditors, or if a receiver should be appointed to take over its G: ICPROJECTIAirportlTower ProjectlATCT- CMGC contract2WPD.wpd Page 55 V affairs, or if it should fail to prosecute the Work with due diligence and carry the Work forward in accordance with its work schedule and time limits set forth in the Contract Documents, or if it should fail to subsequently perform one or more of the provisions of the Contract Documents to be performed by it, The County may serve written notice on the CM/GC and the surety on its Performance and Labor and Material Payment Bonds, stating its intention to exercise one. of the remedies hereinafter set forth and the grounds upon which The County may, without prejudice to any other right or remedy, exercise one of such remedies, at once, having first obtained a statement from the Engineer / acchitect that sufficient cause exists to justify such action. 20.1.2. Conditions and Procedures: 1. The County may terminate the services of the CM/GC, which termination shall take effect seven (7) days from the written notice thereof on the CM/GC. If CM/GC fails to correct the default within said time or commence and continue to correct the default within that time, whereupon the surety shall have the right to take over and perform the Contract (other than by CM/GC). If the surety does not commence performance of the Contract within ten (10) days after service of the Notice of Termination, The County may take over the Work, take possession of and use all materials, tools, equipment, and appliances on the premises, and prosecute the Work to completion by such means as it shall deem best. In the event of such termination of its service, the CM/GC shall not be entitled to any further payment under this Agreement until the Work is completed and accepted. If The County takes over the Work and if the unpaid balance of the Guazanteed Maximum Price exceeds the cost of completing the Work, including compensation for any damages or expenses incurred by The County through default of the CM/GC such excess shall be paid to The County. If, however, the cost, expenses, and damages as certified by the Engineer /architect exceed such unpaid balance of the Guaranteed Maximum Price, the CM/GC and its surety shall pay the difference to The County. 2. The County may take control of the Work and either make good the deficiencies of the CM/GC or employ such additional help as The County deems advisable. In such event The County shall be entitled to collect from the CM/GC and its surety, or to deduct from any payment then or thereafter due the CM/GC, the costs incurred in having such deficiencies made good and any damages or expenses incurred through the default of the CM/GC, provided the Engineer / acchitect approves the amount thus charged to the CM/GC. 3. The County may require the surety on the CM/GC's Performance Bond to take control of the Work at once and see to it that all the G: ICPROJECTIAirportlTower ProjectlATCT- CMGC contractlWPD.wpd Page 56 • • deficiencies of the CM/GC are made good, with due diligence. As between The County and the surety, the cost of making good such deficiencies shall all be borne by the surety. If the surety takes over the Work, either upon termination of the services of the CM/GC or upon instructions from The County to do so, it shall do so other than by or through CM/GC; and the provisions of the Contract Documents shall govern in respect of the Work done by the surety, the surety being substituted for the CM/GC as to such provision, including provisions as to payment for the Work and provisions of this Article as to the right of The County to do the Work or to take control of the Work. 20.2. TERMINATION FOR CONVENIENCE OF COUNTY 20.2.1. The performance of Work under this contract may be terminated, in whole or from time-to- time in part, by The County whenever for any reason The County shall determine that such termination is in the best interest of The County. Termination of Work hereunder shall be effected by delivery to the CM/GC of a Notice of Termination specifying the extent to which performance of Work under the Contract is terminated and the date upon which such termination becomes effective. 20.2.2. After receipt of the Notice of Termination, the CM/GC shall cancel its outstanding commitments hereunder covering the procurement of materials, supplies, equipment, and miscellaneous items unless otherwise assumed by The County in its Notice of Termination. In addition, the CM/GC shall exercise all reasonable diligence to accomplish the cancellation and divert its outstanding commitments covering personal services extending beyond the date of such termination to the extent that they relate to the performance of any Work terminated by the Notice. With respect to such canceled commitments, the CM/GC agrees to: 1. Settle all outstanding liabilities and all claims arising out of such cancellation of commitments, with the approval or ratification of The County, to the extent it may require, which approval or ratification shall be final for all purposes of this clause; and 2. Assign to The County in the manner, at the time, and to the extent directed by The County, all of the right, title, and interest of the CM/GC under the orders and subcontracts so terminated, in which case The County shall have the right, in its discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts. 20.2.3. The CM/GC shall submit its final request for payment to The County promptly after receipt of a Notice of Termination, but in no event later than one (1) month from the effective date thereof. Upon failure of the CM/GC to submit its Final Request For Payment within the time allowed, The County may determine, on the basis of information available to it, the amount, if any, due to the G: ICPROJECTIAirportlTower ProjectlATCT- CMGC contract2WPD.wpd Page 57 C~~ , CM/GC by reason of the termination, and shall pay to the CM/GC the amount so determined within 60 days of the issuance of the Notice. 20.2.4. The CM/GC agrees to transfer title and deliver to The County, in the manner, at the time, and to the extent, if any, directed by The County, such information and items which, if this Agreement had been completed, would have been required to be furnished to The County, including: 1. Completed or partially completed plans, drawings, and information; and 2. Materials or equipment produced or in process or acquired in connection with the performance of the work terminated by the Notice. 3. Any records, data, notes or materials maintained in compliance with this Contract. ARTICLE 21-MISCELLANEOUS PROVISIONS 21.1. Engineer /architect - It is expressly understood that The County shall be directly retaining the services of an Engineer /architect. 21.2. PREFERENCE OF BIDDERS -The selection of bidders shall be in accordance with the laws of Colorado. In the event of the CM/GC's non-compliance with the Colorado labor laws, this Contract maybe canceled, terminated or suspended, in whole or in part, without any liability to The County. 21.3. COLORADO LABOR PREFERENCE -Contractor acknowledges that the Work is a public work financed in whole or in part by funds of the state of Colorado and/or a county, and pursuant to section Title 8-17-101, C.R.S. (1973) Colorado labor shall be employed to perform the Work in the extent of not less than eighty percent (80%) of each type or class of labor in the several classifications of skilled and common labor employed in the Work. For purposes of this provision, "Colorado labor" means "any person who is a resident of the state of Colorado at the time of employment, without discrimination as to race, color, creed, sex, age, or religion except when sex or age is a bona fide occupational qualification." 21.4. EQUAL OPPORTUNITY, DISCRIlVIINATION, AND AFFIRMATIVE ACTION 21.4.1. The CM/GC agrees to comply with the letter and spirit of the Colorado Anti-discrimination Act of 1957, as amended, and other applicable laws respecting discrimination and unfair employment practices, including the standard Federal Assurances attached hereto as Exhibit `2". Pursuant thereto, the following provision shall be contained in all County contracts or subcontracts: during the performance of this Contract, the CM/GC agrees as follows: G: ICPROJEC71AirportlTower ProjectlATCT- CMGC coatract2WPD.wpd Page 58 • • The CM/GC will not discriminate against any employee or applicant for employment because of race, creed, color, national origin, sex, marital status, religion, ancestry, mental or physical disability, or age. The CM/GC will take affirmative action to insure that applicants aze employed and that employees are treated during employment, without regard to the above mentioned characteristics. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising; lay-offs or terminations; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The CM/GC agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth provisions of this non-discrimination clause. 2. The CM/GC will, in all solicitations or advertisements for employees placed by or on behalf of the CM/GC, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, national origin, sex, marital status, religion, ancestry, mental or physical disability, or age. 3. T'he CM/GC will include the provisions of paragraphs 1. through 3. in every subcontract so that such provisions will be binding upon each subcontractor or vendor. 21.4.2. In the event of the CM/GC's non-compliance with the non-discrimination clauses of this Contract, or with any of such laws, rules, regulations, or order, this Contract may be canceled, terminated, suspended in whole or in part, without liability to The County. 21.5. LIENS -Colorado Statutes do not provide for any right of lien against public buildings. In lieu thereof, Title 38-26-107 ct seq. C.R.S., as amended, provides adequate relief for any claimant having furnished labor, materials, rental machinery, tools, equipment or services toward construction of the particular public work in that final payment may not be made to a CM/GC until all such creditors have been put on notice by publication in the public press of such pending payment and given opportunity to stop payment to the CM/GC in the amount of such claims. 21.6. GOVERNING LAW -The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and enforcement of this Contract. Any provision of this Contract, whether or not incorporated herein by reference, which provides for arbitration by an extra judicial body or person, or which is otherwise in conflict with said laws, rules, and regulations, shall be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to negate this or any other special provision in whole or in part shall be valid or enforceable or available in any action at law, whether by way of complaint, defense, or otherwise. All actions shall be brought in the Eagle County District Court. G:ICPROJEC71AirportlTowerProjectlATCT-CMGCcontractlWPD.wpd Page 59 21.7. EXTENT OF AGREEMENT 21.7.1. This Contract with Attachments represents the entire agreement between The County and the CM/GC and supersedes all prior negotiations, representations, or agreements. When drawings, specifications, and work scope letter are complete, they shall be identified by Change Order and incorporated into this Contract by this reference. This Contract maybe amended only by written instrument signed by all signatories hereto. 21.7.2. The invalidity of any one or more of the covenants, phrases, sentences, clauses or provisions of this Contract or any part thereof shall not affect the remaining portions of this Contract or any part thereof and in the event any one of the same shall be declared invalid, this Contract shall be construed as if such invalid portion had not been inserted provided the same does not work substantial injustice. 21.8. BENEFIT AND ASSIGNMENT 21.8.1. This Contract shall be binding upon and inure to the benefit of the parties hereto, their partners, heirs, personal representatives, successors and duly approved assigns. The CM/GC shall not assign the whole or any part of this Contract without the prior written consent of The County, to be exercised in County's sole discretion. No assignment, without said prior approval, shall be valid. It is agreed that the right of the Assignee in and to any moneys due or to become due to the CM/GC shall be subject to all claims of all persons, firms or corporations for services rendered or materials supplied for the performance of the Work called for in this Contract, whether such service of materials were supplied prior to or after the assignment. 21.8.2. CM/GC acknowledges that County is entering into this agreement on behalf of ,and that The County may assign this Agreement to ,and CM/GC accepts such assignment. CM/GC further acknowledges that this Agreement maybe assigned or pledged by The County or by for purposes of financing the Project and CM/GC accepts such assignment. 21.9. VALIDITY OF AGREEMENT -This Contract shall not be deemed valid until it shall have been approved by the Board of County Commissioners and the CM/GC. 21.10. INDEPENDENT CONTRACTOR -The CM/GC shall perform its duties hereunder as an independent contractor and not as an employee. Neither the CM/GC nor any agent or employee of the CM/GC shall be or shall be deemed to be an agent or employee of The County. CM/GC shall pay when due all required employment taxes and income tax withholding, shall provide and keep in force workers' compensation (and show proof of such insurance) and unemployment compensation insurance in the amounts required by law, and shall be solely responsible for the acts of the CM/GC, its employees and agents. 21.11. TITLE TO IlVIPROVEMENTS -Title to the improvements constructed under this agreement shall vest in G: I CPROJECTIAirportlTower ProjectlATCT- CMGC contractlWPD.wpd Page 60 • • IN WITNESS WHEREOF, the parties hereto have executed this Agreement in four (4) counterparts the day and year first above written. ATTEST: to the Board of County Commissioners ATTEST: ~o'~ ~~~ c ~* a ~ ~ By: y: Name, Titl ~!/~ of JernJ f /~iiy/~ Michael L. Gallagher Chairman SHAW CONSTRUCTION, LLC ~~ Clark Atkinson, Vice es;<dent G:ICPROJEC71AirportlTower ProjectlATCT- CMGC contract2WPD.wpd Page 61 ~/ COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS EXHIBIT L STANDARD STATE AND FEDERAL ASSURANCES During the term of this contract, the contractor, for itself, its assignees and successors in interest (hereinafter referred to as the "contractor") agrees as follows: 1. Compliance with Regulations. The contractor shall comply with the Regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation (hereinafter "DOT") Title 49, Code of Federal Regulations, Part 21, as they maybe amended from time to time (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract. 2. Nondiscrimination. The contractor, with regard to the work performed by it during the contract, shall not discriminate on the grounds of race, color, sex, creed or national origin in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The contractor shall not participate either directly or indirectly in the discrimination prohibited by section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations. 3. Solicitations for Subcontractors. Including Procurement of Materials and Equip. I21 all solicitations either by competitive bidding or negotiation made by the contractor for work to be performed under a subcontract, including procurement of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the contractor of the contractor's obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race, color or national origin. 4. Information and Reports. The contractor and all subcontractors shall make and maintain all records concerning the costs and performance of the work. and allow the State or FAA to inspect, examine and audit such records. The contractor shall provide all information and reports required by the Regulations or directives issued pursuant thereto and shall permit access to its books, records, accounts other sources of information, and its facilities as may be determined by the sponsor of the Federal Aviation Administration (FAA) to be pertinent to ascertain compliance with such Regulations, orders, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to famish this information, the contractor shall so certify to the sponsor of the FAA, as appropriate, and shall set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance. In the event of the contractor's noncompliance with the nondiscrimination provisions of this contract, the sponsor shall impose such contract sanctions as it or the FAA may determine to be appropriate, including, but not limited to: a. Withholding of payments to the contractor under the contract until the contractor complies, and/or G: ICPROJEC7lAtrportlTower ProjectlATCT- CMGC contractlWPD. wpd Page 62 b. Cancellation, termination, or suspension of the contract, in whole or in part. 6. Incorporation of Provisions. The contractor shall include the provisions of paragraphs 1 through 5 in every subcontract, including procurement of materials and leases of equipment, unless exempt by the Regulations or directives issued pursuant thereto. The contractor shall take such action with respect to any subcontract or procurement as the sponsor or the FAA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the contractor may request the sponsor to enter into such litigation to protect the interests of the sponsor and, in addition, the contractor may request the United States to enter into such litigation to protect the interests of the United States. G: ICPROJEC71AirportlTower ProjectlATCT- CMGC contract2WPD.wpd Page 63