Press Alt + R to read the document text or Alt + P to download or print.

No preview available

The URL can be used to link to this page

Home My WebLink AboutC05-270 CM/GC AGREEMENT FOR THE MULTIUSE EVENTS CENTER AT THE EAGLE COUNTY FAIRGROUNDS THIS AGREEMENT made this (]~j day in year 2005 between Eagle County, Colorado, acting by and through its Board of County Commissioners ("the County") and Vaughan Construction Company, a company organized and existing by virtue ofthe laws of the State L f Colorado and engaged hereby to serve as Construction Mana~~cr/General Contractor , 'CM/GC"). WHEREAS the County intends to design and construct a Multiuse Events Center at the Eagle County Fairgrounds, with a gross square footage of approximately forty-six thousand (46,000) square feet at a total estimated cost of design and construction in the amount of Two Million One Hundred Thousand Dollars ($2,100,000.00) ("Project"); and WHEREAS the Kenney Associates, LLC, 209 East 4th Street, Loveland, Colorado 80537 (phone 970-663-0548) ("Architect"); and WHEREAS the CM/GC represents to the County that it is authorized to do business in the state of Colorado, and that it has, by virtue of its strong in-house capabilities of budgeting, cost estimating, management, and personnel: the required technical and professional expertise to 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 Multiuse Events Center at the Eagle County Fairgrounds with a gross square footage of approximately fifty thousand (50,000) square feet at a cost estimated not to exceed Two Million One Hundred Thousand Dollars ($2,100,000.00). Said construction and the CM/GC's scope of Work shall not include extension of utilities to the building site. 1.1.2. In the performance of the Work under this Agreement, the CM/GC acknowledges that time is critical for project delivery. 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 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 Architect and CM/GC or an absence of designation, the question shall be submitted to the County for determination. The CM/GC and the Architect shall abide by the decision of the County. If the CM/GC claims any increase in the Work arising by virtue of such decision, it shall follow the procedures as stated in Article 19. 1.1.4. The CM/GC agrees to cooperate fully with the County and Architect in the design and construction aspects of the Work and not exceed the Guaranteed Maximum Price. 1. IS The CM/GC accepts the relationship of trust and confidence established between it and the County hy this Agreement. The CM/GC covenants with the County to furnish its best skill, professionalism, and judgment and to cooperate in furthering the interests ofthe 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. 1.1.6. The CM/GC, the Project Manager, and the Architect (hereinafter called the "Construction Team"), shall work through construction completion. The CM/GC shall provide leadership to the Construction Team on all matters relating to construction. 1.1.7. The Contract Documents shall not be deemed to create any contractual relationship between the 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 Architect or the CM/GC which does not otherwise exist without regard to the Contract Documents. 1.1.8. The CM/GC shall begin services within five days from execution of the Agreement. 1.1.9. Execution ofthis 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 ofthe Contract Documents. 1.1.10. The intent of the Contract Documents is to include all items, components and services necessary for the proper execution and completion of all the Work. The Contract Documents are complementary, and what is required by anyone 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. Ifthere is conflicting variance between the drawings and specifications, the requirements ofthe specifications shall control unless the Architect directs otherwise in writing. Numerous Exhibits developed over a period of time are also attached to and made a part of the Contract Documents, some of which may be in conflict with other Exhibits or portions ofthis Agreement. In the event of any conflict between any ofthe Exhibits or between any of the Exhibits and the other Contract Documents, the greater service, better quality or greater quantity shall be included in the Work, Contract Sum and Guaranteed Maximum Price, without additional compensation. 1.1.11. 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 2 with the highest standards currently practiced by persons and entities performing comparable labor and services on projects similar in size, complexity and cost. 1.1.12. 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 and local building codes, in effect at the time it commences its scope ofthe Work. 1.1.13. The County's consultants (including, but not limited to, all 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: 1. The County's review and/or approval of any construction documents shall not relieve the County's consultant( s) or the CM/GC of the responsibility for any error(s) which may exist, and the County's consultant(s) shall be responsible for the dimensions and design of adequate connections and details for satisfactory construction of all Work. 2. It is the CM/GC's expressed responsibility to review all design and construction documents relating to construct ability and potential conflicts. The purpose of this review is to minimize change orders due to conflicts in the Construction Documents to the greatest extent possible. 3. This paragraph applies to all Construction Documents. 1.1.14. 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. 1.1.15. 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 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 may be 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. 1.1.16. 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. 3 ARTICLE 2 - DEFINITIONS 2.1.1. "Agreement" or "Contract" means this written agreement. 2.1.2. "Architect" means Kenney Associates, LLC or such other professional architect, or group or association or professional corporation of such approved professional architects, engineers and consultants, who have contracted with the County to accomplish the 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, 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 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, 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 exhibits attached hereto: Exhibit A: CM/GC Fee Structure and Construction Schedule Exhibit B: Scope of Work 2.1.8. "Contract Time" means the period of time allotted in the Contract Documents for Completion ofthe Work as defined in paragraph 2.1.5, including authorized adjustments thereto. The Contract Time shall be agreed upon by the County and the CM/GC as part ofthe development of the Contract Documents. The actual contract time shall be determined per Article 6.3.1. and shall be included as an exhibit (Exhibit "B") to this Contract. 2.1.9. "Cost" means the total cost of labor, materials, provisions, supplies, fees, tests, expenses, bonds, equipment rentals, equipment purchases, insurance, supervision, engineering, clerical, and accounting services, the value ofthe 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. 4 2.1.11. "Drawings" means all drawings and specifications reviewed by the County (and approved by the Eagle County Building Department if required by applicable regulations) which have been prepared by the Architect or his consultants showing the Work to be done. 2.1.12. "General Conditions/General Requirements" means those items set forth in the Contract Documents. 2.1.13. "Guaranteed Maximum Price" and "GMP" means 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. 2.1.15. "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: Facilities Management P.O. Box 850 Eagle, Colorado 81631 with a copy to: County Attorney's Office P.O. Box 850 Eagle, Colorado 81631 CM/GC: Vaughan Construction Company 0259 County Road 320 Rifle, Colorado 81650 Whenever in this section notice is required to be given to more than one person on behalf of a party, notice is not deemed given unless given to all such persons. The addresses for notice may be 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 designated to act as the County's representative by the County Administrator. 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 CM/GC. 2.1.19. "Supplier" means any manufacturer, fabricator, distributor, material supplier or vendor. 5 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 Architect; the CM/GC; Eagle County Project Manager; and such additional persons as may be designated by the Project Manager from time to time. ARTICLE 3 - CM/GC'S SERVICES The CM/GC shall perform the following services as set forth in Exhibit B and under this Agreement as described below. 3.1. COMPLETION WITHIN FISCAL AND TIME 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 fully informed and has thoroughly reviewed: the goals ofthe Project; the design ofthe Architect performed to date for the Project; the time schedule as well as fiscal constraints and contingencies of the Project; all ofthe 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 the CM/GC 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 has provided consultation throughout the Design Service Phases through a separate agreement. In cooperation with the Architect and County, the CM/GC shall: 1. Project Construction Budget: Review and monitor the project budget to ensure compliance with the Guaranteed Maximum Price. 2. Value Engineering: Provide technical review and analysis of alternative designs, systems and materials being considered in the construction to produce the greatest value for the least cost. Provide cost estimates of the alternatives evaluated. Cost estimates shall include industry standard operating and maintenance costs (adjusted for Eagle County mountain cost levels) when appropriate to evaluate life-cycle costs of the alternatives. Evaluate the alternatives on the basis of costs, time schedules, availability of labor and materials, construction feasibility, warranties and projected life expectancy. 6 3. Coordination of Contract Documents: Review the drawings and specifications recommending alternative solutions whenever design details affect construction feasibility of schedules. 4. Project Control: Monitor the Work ofthe subcontractors and coordinate the Work with the activities and responsibilities of the County and the Architect to complete the Project in accordance with the construction documents and the County's objectives of cost, time and quality. 5. Organization: Establish on-site organization and lines of authority in order to carry out the overall plans of the Construction Documents. 6. Communication: Establish procedures for coordination among the County, Architect, subcontractors and CM/GC with respect to all aspects ofthe Project and implement such procedures. 7. Scheduling: Schedule and conduct weekly progress meetings at which subcontractors, County, Architect and CM/GC can discuss jointly such matters as 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. 8. Monitoring: Provide regular monitoring ofthe schedule as construction progresses. Identify potential variances with the scheduled Completion Dates. Review schedule for Work not started or incomplete and recommend to the Architect and subcontractors adjustments in the schedule to meet the Completion Date. Provide summary reports of each 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. 9. Cost Control: Develop and monitor an effective system ofproject cost control, showing actual costs for activities in progress and estimates for uncompleted tasks. Incorporate approved changes as they occur. 10. Change Orders: Develop and implement a system for review and processing Change Orders. Recommend necessary or desirable changes to the Architect, review requests for changes, submit recommendations to the Architect and assist in negotiating Change Orders. 11. Permits and Fees: Obtain all building permits and special permits for permanent improvements. 12. 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 Architect, to coordinate and provide general direction of the work and progress of the subcontractors on the Project. The CM/GC superintendent shall not 7 be changed except with the consent ofthe County's Project Manager and the Architect, such consent to not be unreasonably withheld. 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 as if given to the CM/GC. A Project Manager shall be assigned for facilitating the entire project. The County and the 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 ofthe 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 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 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 all other persons. 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 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 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. 13. Safety: The CM/GC shall be responsible for the safety of persons and property and for compliance with all federal, state and local statutes roles, regulations and orders applicable to the conduct of the Work. 14. Design Interpretations: Refer all questions relative to interpretation of design intent to the Architect. 15. Shop Drawings and Samples: In collaboration with the Architect, establish and implement procedures for expediting the processing and approval of shop drawings and samples. 16. Reports and Project Site Documents: Record the daily progress of the Project in a daily log available to the County, Project Manager and the Architect. Submit on a weekly basis written progress reports and summaries of meetings to the County and the Architect, including information on the subcontractors' Work, the actual cost vs. 8 budgeted cost, actual construction point vs. projected schedule point, reasons for any discrepancies, the percentage of completion and the corrective actions to obtain compliance with time and cost schedules. 17. 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 Architect for delivery to the County along with one complete set of "As Built." 18. Project Completion: Determine Project Completion of designated portions of the Work and prepare for the Architect a list of incomplete or unsatisfactory items and a schedule for their completion. 19. Start-Up: With the County's maintenance personnel and/or testing personnel and the Architect, direct the review of utilities, operations systems and equipment for readiness and assist in their initial start-up and testing by the subcontractors. 20. Final Inspection: Provide written notice to the County and Architect that the Work is ready for final inspection. Secure and transmit to the Architect required warranties, certificates, releases, bonds and waivers. Turn over to the County all keys and maintenance stock. 21. 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. 22 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. 23. Bidding: The CM/GC in conjunction with the Architect shall qualify subcontractors and select major subcontractors to enter into a contract as a design build team to obtain the best product and price for the project The CM/GC shall bid subcontractor trades when deemed in the best interest of the project. 24. The CM/GC shall receive any bids as advertised to be opened and duly recorded; prepare bid analyses; and advise Architect and County of successful bidders; and, conduct pre-award conferences with successful bidders. 25. The CM/GC shall provide the requirements and assignment of responsibilities for safety precautions and programs as required for the execution ofthe Work, 9 temporary project facilities and for equipment, materials and services for common use of subcontractors and verify that all are included in the Contract Documents. 3.2 3.2 CONTINGENCY 3.2.1 The CM/GC's contingency for construction shall be equal to three percent (3%) ofthe Initial GMP. The contingency 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) increase in scope due to unknown and unforeseen factors which may adversely affect costs; (c) absorption of costs associated with elements of Work which were missed or overlooked in the review of the shop drawings; and (d) items or components not clearly stated in the construction documents. 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 contingency. 3.2.2. Any and all savings from the differences between the CM/GC's estimated cost of the Work versus the actual cost of subcontractors 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. 3.2.3. The Construction Contingency shall be used as stated in 3.2.1. Expenditures from the Construction Contingency for any matters or Work activities shall be explained and accurately reported monthly to the County. 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 ofthe County and 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 Architect and subcontractors with respect to all aspects ofthe Work and implement such procedures. 3.3.4. The CM/GC shall schedule and conduct progress meetings at which the Project Manager, 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, 10 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 fumishing materials under a contract with the CM/Gc. 3.4.3. The CM/GC shall not be relieved from the CM/GC's obligations to perform the Work in accordance with the Contract Documents either by the activities or duties ofthe Architect in its administration of this Agreement, or by inspections, tests, or approvals required or performed by persons other than the CM/GC. 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. 3.5. ADMINISTRATION OF THE CONTRACT 3.5.1. The Architect will provide administration of this Agreement on behalf of the County unless otherwise specified by County. 3.5.2. All instructions and communications by the Architect to the CM/GC and by the CM/GC to the Architect shall be copied to the County. 3.5.3. The CM/GC shall forward all communications to the Project Manager and the Architect simultaneously. 3.6 SCHEDULE AND COORDINATION 3.6.1. The CM/GC shall schedule and coordinate the work of all of its subcontractors on the Project including their use ofthe site. The CM/GC shall keep the subcontractors informed ofthe Project construction schedule to enable the subcontractors to plan and perform the work properly. 3.6.2. 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 ofthe Work shall be a Critical Path Method system with reasonable detail including a time-scaled network and computer printout all as more fully detailed elsewhere in the Contract Documents. 3.6.3. The CM/GC shall prepare and keep current, for the Architect's approval, a time schedule of submittals which is incorporated in the CM/GC's construction schedule and shall allow the Architect a reasonable time to review such submittals. 3.6.4. The CM/GC's construction schedules and budgets shall be revised monthly with a copy thereof to be submitted with each Project Application for Payment. In addition to the monthly 11 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 Architect. 3.6.5. The CM/GC shall perform the Work within the identified times ofthe most recent schedule and consistent with the established Contract Time. 3.7. COST CONTROL 3.7.1. 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 advise the Project Manager and Architect whenever projected costs are expected to vary from Project Budget or Guaranteed Maximum Price, whichever is applicable. 3.7.2. The CM/GC shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this contract, and the accounting and control systems shall be satisfactory to the County. The CM/GC shall afford the County access to these records at any reasonable time and preserve them for a period of three (3) years after final payment. 3.8. AMENDMENTS AND CHANGE ORDERS 3.8.1. The CM/GC shall develop and implement a system for the preparation and processing of Change Orders consistent with these Contract Documents and recommend necessary or desirable changes to the Architect. 3.9. PERMITS, FEES AND REGULATIONS 3.9.1. The CM/GC shall secure all permits and governmental fees, 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. 3.9.2. 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. 3.10. SALES AND USE TAXES 3.10.1. 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. 3.10.2. 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. I 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. 12 3.1 0.3. No State Sales and Use Taxes are to be paid on material to be used in the Work. 3.10.4. 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 may be. 3.11. COUNTY CONSULTANTS 3.11.1. If required, the CM/GC shall assist the Architect in selecting and retaining the professional services of a surveyor and/or other special consultants, and coordinate these servIces. 3.12. LABOR AND MATERIALS 3.12.1. 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, 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. 3.13. ROYALTIES AND PATENTS 3.13.1. 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 Architect harmless from loss on account thereof. 3.14. DOCUMENTS AND SAMPLES AT THE SITE 3.14.1. 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 recorded copies shall be documented within fourteen (14) days from the date performed in the field and be available to the Architect and the Project Manager. 2. Maintain at the Project site on a current basis a log to record receipt 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, in writing, on a current basis of all changes in the Work made during construction. 3.15. LAYOUT OF WORK 13 The CM/GC shall establish all lines, levels and marks necessary to facilitate the operations of all concerned in such CM/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. 3.16. 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. 3.17. CUTTING AND PATCHING OF WORK 3.17.1. 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. 3.17.2. The CM/GC shall not damage or endanger any portion of the Work or the work ofthe 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 ofthe County or any separate contractor except with the written consent ofthe County and of such other separate contractor. No required consents shall be unreasonably withheld. 3.18. CLEANING UP 3.18.1 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. 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 site concrete, floors, walls, ceilings, windows and doors, and, where necessary, refit windows, doors and millwork. The CM/GC shall also replace all broken and scratched glass and clean all window glass and all plumbing fixtures, also all cracked, broken, and discolored concrete shall be replaced. The CM/GC shall make such minor repairs and alterations in respect to its Work as may be necessary to make the buildings and premises ready for occupancy. 3.19. PROTECTION OF PERSONS AND PROPERTY 3.19.1. The CM/GC shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. 3.19.2. 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 the following: 1. All employees on the Work and all other persons who may be affected thereby; 14 2. All the Work and all materials and equipment to be incorporated therein, whether in storage on or offthe site, under the care, custody or control ofthe CM/GC or any ofthe 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 3.19.3. The CM/GC shall give all notices and comply with all applicable laws, ordinances, rules, 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 Architect and other separate Contractors informed of all of the CM/GC's precautions for safety and protection of the Work. 3.19.4. The CM/GC shall erect and maintain, as required by existing conditions and the progress ofthe 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 County and users of adjacent utilities. 3.19.5. 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 carryon such activities under the supervision of properly qualified personnel. 3.19.6. The CM/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 ofthe 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 ofthe 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. 3.19.7. 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. 3.19.8. 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 ofthem may be liable, and for which the CM/GC is responsible. 15 3.19.9. The CM/GC shall designate a responsible member ofthe 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. 3.19.10. In any emergency affecting the safety of persons or property the CM/GC shall act to prevent threatened damage, injury, or loss. 3.20. START-UP 3.20.1. ACCESS TO WORK - The 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 Architect, Project Manager and County representatives may exercise their rights and perform their functions under the Contract Documents. 3.20.2. NO RESPONSIBILITY FOR ARCHITECT - The CM/GC shall not be responsible for the failure of the Architect or its consultants to properly discharge its duties and responsibilities as set forth in the agreement between the County and Architect. ARTICLE 4 - DRAWINGS AND SPECIFICATIONS 4.1. OWNERSHIP AND USE OF DOCUMENTS 4.1.1. All drawings, specifications, and copies thereof furnished by the County are and shall remain the property ofthe 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 ofthe 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 Architect and County any error, inconsistency, or omission that may be 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 or any of its subcontractors, of any tier, 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 Architect and County in writing. 16 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 Architect, the CM/GC shall assume full responsibility therefore and shall bear all costs attributable thereto. Any modifications or alterations that have to be made because of the above shall be designed by the Architect and approved by the Proj~ct Manager. 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. 4.2.5. It is not the CM/GC's responsibility to guarantee that the Contract Documents are in compliance with applicable laws, statutes, ordinances, building codes, and rules and regulations. However, if the CM/GC observes that portions of the Contract Documents are at variance therewith, the CM/GC shall promptly notify the Architect and County in writing, and necessary changes shall be accomplished by appropriate Modification. 4.3. INTERPRETATIONS 4.3.1. The Architect will be the initial interpreter of the requirements of the Contract Documents and the initial judge of the performance hereunder. 4.3.2. The 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 ofthe 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 Architect of such interpretations and decisions. The CM/GC shall comply with the 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 ofthe 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 Architect, 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 drawings shall contain identifying 17 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 re.quirements 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 Architect's approval of Shop Drawings, Product Data, or Samples unless the CM/GC has specifically informed the Architect in writing of such deviation at the time of submission and the 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 Architect's approval of them. 4.4.7. The CM/GC shall direct specific attention to revisions requested by the Architect, in writing or on resubmitted 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 Architect as provided in paragraph 4.4.9. Work improperly fabricated, whether through incorrect Shop Drawings, faulty workmanship or faulty materials, will not be acceptable unless accepted in writing by the Architect and the County. 4.4.9. The 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 within fourteen (14) working days so as to cause no delay. ARTICLE 5 - THE COUNTY'S RESPONSIBILITIES 5.1 RESPONSIBILITIES 5.1.1. The County's Administrator will designate a Project Manager authorized to act on its behalf with respect to the Project. The CM/GC acknowledges the authority and responsibility of the County and its subsequent delegation of authority to the Project Manager, and consents to such changes and delegation. 5.1.2. The County shall retain an Architect for preparation of the design and Construction Documents for the Project. The architect's services, duties, and responsibilities are described in the agreement between the County and the Architect. 5.1.3. The County or its consultants shall furnish the site of the Project, all necessary surveys describing the physical characteristics, legal limitations, utility locations, and a legal description. 18 6.2.1. Time is of the essence in this Agreement. The CM/GC shall begin the Work within five (5) days of the execution of this Agreement. 6.2.2. The CM/GC shall carry the Work forward expeditiously with adequate forces and shall achieve Completion of the Work within the Contract Time. 6.3. COMPLETION DATE 6.3.1. The date of Completion of the Work shall be Thereafter the same may be revised by mutual agreement ofthe CM/GC 6.4. DELAYS AND EXTENSIONS OF DATE OF COMPLETION OF WORK 6.4.1. Ifthe CM/GC is delayed at any time in the progress ofthe Work by any act or neglect of the County, the 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 may be extended by the County for such period of time as the County may determine based upon the CM/GC's showing ofthe delay to the critical path and that it could not have avoided and cannot avoid the delay by the exercise of due diligence. 6.4.2. 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. If adverse weather conditions are the basis for a claim for a extension ofthe 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. 6.4.3. 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 Architect and the County within five (5) days from the discovery of the delay and shall submit its written claim for extension to the Contract Time within ten (10) 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. 6.4.4. Ifno schedule is prepared by the CM/GC fixing the dates on which various detail drawings and instructions (not including final Construction Documents to be released for construction) will be needed; no extension of the Contract Time will be allowed. 6.5 TEMPORARY SUSPENSION OF WORK 6.5.1. The County 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: 20 5.1.4. The GM/GC will review the soils report, as soon as it is available, and submit to the Architect and County a list of recommendations to assure the building site and other areas being utilized are reviewed thoroughly prior to construction and will not cause any delays to the construction schedule submitted to and accepted by the County. CM/GC is responsible for its deductions from the reports about means and methods but not for differing site conditions as defined in section 10.3. 5.1.5. The County shall secure and pay for necessary approvals, 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 may be required for approvals and decisions by the County-:- ARTICLE 6 - TIME OF COMMENCEMENT AND COMPLETION 6.1. COMMENCEMENT 6.1.1. The Contract Time shall commence upon the execution of the Agreement but no Work shall be performed prior to the delivery of all documents and certificates required to be furnished to the CM/GC unless otherwise agreed to by the Parties. 6.1.2. The commencement of the Construction Phase is expressly conditioned upon and shall not commence until: 1. The Schedule of Values approved and accepted by the County; 2. The date for Completion of the Work 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 approved and accepted by the County; and If any of the preceding conditions to be performed by the County have not been satisfied, by reason of any act or omission, on the part ofthe 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 20.1.3. If any of the preceding material conditions to be performed by the CM/GC, have not been satisfied by reason of any act or omission on the part ofthe CM/GC through no fault of the County, the County 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 and cure such deficiency or deficiencies, and in the event the deficiency or deficiencies are not fully corrected and cured within the ten (10) day period, the County may declare the CM/GC to be in default of this Agreement. 6.2. TIME OF ESSENCE 19 1. Unsuitable weather; 2. Faulty workmanship or material; 3. Improper supervision; 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. 6.5.2. If it should become necessary to suspend the Work for any reason set forth in 6.5.1 for a period exceeding thirty (30) days, the CM/GC shall have the right to terminate this Agreement or renegotiate the Guaranteed Maximum Price to account for increased costs associated with such suspension. Upon such termination, the CM/GC shall be entitled to payment for work completed up to the termination date. 6.5.2. 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. 6.5.3. 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. 6.5.4. CM/GC shall be entitled to recover the direct costs incurred due to a delay caused by a suspension under paragraph 6.5.1. (5) or (6) caused by events outside the control ofCM/GC. 6.6. DELAY DAMAGES 6.6.1. If the CM/GC is delayed at any time in the progress of the Work by the County or by any separate contractor employed by the County; or by labor disputes, fire, unusual delay in transportation, or by delay authorized by the County; the Contract Time Schedule may be extended by Change Order for such reasonable time as the County may determine. All requests for extension of time or claims for extra costs occasioned by delays shall be subject to the County's approval and shall be made in writing to the County no more than five (5) days after the occurrence ofthe delay or event causing the extra cost; otherwise they shall be waived and barred. 6.7 LIQUIDATED DAMAGES 21 6.7.1. 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 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 ofthe damage a delay would cost the County. The CM/GC shal' 'md hereby agrees to pay the County the sum of $250.00 for each and every calendar day (Saturdays, Sundays, and holidays included) that the work or a portion of the work is not completed within the time(s) allotted. 6.7.2. 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. 6.7.3. If the CM/GC fails to substantially complete the Work or any portion of the Work in conformance with the Contract Documents and the Architect and/or the 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. 6.7.4. 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. 6.7.5. The County shall recover liquidated damages by deducting the amount thereof from any moneys 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 ofthe Work that the CM/GC does not perform with its own forces shall be performed under subcontracts by prequalified subcontractors. 7.2 SUBCONTRACTOR PREQUALIFICA TION 7.2.1. The CM/GC shall use as subcontractors for the various major trades, subcontractors who have been prequalified by the CM/GC. 7.3. SUBCONTRACT CONTRACTS 22 7.3.L All subcontracts will be between the CM/GC and the subcontractors. 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. SUB CONTRACTUAL 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 toward 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 thereofwill not prejudice such rights. The CM/GC shall require each subcontractor to enter into similar 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 paragraph 7.6. Each subcontractor shall similarly 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. 7.9 SUBCONTRACTOR CHANGES IN WORK 7.9.1. 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. Cost for changes shall be limited to the following: cost of materials, Including cost of 23 delivery, cost of labor, insurance, and benefits; the rental value of equipment and machinery; mark up for changes in work shall be labor 5 %, and materials 5 %; no other costs or fees will be applicable. ARTICLE 8 - WORK BY COUNTY OR BY SEPARATE CONTRACTORS 8.1. SECTION 8.1 HAS BEEN INTENTIONALLY DELETED BY THE PARTIES. 8.2. COORDINATION To the extent separate Contractors are not assigned to the CM/GC for coordination pursuant to Article 10, the CM/GC will be responsible for the coordination ofthe 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 8.3.3. 8.3. MUTUAL RESPONSIBILITY 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. 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 ofthe 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 already in place and shall promptly report to the 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 Architect and the CM/GC, which shall include contingencies for bidding and construction and other costs. The funds appropriated for this Project are equal to or in excess of the Cost Not to Be Exceeded amount. Notwithstanding anything to the Contrary contained herein, no charges shall be made to County nor shall any payment be made to CM/GC for any work done after December 31, 2005, without the written approval of the County in accordance with a budget adopted by the Board of County Commissioners in accordance with the provisions of Article 25 of Title 30 of the Colorado Revised Statutes and the Local Government Budget Law (C.R.S. 929-1-101 et seq.). 24 9.1.2. The Cost Not to Be Exceeded is $2,100,000.00 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 made available for the Project, it is the obligation ofthe County, CM/GC and 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 $2,100,100.00, as stated in 9.1.2, and such amount shall be incorporated into this Agreement. 9.1.4. Financial obligations ofthe 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 unless mutually agreed to by the parties. No change order or other form of order or directive by the 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 a remedy-granting provision in the Agreement. (In no event shall the failure to appropriate funds subject the County to any liability for costs, fees or services performed by CM/GC or its subcontractors.) 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 One Hundred and Ninety Thousand Dollars (approximately ten percent (10%) of the Guaranteed Maximum Price excluding contractor's fee), which amount shall be part of the overall GMP of $2,100,000.00. 9.2.2. CM/GC's fee shall include all overhead and profit. Overhead shall include all of the CM/GC's off site costs, including, but not limited to, those for management, scheduling, estimating and support of the project. This amount is to include the Cost for 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: 25 . Salaries and other compensation of the General Contractor's personnel stationed at the Contractor's principal office or offices other than the site office; . Expenses of the General Contractor's principal office and offices other than the site office; . Overhead and general expenses; . The General Contractor's capital expenses, Including interest on the General Contractor's capital employed for the Work; . General Contractor profit. 9.3 ADJUSTMENT IN FEE 9.3.1. Adjustments in Fee shall be made as follows: If, after the initial Guaranteed Maximum Price (GMP) is accepted by the County, the County directs additions to or other changes made in the Work, the CM/GC's fee shall be ten percent (10%) excluding bonds and insurance for the additional work. Abandonment or significant reduction in the scope or magnitude ofthe Project will result in a negotiated reduction ofthe fee. 9.3.2. The CM/GC shall also be paid an additional fee at the rate as set forth in paragraph 9.3.1. ifthe CM/GC is placed in charge of the reconstruction of any insured loss. 9.3.3. Compensation paid or due and owing for preconstruction services under that Preconstruction Services Agreement for the Eagle County Fairgrounds Multiuse Events Center between County and CM/GC dated November 16, 2004 shall be considered a part of the Contractor's fee for the Project and the amount of compensation paid under said Preconstruction Agreement shall be reimbursed to County in the form of an offset to future Contractor fees that may become due and owing CM/GC hereunder. 9.4. GUARANTEED MAXIMUM PRICE 9.4.1. It will be the CM/GC's responsibility to maintain a total GMP that does not exceed $2,100,000.00. 9.4.2. The GMP shall include all of the CM/GC's obligations to be performed pursuant to the terms ofthe Contract Documents and include, but not be limited to, all fees as set forth in Section 9.2. and the actual fees and costs as outlined below: 1. Actual wages paid for labor in the direct employ ofthe CM/GC in the are/or other benefits, if any, as may be payable with respect thereto. Ifthese wages are under applicable collective bargaining agreements the termination date of such agreements must be included. 2. Actual salaries of CM/GC's employees when stationed at the field office, in whatever capacity employed. 26 3. Actual 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, if approved in advance by the County. 5. Actual 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. Actual payment made by the CM/GC to subcontractors for work performed pursuant to contract under this Agreement. 7. Actual 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. Actual 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. 9. Cost of the premiums for all bonds and insurance which are required by the Contract Documents. 10. Permit fees, licenses, tests and royalties. 11. Minor expenses such as telegrams, long distance telephone calls, telephone service at the site, expressive and similar petty cash items in connection with the Work. 12. Cost of removal of all debris. 13. Cost incurred due to an emergency affecting the safety of person and property, to the extent not compensated by insurance or otherwise. 14. Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the County. 27 15. All costs directly incurred in the performance of the Work and not included in the CM/GC Fee. 16. 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. 17. 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. 18. Contingencies. 19. Indirect costs (General Conditions). 20. 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. All savings below the GMP shall belong to the County. All costs set forth in 9.4.2 and all other costs of the Work will be provided by the CM/GC at cost, without further markup, and shall be secured through a competitive process whenever possible. 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 ten percent (10 %) 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. contain no conditions or exceptions; 3. any allowances shall be contained in the GMP and approved by the County. 9.4.5. The GMP includes General Conditions/General Requirements. The CM/GC will submit for review and acceptance by County an itemized breakdown of the General Conditions/General Requirements costs for the Project and a line-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 paragraphs 9.2.1. shall be paid monthly based upon detailed invoices 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: The CM/GC shall also submit to Architect a complete, detailed and itemized Schedule of Values allocated to the Work, aggregating the total, such sum to be equal 28 or less than the GMP, supported by such data to substantiate its accuracy as the Architect or the Project Manager may require. The CM/GC's fee shall be set forth as a separate line item. Ten (10) days before submission of the first Project Application for Payment for the construction phase, a conference attended by the CM/GC, Architect and County will be held to finalize the Schedule of Values. The CM/GC's fee shall be paid in proportion to the percent of the Wark 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 ffi'ld no more than three (3) days prior thereto, the CM/GC shall submit to the Architect an itemized Project Application for Payment covering the portion ofthe Work completed as ofthe 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 Architect may require, including invoices from subcontractors, and reflecting retainage, if any, as provided elsewhere in the Contract Documents. The form of Project Application for Payment shall be as furnished by the County. 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 herein or in the Contract Documents, payments will be made on account of materials or equipment not incorporated in the Work but delivered and suitably stored at the site or an approved off-site location approved by County. Payments for materials or equipment stored on the site shall be conditioned upon submission by the CM/GC of bills of sale or such other documents or procedures 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 either by incorporation in the construction or 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. 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 Architect and the County, satisfactory progress is being made in the Work. The withheld percentage ofthe Contract Sum shall be administered according to Titles 24-91-101 through 110 et seq. and 38- 29 26-101 et seq. C.RS., as amended, and shall be retained until final settlement. Any provision to the contrary 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. Notwithstanding the foregoing, no retainage shall be held on the pre-engineered steel building order. 9.5.7. Project Certificate for Payment: The Architect will, within five (5) business 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 Architect reasonably determines are properly due, or notify the CM/GC in writing. 9.5.8. The issuance of a Project Certificate for payment shall constitute a representation by the Architect to the County that based on the Architect'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 Architect's knowledge, information and belief, the quality ofthe 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 Architect has made exhaustive or continuous on-site inspections to check the quality or quantity ofthe 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 Architect has issued a Project Certificate for Payment to the County, 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. The Architect may, on request and at the Architect's discretion, fumish to any subcontractor or supplier, if practicable, information regarding the percentages of completion or the amounts applied for by the CM/GC and the action taken thereon by the Architect on account of work done by such subcontractor or supplier. 9.5.12. Neither the County nor the Architect shall have any obligation to payor to see to the payment of any monies to any subcontractor of any tier or supplier. 30 9.5.13. Payments Withheld: The Architect, 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 Architect's opinion, the Architect is unable to make the representations to the County, as provided in paragraph 9.5.8. Ifthe Architect is unable to make the representations to the County as provided in paragraph 9.5.8., and to certify payment in the amount ofthe Project Application for Payment, the Architect will notify the CM/GC as provided in paragraph 9.5.7. If the CM/GC and the Architect cannot agree on a revised amount, the Architect will promptly issue a Project Certificate for Payment for the amount for which the Architect is able to make such representations to the County. The 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 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 may be necessary to protect the County for loss because of: 1. defective work or material not remedied; 2. claims filed by third parties or reasonable evidence indicating probable filing of such claims; 3. failure ofthe CM/GC to make payments properly to subcontractors, or for labor, materials, or equipment; 4. a reasonable doubt that this Agreement can be completed for the GMP; 5. damage to the County or any separate Contractor; 6. reasonable evidence that the Work will not be completed within the Contract Time; 7. failure to carry out the Work in accordance with the Contract Documents; 8. failure to obtain necessary permits or licenses or to comply with applicable laws, statutes, ordinances, codes, rules or regulations; 9. failure of the CM/GC to keep its Work progressing in accordance with the construction schedule; 10. failure to keep a superintendent on the site; or 11. unauthorized deviations by the CM/GC from the Contract Documents. The County may also decline to pay and the Architect may also decline to so certify or may nullify execution of any prior Project Certificate for Payment, for the CM/GC's failure or refusal to submit any Project schedule or monthly or other periodic update thereto. 31 9.5.14. When the grounds in paragraph 9.5.13. above are removed, payment shall be made for amounts withheld because ofthem within fifteen days (subject to payment procedures pursuant to the trust indenture for the project financing). 9.5.15. No certification of a progress payment, any progress payment, or any partial or entire use or occupancy ofthe Project by the County, shall constitute an acceptance of any Work not in accordance with the Contract Documents. 9.5.16. Final Payment: Final payment shall be paid by the County to the CM/GC pursuant to the provisions of Article 17. 9.5.18. Notwithstanding anything herein to the contrary, a thirty percent (30%) down payment of the steel cost will be due at the time the pre-engineered steel building is ordered. CM/GC shall submit an invoice as set forth herein upon ordering of the steel building. ARTICLE 10 - CHANGES IN THE WORK 10.1. AMENDMENTS AND CHANGE ORDERS 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 Board of County Commissioners, 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 clearly separate the amount attributable to the Cost of the Work and CM/GC's Fee, if any. The GMP and the Contract Time may be 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 Contract 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 Board of County Commissioners, in writing, has authority to require an increase to the Guaranteed Maximum Price. 10.1.4. The value of any change shall be determined by: 32 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 ofthe 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 oflabor, insurance, and benefits; the rental value of equipment and machinery; payments made by the CM/GC to subcontractors for work performed by subcontractors. 10.1.8. The CM/GC shall promptly proceed with the Work involved provided a written Change Order signed by the County is received. 10.1.9. Notwithstanding the provisions of paragraph 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 $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 subparts for the purpose of fitting into one or another of these authorities. 10.2. ADJUSTMENTS IN GUARANTEED MAXIMUM 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 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 inhering in work of the character provided for in the Contract Documents. Failure to so notify the 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 33 Documents whether such operations be by the County 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 may be liable: 1. Claims under workers' compensation, disability benefit and other similar employee benefit acts which are applicable to the Work to be performed; Claims for damages because of bodily injury, occupational sickness or disease, or death of CM/GC's employees; 3. Claims for damages because of bodily injury, sickness or disease or death of any person other than the CM/GC's employees; 4. Claims for damages insured by usual personal injury liability coverage which are sustained (1) by any person, as a result of an offense directly or indirectly related to the employment of such person by the CM/GC, or (2) by another person; 5. Claims for damages, other than to the Work by the County, 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 11.1.2 MINIMUM INSURANCE COVERAGES AND REQUIREMENTS - The CM/GC shall obtain and maintain the minimum insurance coverages set forth below. By requiring such minimum insurance, the 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. 1. 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 * Personal/Advertising Injury 2. Automobile Liability Including all: * Owned Vehicles * Non-Owned Vehicles * Hired Vehicles 34 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. 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. LIMITS 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 Liability: * General Aggregate* $2,000,000 * Products/Completed Operations Aggregate $2,000,000 * Each Occurrence Limit $1,000,000 * Personal/Advertising Injury $1,000,000 * Fire Damage (any One Fire) $1,000,000 *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 11.1.4. ADDITIONAL REQUIREMENTS - CM/GC shall name the County, and its officers, officials, agents and employees as Additional Insurers, 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 the County; 2. Include a Waiver of Subrogation Clause; 3. Include a Severability ofInterest Clause (Cross Liability); 4. Provide that it may not be non-renewed, canceled, materially changed or altered 35 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 carrier, 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 fumish to it, Workers' Compensation Insurance, including occupational disease provisions, for all of the latter's employees, otherwise it accepts full liability and responsibility for subcontractor's employees. 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 11.3 .1. CM/GC shall purchase and maintain Builders' Risk coverage to protect the proj ect. CM/GC shall provide the County a certificate of insurance naming it an additional insured prior to the commencement of construction. ARTICLE 12 - INDEMNIFICATION 12.1.1. To the fullest extent permitted by law, the CM/GC shall indemnify and hold harmless the County and its 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 36 expense (1) is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work by the County), including the loss of use resulting therefrom, and (2) is caused in whole or in part 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 ofthem or anyone for whose acts any ofthem may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder. 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 or any of its consultants, agents, or employees, by any employee of the CM/GC, any subcontractor of any tier, anyone directly or indirectly employed by any ofthem, or anyone for whose acts any ofthem may be 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 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 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 ofthe 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 furnished 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 may be required by the Supplementary Conditions. Said bonds shall be released at the sole direction of the County. 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" as 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 ofthe authority to act. All Bonds must be acceptable to the County. 37 13.1.3. The initial Bonds shall be filed with the County at the time of the County's acceptance ofthe 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 the County. 13.1.5. The premiums for all Bonds to be provided 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 therefore. ARTICLE 14 - ACCESS TO WORK AND OBSERVATION 14.1 OBSERVATION 14.1.1. The 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 Architect 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 Architect for review and determination for compliance with 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; 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; 38 9. Compaction testing; 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 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 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 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. The 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 provide all tests and collect and forward all samples called for in the Contract Documents. The CM/GC shall provide such equipment and facilities as the 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 may be sampled either prior to shipment or after being received at the site of the Work. Tests shall be 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 standards and testing methods ofthe American Society of Testing Materials (A.S.T.M.). 14.3. OTHER TESTING 14.3.1. If the Contract Documents, laws, ordinances, rules, 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 Architect timely notice of its readiness so the County and the Architect may observe such inspection, testing or approval. The CM/GC shall bear all costs of inspections, tests or approvals which were legally required when this Agreement was 39 executed, whether or not yet effective or merely scheduled to go into effect and such cost shall be included in the GMP. 14.3.2. If the Architect 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 Architect, order such special inspection, testing or approval, and the CM/GC ~hall give notice as provided in paragraph 14.3.1. If such special inspection or testing revea~ a failure of the Work to comply with the requirements of the Contract Documents, tile CM/GC shall bear all direct costs thereof, including compensation for the Architect's additional services made necessary by such failure. 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 Architect. 14.4. The cost of any sampling or testing shall be included in the cost of the Work. The cost of such samples and tests shall be the actual cost without any overhead or mark-up and shall be subject to the provisions of 14.3.1. herein above. 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 Architect, or to requirements specifically expressed in the Contract Documents, it must, if required in writing by the 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 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 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 CM/GC shall promptly remove from the premises all materials and correct all Work rejected by the 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, including compensation for the Architect's additional services made necessary thereby. 15.2.2. If the CM/GC fails to 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, including compensation for the Architect's additional services made necessary by such default, neglect or 40 failure. 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 Architect, 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, including compensation for the Architect's additional services made necessary thereby. If such proceeds of sale do not cover all costs which the CM/GC should have borne, the difference shall be charged to the CM/GC and an appropriate Change Order shall be issued. Ifthe 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, after seven (7) days following receipt by the CM/GC of an additional written notice, 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 including compensation for the Architect's additional services made necessary by such default, neglect or failure. 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. 15.2.6. Should any defective Work or material be discovered during the progress of construction, or should reasonable doubt 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 included in any Project Application for Payment, or ifpreviously included, shall be deducted by the Architect from the next Application submitted by the CM/GC. 15.2.7. Nothing contained in this Article 15.2 shall be construed to establish a period of limitation with respect to any other obligation which the CM/GC might have under the Contract Documents, including Article 18 hereof. 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. 41 ARTICLE 16 - COMPLETION OF THE WORK 16.1 WHEN WORK IS COMPLETE 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 Architect of the Completion of the Work. 16.1.2. Within ten (10) days after receipt of the CM/GC's notice of Completion of the Work, the 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 and an appropriate Change Order shall be issued deducting from the payments then or thereafter due the CM/GC all costs associated with such premature inspection, including compensation for the Architect's additional services made necessary thereby. Ifthe 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. If, however, the Work has been completed to the required stage, a punch list shall be prepared by the 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 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 Architect, on the basis ofthe inspection, determines that the Work or designated portion thereof is complete, the 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. 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 ifthe Work has 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 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. 42 16.2.3. At the time of the inspection made pursuant to paragraph 16.2.2., the parties shall also agree upon the responsibilities ofthe 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 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 ofthe Work occupied by the County for the period oftime 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 therefore. 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 therefore at any time thereafter. ARTICLE 17 - FINAL COMPLETION, ACCEPTANCE, AND FINAL PAYMENT 17.1 CERTIFICATE OF COMPLIANCE 17.1.1 Following the Architect'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 forward to the County a final Project Application for Payment. Upon receipt, the County will forward the same to the Architect, who will promptly make such inspection. When the Architect finds the Work acceptable under the Contract Documents, the Architect will issue a Final Certificate of Completion. This Certificate will constitute a representation that, to the best of the Architect's knowledge, information and belief, and on the basis of observations and inspections, the Wark has been completed in accordance with the terms and conditions of the Contract Documents. 17.2. NOTICE OF ACCEPTANCE 17.2.1 When the local jurisdiction has issued a Certificate of Occupancy, 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 ofthe Work. 17.3. SETTLEMENT 17.3.1. The County shall not authorize final payment until all items on the punch list have been completed, the Architect issues its Final Certificate of Completion, the 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: 43 1. deliver to the Architect for review by the 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 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; 1. 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 CM/GC has submitted a written notice to the Architect that no claims have been filed, final payment and settlement shall be made in full. 17.3.4. Pursuant to C.RS. 938-26-107, 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 insure the payment of such claim, until the same shall have been paid or withdrawn, such payment or withdrawal to be evidenced by filing a receipt in full or an order for withdrawal signed by the claimant or its duly authorized agent or assignee. 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: 44 1. Unsettled Claims; 2. Faulty or defective work appearing after Completion of the Work; 3. Failure of the Work to comply with the requirements of the Contract Documents; or f. 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 - WARRANTIES 18.1.1. The CM/GC warrants to the County and the 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, may be considered defective. If required by the 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, or within such longer period of time as may be prescribed by the terms of any applicable special warranty required by the Contract Documents, 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. 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 Same to the County through the Architect. These warranties shall not in any way lessen the CM/GC'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 longer period shall govern. 45 18.1.4. The establishment of the time periods noted in paragraph 18.1.2., or, such longer period of time as may be prescribed by law or by the terms of any warranty required by the Contract Documents, relates only to the specific obligation of the CM/GC to correct the Work, and has no relationship to the time within which the CM/GC's obligation to comply with the Contract Documents may be sought to be enforced, nor the time within which proceedings may be commenced to establish the CM/GC's liability with respect to the CM/GC's obligations other than specifically to correct the Work. 18.2. GUARANTY INSPECTIONS AFTER COMPLETION 18.2.1. The 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 of these inspections. 18.2.2. Written lists and reports ofthese inspections shall be made by the CM/GC and forwarded to the County, Architect, and all of the other participants within ten (10) days after the completion of each inspection. The CM/GC shall immediately 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 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 ten (10) 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, as well as all damages directly resulting from such deficiencies and defects. ARTICLE 19 - CLAIMS FOR ADDITIONAL COSTS AND DAMAGES 19.1. CLAIMS FOR ADDITIONAL COST 19.1.1. The GMP constitutes the totals compensation payable to Contractor for performing the Work. All duties, responsibilities, and obligations assigned to or undertaken by Contractor shall be at his expense without change in the GMP. The GMP may only be changed by a change order. Any claim for an increase in the GMP shall be based on written notice delivered to County and Architect within fifteen (15) days ofthe occurrence ofthe event giving rise to the claim and in all cases before proceeding to execute the Work, except in an emergency endangering life or property. 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. 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. 46 19.2. INJURY TO PERSON OR DAMAGE TO PROPERTY 19.2.1 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 Surn 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 9.4.3 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 hereunder 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 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 hereunder, 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 19.5.1. 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 DEF AUL T 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 affairs, or ifit 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 47 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. 20.1.2. Conditions and Procedures: 1. The County may terminate the services of the CM/GC, which termination shall take effect immediately upon service of notice thereof on the CM/GC and its surety, 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 Guaranteed 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 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 ofthe 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 Architect 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 ofthe Work at once and see to it that all the deficiencies ofthe 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 ofthe Contract Documents shall govem in respect of the Work done by the surety, the surety being substituted for the CM/GC as to such provision, 48 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 ofthe Work. 20.1.3. Termination for Default by County. If County defaults in its requirement to make payment to the CM/GC or other obligations in accordance with the provisions of this Agreement, CM/GC has the right to terminate this Agreement upon serving County with written notice of its intent to do so and providing County with a period of no less than ten (10) days to cure said default. 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. In the event of such termination, Contractor shall be paid for Work performed up through the termination date. 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 for work completed 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 CM/GC by reason of the termination, and shall pay to the CM/GC the amount so determined within 60 days of the issuance ofthe Notice. 49 20.2.4. The County may from time to time, under such terms and conditions as it may prescribe, make partial payment against costs incurred by the CM/GC in connection with the terminated portion of this Contract, whenever, in the opinion ofthe County, the aggregate of such payments is within the amount to which the CM/GC will be entitled hereunder. 20.2.5. 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 A greement had been completed, would have been required to be fhmished to the County, including: 1. Completed or partially completed plans, drawings, and information; 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. Other than the above, any termination inventory resulting from the Termination of this Contract may, with the written approval of the County, be sold or acquired by the CM/GC under the conditions prescribed by and at a price or prices approved by the County. The proceeds of any such disposition shall be applied in reduction of any payments to be made by the County to the CM/GC under this Contract, or shall otherwise be credited to the price or cost of Work covered by this Contract, or paid in such other manner as the County may direct. Pending final disposition of property arising from the termination, the CM/GC agrees to take such action as may be necessary, or as the County may direct, for the protection and preservation ofthe property related to this Contract which is in the possession of the CM/GC, and in which the County has or may acquire an interest. ARTICLE 21 - MISCELLANEOUS PROVISIONS 21.1. ARCHITECT It is expressly understood that the County shall be directly retaining the services of an 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 may be canceled, terminated or suspended, in whole or in part, without any liability to the County. 21.3 LABOR PREFERENCE COLORADO LABOR - 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.RS. (1973) Colorado labor shall be employed to perform the Work in the extent of 50 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. EQU.\L OPPORTUNITY, DISCRIMINATION, AND AFFIRMATIVE ACTION 21.4.1. The GM/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. 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: 1. 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 are 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 payor 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 ofthis 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. The CM/GC will include the provisions of paragraphs 1. through 3. in every subcontract and subcontractor purchase order so that such provisions will be binding upon each subcontractor or vendor. The CM/GC will take such action with respect to any subcontracting or purchase order as the contracting agency may direct, as a means of enforcing such provisions, including sanctions for non-compliance. 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 51 Colorado Statutes do not provide for any right of lien against public buildings. In lieu thereof, Title 38-26-107 ct seq. C.RS., 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 ofthe 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. 21.7. EXTENT OF AGREEMENT 21.7.1. This Contract represents the entire agreement between the County and the CM/GC and supersedes all prior negotiations, representations, or agreements. This Contract may be amended only by written instrument signed by all signatories hereto. 21.7.2. The invalidity of anyone 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 anyone 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 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. 21.9. V ALIDITY 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. 52 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 ofthe CM/GC shall be or shall be deemed to be an agent or employee of ihe 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in four (4) counterparts the day and year first above written. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its ATTEST: COUNTY COMMISSIONERS Clerk to the Board of County Commissioners Chairman ATTEST: Vaughan Construction Company ~ By: BY:C:~ . '/ . Name & Title Name & TItle . G:\BRY AN\miscW aughan Fairground Agreement.DOC 53 Vaughan Construction Company 0259 County Road 320 970.625.3362 Rifle, CO 81650 970.625.4264 Fax August 29, 2005 Bryan Treu Eagle County Attorney's Office 500 Broadway Eagle, Colorado 81631 Dear Bryan: Below is a revised proposed construction schedule for the Eagle County Multi- Use Building at the Eagle County Fairgrounds based on ordering the pre- engineered steel building on Sept. 6. The progression of the pre-construction and construction schedule is shown below. Proposed budget: Building construction, based on Roger Kenney's drawings dated 7/14/2005, is proposed at $2.1 million. The entire project cost, including bringing utilities to the site, is proposed at $2.5 million. Vaughan Construction Company's scope of work does not include extension of utilities to the building site. A 30% down payment of the steel cost will be due at the time the pre-engineered steel building is ordered. Proposed construction schedule Sept. 6, 2005: Order pre-engineered steel building Sept. 26: Receive steel reactions from steel building company Sept. 26 to Oct. 7: Foundation engineering Oct. 11: Apply for building permit. Oct. 25: Receipt of building permit. Oct. 31 to Dec. 2: Excavation and concrete work. Dec. 5 to Jan. 27: Steel erection and C.M.U. veneer. Jan. 30 to March 10 : Interior heat; plywood liner panel; electrical; sprinkler system. March 13 to March 31: Final inspections, clean-up, punchlists. Please note that the start date of our construction critical path will coincide with the date of the issuance of the building permit. Winter conditions likely will apply to the CMU block veneer. If you have any questions, please don't hesitate to contact us. Sincerely, Ted Vaughan Vaughan Construction Company SCOPE OF WORK Site work, including grading for the building pad. Excavation, including footing excavation, backfilling and replacing the gravel around the building approximately 20' around the perimeter ofthe foundation. FumiSi1 and install a complete engineered concrete foundation for the stmcture. Furnish and erect the pre-engineered steel building including the walls and roof insulation. Furnish and install a 8'-8" high masonry wall around the perimeter of the structure. Furnish and install all Overhead Doors as shown on the Architectural drawings. Furnish and install clerestory, vestibule and office windows. Furnish and install fire sprinkler system. Electrical shall consist of all engineered interior lighting, switching, receptacles, service drops for \the arena complete to the exterior of the structure. The extension of the main line service to the building is not included in this contract. HV AC shall consist of gas fired unit heaters in the arena and heat and air conditioning units in the vestibule and offices. The ventilation fans are to be located in the clerestory area and all heating, venting and air conditioning has been designed and engineered. Natural gas piping shall be extended to the exterior ofthe structure for connection to the meter. Main gas line is not included in this contract. Install sand, dirt mixture for the arena. Water and sewer main lines are not included in this contract. We can include the exterior parking lot in our estimate after we receive the drainage engineering drawings. , We can include interior water spigots as needed after receiving drawings. EXHIBIT In ~ D :3