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HomeMy WebLinkAbout2005-134a _ AIA Document A121 ' CMc -- 2003 a A AGC Document 565 Standard Form of Agreement Between Owner and Construction Manager where the Construction Manager is Also the Constructor AGREEMENT made as of the Nineteenth day of Aoril in the year of Two Thousand and Five (In words, indicate day, month and year) This docume it has important Blegal consequences. BETWEEN the Owner: (Name, and address) Consultation with an attorney is encourage with respect to its completio or modification. Indian River County Board of County Commissioners 1840 25t1h Street The 1997 Ed tion of AIA® Vero Beach, Florida 32960 Document 01 TM, General Conditions oi the Contract for and the Construction Manager: Construction is referred to (Name and address) herein. This greement requires modification if other general Turner Construction Company conditions arutilized. 800 North Magnolia Avenue Suite 500 Orlando, Florida 32803 The Project is : (Name, address and brief description) New County Administration Building Lying Between the Main Relief Canal to the North the Lateral D Canal on the South and East and 20th Avenue to the West Two 2 stogy Buildings and associated site work and improvements -, one building consists of approximately 100.00 square feet and contains the offices for Community Development the Utility Department ' Public Works the Commissioners' Meeting Room, the Mail Room, the Offices for the County Administrator, the County Attorney, the Board of County Commissioners the Clerk to the Board the Clerk' s Finance Department, the Office of Budget and Management and computer rooms for both the Clerk and the Board of County Commissioners. The second building consisting of approximately 62,000 square feet and contains offices for the Tax Collector, the Property Appraiser, the Supervisor of Elections the Purchasing Division General Services Department /receiving, Human Resources,`Risk Management the Recreation Department Emergency Services Department Emergency Operations Center. Fire, Prevention, Telecommunications and Computer Services. The Architect is: (Name and address) Donadio & Associates Architects, P .A. 609 17th Street Vero Beach, Florida 32960 The Owner and Construction Manager agree as set forth below: AIA Document A121 TMCMc - 2003 and AGC Document 565. Copyright ® 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING : This document Is protected by U.S. Copyright Law and International Treaties. 1 Unauthorized reproduction or distribution of this document, or any portion of it, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:50:12 on 04/19/200 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. ( 1413727908) User Notes: y TABLE OF CONTENTS ARTICLE 1 GENERAL PROVISIONS 1 . 1 Relationship of the Parties 1 .2 General Conditions ARTICLE 2 CONSTRUCTION MANAGER' S RESPONSIBILITIES § 2.1 Preconstruction Phase § 2.2 Guaranteed Maximum Price Proposal and Contract Time § 2.3 Construction Phase § 2.4 Professional Services § 2.5 Hazardous Materials ARTICLE 3 OWNER'S RESPONSIBILITIES § 3.1 Information and Services § 3.2 Owner' s Designated Representative § 3.3 Architect § 3.4 Legal Requirements 11 ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES § 4.1 Compensation § 42 Payments ARTICLES COMPENSATION FOR CONSTRUCTION PHASE SERVICES § 5.1 Compensation § 5.2 Guaranteed Maximum Price § 5.3 Changes in the Work ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE § 6.1 Costs to Be Reimbursed § 6.2 Costs Not to Be Reimbursed § '6.3 Discounts, Rebates and Refunds § 6.4 Accounting Records ARTICLE 7 CONSTRUCTION PHASE § 7.1 Progress Payments § 7.2Final Payment ARTICLE 8 INSURANCE AND BONDSi § 0.1 Insurance Required of the Construction Manager § 8.2 Insurance Required of the Owner § 8.3 Performance Bond and Payment Bond ARTICLE 9 MISCELLANEOUS PROVISIONS § 9.1 Dispute Resolution § 9.2 ' Other Provisions ARTICLE 10 TERMINATION OR SUSPENSION § 10.1 Termination Prior to Establishing Guaranteed Maximum Price § 10.2 Termination Subsequent to Establishing Guaranteed Maximum Price § 10.3 Suspension ARTICLE 11 OTHER CONDITIONS AND SERVICES AIA Document A121 TMCMc - 2003 and AGC Document 565. Copyright ® 1991 and 2003 by The American Institute of Architects a The Associated 2 General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion a it may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:50:12 on OM19/2 5 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. (1413727908) User Notes: t"r ARTICLE 1 GENERAL PROVISIONS § 1 .1 RELATIONSHIP OF PARTIES The Construction Manager accepts the fiduciary relationship of trust and confidence hereby established wi the Owner by this Agreement, and covenants with the Owner to furnish the Construction Manager' s best skill and judgment and to cooperate with the Architect in furthering the interests of the Owner. The Constr iction Manager shall furnish construction administration and management services and use the Construction Mari ager' s best efforts to perform the Project in an expeditious and economical manner consistent with the interests o the Owner. The Owner shall endeavor to promote harmony and cooperation among the Owner, Architect, Construction Manager and other persons or entities employed by the Owner for the Project. § 1 .2 GENERAL CONDITIONS For the Construction Phase, the General Conditions of the contract shall be the AIA® Document A201TM- 997 , General Conditions of the Contract for Construction, as modified, which is attached and incorporated here' by reference. For.the Preconstruction Phase, or in the event that the Preconstruction and Construction Phases proceed concurrently, A2011m 1997. A201TM- 1997, as modified, shall apply to the Preconstruction Phase only as specifically provided in this Agreement. The term "Contractor" as used in A-2011"'-1997 A201TM- 1997 a modified , shall mean the Construction Manager. ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager shall perform the services described in this Article. The services to be provided under Sections 2. 1 and 2.2 constitute the Preconstruction Phase services . If the Owner and Construction Managei agree, after consultation with the Architect, the Construction Phase may commence before the Preconstruction PI ase is completed, in` which case both phases will proceed concurrently. § 2.1 PRECONSTRUCTION PHASE § 2.1.1 PRELIMINARY EVALUATION The Construction Manager shall provide a preliminary evaluation of the Project budget y - ts e h to ^F di A' er-requirements. § 2,1 .2 CONSULTATION ' The Construction Manager with the Architect shall jointly schedule and attend regular meetings with the C wrier. The Construction Manager shall consult with the Owner and Architect regarding site use and improvements and the selection of materials, building systemsand equipment. The Construction Manager shall provide recomme dations on construction. feasibility; actions, designed to minimize adverse effects of labor or material shortages ; time requirements for procurement, installation and construction completion ; and factors related to construction cost, including estimates of alternative designs or materials, preliminary budgets and possible economies. § 2.1 .3 , PRELIMINARY PROJECT SCHEDULE When Project requirements described in Section 3 . 1 . 1 have been sufficiently identified, the Construction Manager shall prepare, and periodically update, a preliminary Project schedule for the Architect' s review and the 01 iner' s approval. The Construction Manager shall obtain the Architect' s and Owner' s approval of the portion of the preliminary Project schedule relating to the performance of the Architect' s services. The Construction Mai ager shall coordinate and integrate the preliminary Project schedule with the services and activities of the Owner, Ahitect r and Construction Manager. As design proceeds, the preliminary Project schedule shall be updated to indic to proposed activity sequences and durations, milestone dates for receipt and approval of pertinent informati in, submittal of a Guaranteed Maximum Price proposal, preparation and processing of shop drawings and sair ples, delivery of materials or equipment requiring long-lead-time procurement, Owner' s occupancy requiremeni s showing portions of the Project having occupancy priority, and proposed date of Substantial Completion. If prelimi ary Project schedule updates indicate that previously approved schedules may not be met, the Construction Manager shall make appropriate recommendations to the Owner and Architect. § 2.1 .4 PHASED CONSTRUCTION The Construct ion' Manager shall make recommendations to the Owner and Architect regarding the phased issuance of Drawings and Specifications to facilitate phased construction of the Work, if such phased construction i appropriate for the Project, taking into consideration such factors as economies, time of performance, availability of labor and materials, and provisions for temporary facilities . AIA Document A121 TMCMe — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 3 Unauthorized reproduction or distribution of this document, or any portion of It, may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:50:12 on 04/19/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. (1413727908) User Notes: (� V § 2.1 .5 PRELIMINARY COST ESTIMATES § 2. 1 .5. 1 When the Owner has sufficiently identified the Project requirements and the Architect has prepared other basic design criteria, the Construction Manager shall prepare, for the review of the Architect and approval of the Owner, a,preliminary cost estimate utilizing area, volume or similar conceptual estimating techniques. § 2.1 .5.2 When Sehematie Design Dersuments have been pr-epaFed by the AmMteet and appmved by Ube Construetion Manager- shall prepare, 1.16mw dhe Feiriew of the Afehfteet and appreval ef t4e Owner-, a mer-e de aik4 estimate with supper-ting data. During the pr-epar-afieen of dhe Design Develepment Deeuments, the Censtfuefieff Manager- shall update and fefine this estimate at appr-opriate intefvals agreed t"- - Ar-eWteet and § 2.1 .5.3 , thR CANStRIA-6 OR Manager- shall pr-epafe a detailed estifnate with suppeffing data fef review by the Ar-ehitec +aW update and refine this estimate at appropriate inteEvals agreed to by the QwneF, Arehiteet and Censtructiel-A '.41 § 2. 1 .5.4 If any estimate submitted to the Owner exceeds previously approved estimates or the Owner' s budget, the Construction Manager shall make appropriate recommendations to the Owner and Architect. § 2.1 .6 SUBCONTRACTORS AND SUPPLIERS The Construction Manager shall seek to develop subcontractor interest in the Project and shall furnish tote Owner and Architect for their information a list of possible subcontractors, including suppliers who are to furnish materials or equipment fabricated to a special design, Owners cifications of County- wide applicability. or derived from a pre-existing rice and material schedule to a contract between a s cific vendor and Owner or the State of Florida or the United States General Services Administration from whom proposals will be requested for each principal portion of the Work. The Architect will promptly reply in writing to the Construction Manager if the Arch tect or Owner ' know of any objection to such subcontractor or supplier. The receipt of such list shall not require the Owner or Architect to -investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the Owner or Architect later to object to or reject any proposed subcontractor or supplier. § 2.1 .7 LONG-LEAD-TIME ITEMS The Construction Manager, shall recommend to the Owner and Architect a schedule for procurement of to g-leadtime items which will constitute pact of the Work as required to meet the Project schedule. If such long-lead-time items are procured by the Owner, they '.shall be procured on terms and conditions reasonably acceptable to the Construction Managef� Upon Manager and where applicable in accordance with the terms of the[Censtmeden Managef' ssGuamnfeed Maximum Pfiee proposal, all eentf-aets fef such items shall be assigned by Utie Qvfflpw to46 Genstsietion Managef, who shall aceept responsibility for- sueh items as if PT-eeurned by tte . Direct Purchase Procedure section of this contract . The Construction Manager shall expedite the the delivery of long-lead-time items. § 2.1 .8 EXTENT OF RESPONSIBILITY The Construction Manager does not warrant or guarantee estimates and schedules except as may be inclu d as part of the Guaranteed Maximum Price. The recommendations and advice of the Construction Manager concerning design alternatives shall be subject to the review and approval of the Owner and the Owner' s professional consultants. Itis not the Construction Manager' s responsibility to ascertain that the Drawings and Specifications are in accordance with applicable laws, statutes, ordinances, building codes, rules and regulations. However, i the Construction Manager recognizes that portions of the Drawings and Specifications are at variance therewith, the Construction Manager shall promptly notify the Architect and Owner in writing . -writing andspecify such variances . § 2.1 .9 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION IThe Construction. Manager shall comply with applicable laws, regulations and special requirements of the Contract Documents regarding equal employment opportunity and specify such variances. § 2.1 .10 The Construction Manager and . the Owner acknowledge and agree that the Construction Manager may need to apply fora permit from Indian River Coun for the Project prior to th acceptance of the Guaranteed Maximum Price and any such application does not start the Construction Ph se of this Contract. C. A .1# of the *.�er-k as defined in Aftiele 6 of this Agreement is ngEmj1* AIA Document A121 TMCMe — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document Is protected by U.S. Copyright Law and Internatic nal Treaties. 4 Unauthorized reproduction or distribution of this document, or any portion of It, may result in severe civil and criminal penaltie , and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:50:12 on 04/19/2005 under Order No. 1000126313_I which expires on 6/29/2005, and is not for resale. (1413727908) User Notes: IConstruction Manager- for- any oem-tit from Indian Rivef COUntY fbF the Proiect orier- to the aeceptance of heguaranteed Ma*inmm:n42riee-. § 2.2 GUARANTEED MAXIMUM PRICE PROPOSAL AND CONTRACT TIME § 2.2.1'' When the Drawings and Specifications are s� � F�ient1; 100% complete, as certified by the Architect and accepted by the Owner, the Construction Manager shall propose a Guaranteed Maximum Price, which shall be the sum' of' the estimated Cost of the Work and the Construction Manager' s Fee. 2.2.2 As the Drawings and Specifieations may not be finished at the time the guaranteed Maximum P" . is prepared, the ConsiLruetion Manager shall provide in the Guamanteed Maximum P-r-iee for- further- devele .9ment o infer-able there&em. Such fuFther- development does not inelude such things as ehanges in seGpe,-&yAem&-, Idnds and quality of matefials, finishes E)r- equipment, all ef whieh, if Fequir-ed, shall be ineer-per-ated by Change Ofdxr-. § 2.2.3 The estimated Cost of the Work shall include the Construction Manager' s contingency, a sum esta lished by the Construction Manager for the Construction Manager' s exclusive use to cover costs arising under Section 2 2.2. 1 and other costs which are properly reimbursable as Cost of the Work but not the basis for a Change Order. § 2.2.4 BASIS OF GUARANTEED MAXIMUM PRICE The Construction Manager shall include with the Guaranteed Maximum Price proposal a written statemer t of its basis, which shall include; .1 A list of the Drawings and Specifications, including all addenda thereto and the Conditions of the Contract, which. were used in preparation of the Guaranteed Maximum Price proposal. .2 A list of allowances and a statement of their basis. .3 A list of the clarifications and assumptions made by the Construction Manager in the preparation of the Guaranteed Maximum Price proposal to supplement the information contained in the Drawings and Specifications. ,4 The proposed Guaranteed Maximum Price, including the cost of the Work as set forth in Article 6 of this Agreement and a statement of the estimated cost organized by trade categories, allowances, contingency, and other items and the Fee that comprise the Guaranteed Maximum Price, 5 The Date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based, and a schedule of the Construction Documents issuance dates upon which the date of Substantial Completion is based. § 2.2.51 The ConstructionManager shall Momptly meet with the Owner and Architect to review the Guaranteed Maximum Price proposal and the written statement of its basis. In the event that the Owner or Architect ' scover any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construct on Manager, who shall make appropriate. adjustments to the Guaranteed Maximum Price proposal, its basis, or both. § 2.2.6 Unless the Owner accepts the Guaranteed Maximum Price proposal in writing on or before the date specified in the proposal for such acceptance and so notifies the Construction Manager, the Guaranteed Maximum Price proposal shall not beeffeetive without written weeptanee by the Constfaction . ffective. § 2.2.7 Prior to the Owner' s written' acceptance of the Construction Manager' s Guaranteed Maximum Price. proposal and issuance of a Notice to Proceed, the Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work, except as the Owner may specifically authorize in writing. § 2.2.8 Upon acceptance' by the Owner of the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price and its basis shall be set forth in Amendment No. 1 . The Guaranteed Maximum Price shall be subject to additions and deductionsby a change in the Work as provided in the Contract Documents, and the Date of Substantial Completion shall be subject to adjustment as provided in the Contract Documents. § 2.2.9 The Owner shall authorize and cause the Architect to promptly revise the Drawings and Specificat ons to the extent necessary to reflect the agreed-upon assumptions and clarifications contained in Amendment No. 1 . Such revised Drawings and Specifications shall be furnished to the Construction Manager in accordance with s hedules agreed to by the Owner, Architect and Construction Manager. The Construction Manager shall promptly otify the Architect and Owner in writing if such revised Drawings and Specifications are inconsistent with the agr ed-upon assumptions and clarifications . AIA Document A121 TMCMc - 2003 and AGC Document 565. Copyright m 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING : This document is protected by U.S. Copyright Law and Internati nal Treaties. 5 Unauthorized reproduction or distribution of this document, or any portion of IL may result In severe civil and criminal penaltle s, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:50:12 on 04/19/200 5 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. (1413727908) User Notes: `� NOME § 2.2.10 The Guaranteed Maximum Price shall include in the Cost of the Work only those taxes which are m.nacted at the time the Guaranteed Maximum Price is established. § 2.3 CONSTRUCTION PHASE § 2.3. 1 GENERAL § 2.3. 1 .1 The Construction Phase shall commence on the Owner' s written acceptance of the earlier- of- R ) he Owner-' s aee.eptanee of the Genstmetien Manager-' s Guaranteed Maximum Pd �w F and. (-2) the Owner' s fifst authorization to the Genstfuetion Manager- to -i (b) undeftake construction Wof-k with the Construetion , Work-.Constructioik Manager' s Guaranteed Maximum Price proposal and the issuance of a Notice to Proceed. § 2.3.2 ADMINISTRATION § 2.3.2.1 Those, portions of the Work that the Construction Manager does not customarily perform with the Construction Manager' s own personnel shall be performed under subcontracts or by other appropriate agr ements with the Construction Manager. The Construction Manager shall obtain bids from Subcontractors and froi ri suppliers of materials or equipment fabricated to a special design for the Work from the list previously reviewed an , after analyzing such bids, shall deliver such bids to the Owner and Architect, The Owner will then determine, v Fith the advice of the Construction Manager and subject to the reasonable objection of the Architect, which bids ill be accepted. The Owner may designate specific persons or entities from whom the Construction Manager sh 11 obtain bids; however, if the Guaranteed Maximum Price has been established, the Owner may not prohibit the Construction Manager from obtaining bids from other qualified bidders. The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection. § 2.3.21 If the Guaranteed Maximum Price has been established and a specific bidder among those whose bids are delivered by the Construction Manager to the Owner and Architect ( 1 ) is recommended to the Owner by I ie Construction Manager; (2) is qualified to perform that portion of the Work; and (3) has submitted a bid w iich conforms to the requirements of the Contract Documents without reservations or exceptions, but the Own ar requires that another bid be accepted, then the Construction Manager may require that a change in the Work be iss ied to adjust the Contract Time and the Guaranteed Maximum Price by the difference between the bid of the per on or entity: recommended to the Owner by the Construction Manager and the amount of the subcontract or oth r agreement actually signed with the person or entity designated by the Owner. § 2.3.2.3 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a spem.ial design shall conform to the payment provisions of Sections 7 . 1 .8 and 7. 1 .9 and shall not be awarded on the basis of cost plus a fee without the prior written consent of the Owner. § 2.3.2.4 The Construction Manager shall schedule and conduct meetings at which the Owner, Architect, Construction Manager and appropriate Subcontractors can discuss the status of the Work. The Construction Manager shall prepare and promptly distribute meeting ff9*wte�minutes to attendees. § 2.3.2.5 Promptly after the Owner' s acceptance of the Guaranteed Maximum Price proposal, the Construction Manager shall prepare a' schedule in accordance with Section 3 . 10 of A201TM- 1997, as modified, including the Owner' s occupancy requirements. § 2.3.2.6 The Construction Manager shall provide monthly written reports to the Owner and Architect on t ie progress of the entire Work. The Construction Manager shall maintain a daily log containing a record of N reather, Subcontractors working on the site, number of workers, Work accomplished, problems encountered and o Lher similar relevant data as the Owner may reasonably require. The log shall be available to the Owner and A chitect that shall be at least monthly and in writing The Construction Manager acknowledges and Amhiteet—. ai ees that Section 8 .2 .3 of the A201TM- 1997 as modified is applicable in such circumstances. AIA Document A121 TmCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING : This document is protected by U.S. Copyright Law and International Treaties. 6 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:50:12 on 04/ 19/200 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. (1413727908) User Notes: 6 § 2.3.2.7 The Construction Manager shall develop a system of cost control for the Work, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes . The Construction Manager shall identify variances between actual and estimated costs and report the variances to the Owner and Architect at regular intervals. 2.3.2.8 The Construction Manager shall develop and maintain a program; acceptable to the Owner and tf e Architect to assure quality control of the construction. The Construction Manager shall su ervise the Work of all Sub c ntractors providing instructions ,to each when its Work does not conform to the requirements of the plans ands eci (cations and continue to manage each Subcontractor to ensure that corrections are made in a timely manner so as not t affect the progress of the Work. Should disajzreemcnt occur between the Construction Manager and the Architect over acceptability of Work and conformance with the re uirements of the plans andspecifications, the Owner shall be the final Judge of performance and acceptability. § 2.3.2.91 The Construction Manager shall maintain exclusively for the Project a competent ull-time staff at the Project Site to coordinate. and direct the Work and progress of the Subcontractors. All of the Construction Manager' s on-site management and supervisory, ersonnel shall be consistent with the Construction Manager' s interview r sentation and shall not be removed or replaced without the Owner' s consent which consent wil l not be unreasonably withhe d. The Owner shall It ave the right to direct the Construction Manager to remove or replace any on-site personnel whose performance becomes unsatisfactory to the Owner. In' such event the Construction Manager shall promptly replace such Mrso iel. without consideration of any additional compensation for the replacement. 2.3.2'.10 The Construction Manager shall establish on-site organization and lines of authority in order to cau out the overalllaps of construction. The Construction Manager shall identify an on-site staff member to reDreset t the Construction Manager, on a daily basis with authority to negotiate change orders and contract modifications on behalf f the Construction Manager. The'Construction Manager shall make available such executive personnel as necessary to exec u a change orders or other contract modifications on behalf of the Construction Manager so as not to delay the progress of Woj k. 2.3.2.11 The Construction Mana er shall establish procedures for coordination among the Owner. Architect, Subcontractors and Construction Manager with res ct to all aspects of the Work. The Construction Manager shall require of the various Subcontractors coordination drawings as may be necessTy to proWrly coordinate the Wort -, among the Subcontractors. 2.3.2.12 In coordination with the Architect the Construction Manager shall establish and implement procedures for tracking and expediting the processing of shop drawings and samples, as required by the A201TM- 199 as modified . 2.3.2.13 The Construction Manager shall determine the adeguacy of Subcontractors ' pqrsonnel and aqui Iment, and the availability of materials and supRligrito meet the Project Schedule. In consultation with the Owner an Architect the Construction Manager shall take necessary corrective actions when re uirements of a Subcontract or Subcontractor' s schedule are not being met. § 2.4 PROFESSIONAL SERVICES Section 3 . 12. 10 ofA201TM- 1997, as modified. shall apply to both the Preconstruction and Construction Phases. §2.5 HAZARDOUS MATERIALS I- Section 10.3 of A2011M-1_997 A201Tm- 1997, as modified, shall apply to both the Preconstruction and Construction Phases. ARTICLE 3 OWNER'S RESPONSIBILITIES § 3.1 INFORMATION AND SERVICES § 3.1 . 1 The .Owner shall provide full information in a timely manner regarding the requirements of the Proect, including a program which sets forth the Owner' s objectives, constraints and criteria, including space req irements and relationships, flexibility and expandability requirements, special equipment and systems, and site requirernerit re uirements if re nested in writin b the Construction Mana er s cif in the reason for he needed information. AIA Document A121 TuCMe — 2003 and AGC Document 565. Copyright ® 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document Is protected by U.S. Copyright Law and International Treaties. 7 Unauthorized reproduction or distribution of this document, or any portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:50:12 on 04/19/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. (1413727908) User Notes: J �y MENEM PENN § 3. 1 .2 , at the wr-itten fequest of the Construction Managef pr-ior- to commencement of the Constfuction Phase and thelFeafter-, fuFnish to the Genstfuctien Manager- r-easonable evidence that finaneial AM ] blea, a. eand- ition precedent to ceffitineneeme t. reir veentinalat-ion of the Wer-k. After- such evidence has be -a furnished, the Ownef shall net materially vaFy such finaneial arrangements without prieF notiee4e the. Q-- � . Mana §1.1 .3 Th The Owner shall establish and update an overall budget for the Project, based on consultation with the Construction Manager and Architect, which shall include contingencies for changes in the Work and other costs which are the responsibility of the Owner. § 3.1 .4 STRUCTURAL AND ENVIRONMENTAL TESTS, SURVEYS AND REPORTS In the Preconstruction Phase, the Owner shall furnish the following with reasonable promptness and at the Owner ' s expense. Except to the extent that the Construction Mltnager knows of any inaccuracy, the Construction Manager shall be entitled to rely upon the accuracy of any such information, reports , surveys, drawings and tests described in Sections 3 . 1 .4, 1 through 3 . 1 .4.4 but shall exercise customary precautions relating to the performance of the Work. § 3.1 .4.1 Reports, surveys, drawings and tests concerning the conditions of the site which are required by 1 w. §, 3. 1.4.2 Surveys describing physical characteristics, legal limitations and utility locations for the site of th Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, g .-ades and lines of streets, alleys, pavements and adjoining property and structures ; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; loc 'ons, dimensions and necessary data pertaining to existing buildings, other improvements and trees; and inform tion concerning available utility , services and lines, both public and private, above and below grade, including inverts and depths. All information on the survey shall be referenced to a project benchmark. § 3.1.4.3 The services of a geotechnical engineer when such services are requested by the Construction Manager, Such services may include but are not limited to test borings, test pits, determinations of soil bearing value s, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate professional recommendations § 3.1 .4.4 Structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections and reports which are required by law. § 3. 1 .4.5 The services of other consultants when such services are reasonably required by the scope of the Project and are requested by the Construction Managef�Manager are agreed to by the Owner. § 3.2 OWNER'S DESIGNATED REPRESENTATIVE The Owner shall designate in writing a"representative who shall have express authority to bind the Owner with respect to all matters requiring the Owner' s approval or authorization . This representative shall have theauthority to make dee-isiens decisions limited as provided in the Owner' s written authorization, on behalf of the Owner concerning estimates and schedules, construction budgets, and changes in the Work, and shall render such decisions promptly and furnish information expeditiously, so as to avoid unreasonable delay in the services or Work of the Construction Manager Decisions outside of the scope of delegated authority of A2011m 1997 , the Owner' s Representative must be made by Owner. The Architect does not have such authority, § 3.3 ARCHITECT The Owner shall retain an Architect to provide Basic Services, including normal structural, mechanical an electrical engineering services, other than cost estimating services, described in the edition of AIA® Document B .1511M ' 997 " bbre •?U:_a B141Tm- 1997 , Standard Form of Agreement Between Owner and Arehiteelnl , rchitect, as modi led, current as of the date of this Agreement. The Owner shall authorize and cause the Architect to provide those Additional Services described in B11Tu 1997 , B 141TM- 1997 , as modified, requested by the Con trucdon Manager which must necessarily be provided by the Architect for the Preconstruction and Construction Pf ases of the Work. Such services shall be provided in accordance with time schedules agreed to by the Owner, Arc iftect and Construction Manager. Upon request of the Construction Manager, the Owner shall furnish to the Constru tion Manager a copy of the Owner' s Agreement with the Architect, from which compensation provisions may a deleted. AIA Document A121 TMCMc - 2003 and AGC Document 565. Copyright ® 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved, WARNING : This document Is protected by U.S. Copyright Law and International Treaties. 8 Unauthorized reproduction or distribution of this document, or any portion of It, may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:50: 12 on 04/19/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. (1413727908) User Notes: �j (` § 3.4 LEGAL REQUIREMENTS The Owner shall determine and advise the Architect and Construction Manager of any special legal requ ' ements relating specifically to the Project which differ from those generally applicable to construction in the jurisdiction of the Project. The Owner shall furnish such legal services as are necessary to provide the information and services required under Section 3 . 1 . 3.4. 1. Public Disclosure Statement. Any entity entering into a contract with Indian River County as Owner shall disclose any relationship that may exist between the contracting entity and an Indian River County Comr lissioner or Indian River County employee. The relationship with either must be disclosed as follows: Father, other, son daughter, brother sister, uncle aunt, first cousin nephew, niece husband wife father-in-law, mo er-in-law, daughter-in-law, son-in-law brother-in-law sister-in-law, stel2father, stepmother, stepson. ste au hter to brother half brother, 'half sister, grandparent, or grandchild. The term "affiliate" includes those officers directors executivespartners, shareholders employees members and agents who are active in the mans ement o the entity. Construction Manager has made the required disclosure of relationships on the required form attac ied to this Contract and made a part hereof by this reference. I3.4.2. Avaifabili of Funds. The obligations of the Owner under this Contract are subject to the availabil ty of funds lawfullyaparopriated for its Durpose by the Board of County Commissioners of Indian River County. 3.4.3.. No Pledge of Credit. The Construction Manager shall not pledge the Owner' s credit or make it a guarantor of a ment or Buret for any contract debt obligation, judgment, lien or any form of indebtedness. The C nstruction Manager further warrants and represents that it has no obligation or indebtedness that would impair its ability to fulfill the terms of the Contract. I ' 3,4,5, Counterparts. This Contract may be executed in one or more counteEparts. each of which shall be deemed to be an original copy and all of which shall constitute but one and the same instrument. 3.4.6. Survival. Except as otherwise exRressly provided herein each obligation in this Contract to be pe -formed b Construction Manager shall survive the termination or expiration of this Contract. 3.4.7. Notices. Any notice request, demand consent approval. or other communication required or permitLed b this Contract shall be given or made in writing and shall be served as elected by the vgM giving such notice, by an of the following methods: a Hand delivery to the other artb Delivcfy by commercial ovemi ht courier service• or c Mailed by registered or certified mail (postage prepaid), return receipt requested at thea dresses of the parties shown below: Owner • Indian River County_Attn& Steve Blum, Project Manager 1840 25' Street, Vero Beach. FL 32960-3365 Phone's (772) 226- 1531 : Facsimile: (772) 978- 1781 With required copies to: Tom Frame. Director of General Services 184025`b Street, Vero Beach, FL 32960-3365 Phone : (772) : 226- 1223 , Facsimile: (772) 770-5095 and Joe Baird, County Administrator 1840 25`s Street Vero Beach, FL 32960-3365 Phone: (772) 226- 1408 ; Facsimile: (772) 770-5095 Construction Manager: Turner Construction Company Attn : Wade Milligan Vice President — Manager 500 N. Westshore Blvd . . suite 620 Tampa, F133609 Phone: (813 ) 287-9420• Facsimile: (813 ) 287-94239Cellular: (813) 714-0868 Proiect Executive: Turner Construction Company Attn: Thomas Lail 800 North Magnolia Avenue Orlando, F132803 AIA Document A/ 21 TMCMc — 2003 and AGC Document 565. Copyright ® 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document Is protected by U.S. Copyright Law and International Treaties. 9 Unauthorized reproduction or distribution of this document, or any portion of It, may result In severe civil and criminal penalties , and will be prosecuted to the maximum extent possible under the law. This document was produced by AW software at 12:50:12 on 04/1 WOOS under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. (1413727908) User Notes: Notices shall be effective when received at the address ass cified above. Facsimile transmission is acceptable notice effective when receivedprovided, however, that facsimile transmissions received i.e. printed- after 5 : 00 .m. or on weekends or holidays, will be deemed received on the next day that is not a weekend day o a holiday. Either pagy may chane its address for the Rurposes of this section by written notice to the other V ty given in accordance with the provisions of this section. 3.4.8. Florida Produced Lumber. Construction Manager agrees to comply with the provisions of Section 2 55 .20 Florida Statutes as such statute may be, amended from time to time wherein Indian River Counjy as Own m.r must specify lumber, timber and other forest products produced and manufactured in Florida whenever such Products are available and their price. fitness and quality are equal . 3:4.9. Li uidated Damages. Upgn failure of Construction Manager to Substantially Com fete the Contra within the s cified ppriod . of timeplus approved time extensions the Construction Manager shall 12ay to wner the amount of Two Thousand Dollars 2000 for each calendar day after the timespecified, not as a penalt but as liquidated: damages to Owner due to failure of Construction Manager timely to complete the Project. Liqt idated damages in the amount of Two Thousand Dollars 2000 are hereby fixed and agreed upon between the 2gqjM recognizing the im ' ssibilit of Rrecisely ascertaining the amount of damages that will be sustained by O vner as a consequence of such dela and both parties desiring to obviate any question or dispute concerning thea ount of such damages and the cost and effect of the failure of Construction Manager to complete the Contract on ime . Constructi I on Manager and Owner agree that Owner is authorized to deduct all or an portion of the abov -stated li uidated dama es from monies' due to Construction Manager for the Work under this Contract as the ON Pner deems just and reasonable. Construction Manager and Owner further agree that the 1 ' uidated damages are sub ' c to a cap that is equal to one-half M ) of the amount of the final amount of the Construction Manager' s Fee. 3.4.10. Trench Sgifety. FloridaStatutes Section 553 .60 through 553 .64 known as the "Trench Safety Act" requires all contractors'en 91 ged by Indian River County Florida to comply with Occupational Safety and Health Administration' s excavation safety standard, found in 29 C.F.R. s. 1926.650 Subpart P. All prospective subcontractors are re Hired to sign a Trench Safety Act Compliance Statement and 12rovide compliance c st information where indicated. The costs for complying with the Trench Safety Act must be incorporated it ito the Project' s Guaranteed Maximum Price. 3.4.11. Conflict. In the event of any conflict between the provisions of the A 12 1 as modified and the A2 1 as modified the 'provisions of the 'A121 as modified shall control unless otherwise specificallv set forth in ihe Contract Documents, 53.4. 12'. Direct Purchase Procedures. A. Administrative guidelines 'governing the taxability of materials purchased for public works contracts such as the Project under these Contract Documents are contained in Rule 12A- 1 .094 Florida Administrative Code. B . The exemption: in Florida Statutes Section 212.08(6) is a general exemption for sales made directly to the government. A determination whether a particular transaction is Rroperly characterized as an exempt sale o a governmental entity or a taxable sale to or use by a contractor shall be based on the substance of the trans ction rather than the form in which the transaction is cast. The determination of whether the substance of a icular transaction is>. a taxable sale to or use by a contractor or an exempt direct sale to a governmental entity, ba ed on all of the facts and circumstances surrounding the transaction as a whole is ultimately made by the Florida D artment of Revenue . C. The conditions that must be met to satisfy the re uirements of Rule 12A- 1 .094 Florida Administrative ode and establish that Indian River County as Owner rather than the Construction Manager is the purchaser of materials include : AIA Document A121 TMCMc - 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING : This document Is protected by U.S. Copyright Law and Internatic nal Treaties. 10 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties , and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:50:12 on 04/19/2005 under Order No. 1000126313_I which expires on 6/29/2005, and is not for resale. (1413727908) User Notes: �J 1 . Direct Purchase Order. The governmental entity must execute the purchase orders for the tangible pgrsonal property involved in the contract which must include the governmental entity ' s consumer' s certificate of exemnqo number. The contractor may resent the governmental entit ' s urchase orders to the vendors of the tangible personal property; I2. Passage of Title. The governmental entity must acquire title to and assume liability for the tangible Mrsonal ropergoperty at the point in time when it is delivered to the job site up until the time it is incorRorated as real property." 3 Direct Invoice Vendors must directly invoice the governmental entity for supplies : 4. Direct Payment. The governmental entity must directly a the vendors for the tangible 12ersonal properW, and 5 . Assumption 'of the Riskof Loss . The ovemmental entitymust assume all risk of loss or damage for th tangible rsonai pLoNrty involved in the contract as indicated by the entity' s ac uisition of or inclusion as the insured pgM under, insurance on the building_materials, D. The Owner desires to comply with the Direct Purchase Procedures set forth in this section 3 .4. 12 for purchases in an amount not less than 5 000. Construction Manager agrees to cooperate with Owner to enable Owner t comply with the Direct Purchase Procedures set forth in this section 3 .4. 12 for all such purchases. Owner and Cor struction Manager shall coordinate the builder' s risk coverage of each party to comply with the Direct Purchase Procedures set forth in this section 3 .4 . 12 for such purchases. ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES The Owner shall compensate and make payments to the Construction Manager for Preconstruction Phase ervices as follows: § 4.1 COMPENSATION § 4.1 . 1 For the services described in Sections 2 . 1 and 2 .2, the Construction Manager' s compensation shall be calculated as follows : Stipulated sum of $ 177 ,786.00 inclusive of all direct and indirect construction mana er expgnses in the pre. construction phase and 'preparation of the Guaranteed Maximum Price. (State basis of compensation, whether a stipulated sum, multiple of Direct Personnel Expense, actual cost, etc. Include a statement of reimbursable cost items as applicable. ) § 4.1 .2 !Compensation for Preconstruction Phase Services shall be equitably adjusted ) days fiem the date of Ws if the originally contemplated scope of services is significantly modified. § 4. 1 .3 if eempensatien is based on a multiple of Difeet Pefsenne! Expense, Direct PeFsannel Expense i Aned as mandatory and �+dbutiens and benefits f-elated thefete, sueh as empleyment taxes and other- statutory employee benefits, insurance, SIGA leaAFAI holidays, vacations, pensions and sin-tilar- contributions and bene it&. § 4.2 PAYMENTS § 4.2. 1 Payments shall be made monthly following presentation of the Construction Manager' s monthly invoice and, where applicable, shall be in proportion to services performed. All payments are subject to the orovisions of the Florida Prompt Payment Act Florida Statutes section 218 . et. seg . , and Article 9 of A201TM- 1997 as modified . § 4.2.2Me and payable days ffem the date the Construetion Managef ' s invoice is Fee ived by Payments A the Ownen Amounts unpaid aftef the date en is due shall bear- inwest at the Fate entefed belew, or- in (Insen rate of interest agreed upoO AIA Document A121 TMCMc - 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and rhe Associated General Contractors of America All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 11 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:50:12 on 04/19/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. (1413727908) User Notes: / (Usury laws and requirements under- dw FZeder-al Truth in LendingAet; similar state and leealeensumer . . . .. . elsewher-e may affeet the validify of this provision. Legal adiliee should be ebtained with respeet to deletiekis e ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES The Owner shall compensate the Construction Manager for Construction Phase services as follows: § 5.1 COMPENSATION § 5.1 . 1 For the Construction Manager' s performance of the Work as described in Section 2.3 , the Owners all pay the Construction Manager in current funds-the Contract Sum consisting of the Cost of the Work as defined in Article �6 and the Construction Manager' s Fee determined as follows : (State-To be determined as a lump sum, ium based on a percentage of aetealthe Cost of the Work as more fully set forth in Amendment No. 1 . The Owner and Construction Manager acknowledge and agree that the Construction Manager" 's Feel shall not increase under the followin circumstances : 1 Direct Purchases b Owner ursu nt to the Direc1.t ;Purchase Procedures set forth in this Contract: and 2) Changes in the Work that are additive in na e• not due to the fault of the. Construction lylanager: and aggregate less than or ethefp> evisien fefdeter-faining e a ial to $500;000. The Owner and ConstructionManageF' s Fee, Manager acknowledge and explain how-agree th t the Construction l•4anager's,Mana 'er' s Fee is-on the increased Cost of the Work s all increase by one of the methods set forth in section 7 .3 .3 . 1 or section 7 . . 3 .3 of the A201TM--1997 as modified if there are Chanes in the Work that are. additive in nature: not due to the fault of the mak.) Construction Manager, and aggregate more than $500,000: § 5.2 GUARANTEED MAXIMUM PRICE § 5.2. 1 The sum of the Cost of the Work and the Construction Manager' s Fee are guaranteed by the Cons ction Manager not to exceed 'the amount provided in Amendment No. 1 , subject to additions and deductions by changes in the Work as provided in the Contract Documents: Such maximum sum as adjusted by approved changes it , the Work is referred to in the Contract Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Construction Manager without reimbursement by the Owner. is to paFtieipaM in anY ;Yavb1g9-- ) § 5.3 CHANGES IN THE WORK § 5.3. 1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to the execution of Amendment No . 1 may be determined by any of the methods listed in Section 7 .3 . 3 of V947:A201TM-1997. as''modified. § 5.3.2 In calculating adjustments to subcontracts (except those awarded with the Owner' s prior written consent on the basis of cost plus a fee), the terms "cost" and " fee" as used in Section 7. 3 . 3 .3 of20 T�T7-A201Tm1997 as modified, and the terms " costs" and " a reasonable allowance for overhead and profit" as used in Section 7 . . 6 of A20ITm : 1 -997iA201TM- 1997 , as modified, shall have the meanings assigned to them in that document and shall not be modified by this Article 5 . Adjustments to subcontracts awarded with the Owner' s prior written consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts. § 5.3.3 In calculating adjustments to the Contract, the terms "cost" and "costs" as used in the above-referenced provisions of A2011M-1997A201Tm- 1997 , as modified, shall mean the Cost of the Work as defined in Arlicle 6 of AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright ® 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America All rights reserved. WARNING : This document Is protected by U.S. Copyright Law and International Treaties. 12 Unauthorized reproduction or distribution of this document, or any portion of it, may result In severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:50:12 on 04/19/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes: ( 1413727908) C this Agreement, and the term " and a reasonable allowance for overhead and profit" shall mean the Construction Manager' s Fee as defined in Section 5 . 1 . 1 of this Agreement. § 5.3.4 ' M. the case ef changes in the Work, or- if the extent of such ehanges is such, in the aggregate, that applieatien of the a Ijustment pfavisions of Seetieft 5 . 1 . 1 YAill eause substantial inequity te the Ownef- or- Gens"etien Manager-, the Ce stmetion Manager-' s Fee shall be equitably adjusted on the basis of the Fee established fer the er-iginal Wefk. ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE §, 6.1 COSTS TO BE REIMBURSED § 6.1 .1 The term "Cost of the Work" shall mean costs necessarily incurred by the Construction Manager in the proper performance of the Work. Such costs shall be at rates not higher than those customarily paid at the place of the Project except with prior written consent of the Owner. The Cost of the Work shall include only the items set forth in this Article 6. § 6.1 .2 LABOR COSTS .1 ' Wages of construction workers directly employed by the Construction Manager to perform the construction of the Work at the site or, with the Owner' s written agreement, at off-site workshops. .2 Wages or salaries of the Construction Manager' s supervisory and administrative personnel when stationed at the site with the Owner' s written agreement. Classification Name (If it is intended that the wages or salaries of certain personnel stationed at the Constructic n Manager 's principal office or offices other than the site office shall be included in the Cost of the Work, such personnel shall be identified below. ) 3 Wages and salaries of the Construction Manager' s supervisory or administrative personnel Drigaged, at factories, workshops or on the road, in expediting the production or transportation of ma erials or equipment required for the Work, but only for that portion of their time required for the W rk. .4 Costs paid or incurred by the Construction Manager for taxes, insurance, contributions, assessments and benefits required by law or collective bargaining agreements, and, for personnel not covered by such agreements, sick leave, medical and health benefits, holidays, vacations and pensions, provided that such costs are based on wages and salaries included i a the Cost of the Work under Sections 6 . 1 .2 . 1 through 6 . 1 .2.3 . § 6.1 .3 SUBCONTRACT' COSTS Payments made by the Construction' Manager to Subcontractors in accordance with the requirements of this subcontracts . § 6.1 .4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION .1 Costs, including : transportation, of materials and equipment incorporated or to be incorporal ed in the completed construction. .2 Costs of material11 s described in the preceding Section 6. 1 .4. 1 in excess of those actually installed but required to provide reasonable allowance for waste and for spoilage. Unused excess materials, if any, shall be handed over to the Owner at the completion of the Work or, at the Owner' s option, shall be sold by the Construction Manager; amounts realized, if any, from such sales shall be credit d to the Owner as a deduction from the Cost of the Work. § 6.1 :5 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED ITEMS .1 Costs, including transportation, installation, maintenance, dismantling and removal of mate ials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily owne by the construction workers, which are provided by the Construction Manager at the site and fully consumed in the performance of the Work; and cost less salvage value on such items if not fully const med, whether sold to others or retained by the Construction Manager. Cost for items previously used by the Construction Manager shall mean fair market value. .2 Rental charges for temporary facilities, machinery, equipment and hand tools not customarily owned by the construction workers, which are provided by the Construction Manager at the site, whether AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright ® 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document Is protected by U.S. Copyright Law and International Treaties. 13 Unauthorized reproduction or distribution of this document, or any portion of It, may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12 :50:12 on 04/19/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. (1413727908) User Notes: t rented from the Construction Manager or others, and costs of transportation, installation, tr nor repairs and replacements, dismantling and removal thereof. Rates and quantities of equipment rented shall be subject to the Owner' s prior written approval. .3 Costs of removal of debris from the site. ;4 Reproduction costs, costs of telegrams, facsimile transmissions and long-distance telephone calls, postage and express delivery charges, telephone at the site and necessary and reasonable peay cash expenses of the site office. .5 That portion of the necessary and reasonable travel and subsistence expenses of the Constr ction Manager's personnel incurred while traveling in discharge of duties connected with the .Work limited as set forth in Florida Statutes section 112.061 and further provided that no milea2C shall be charged for travel within Indian River County. § 6,1 .6 MISCELLANEOUS COSTS .1 That portion directly attributable to this Contract of premiums for insurance and bondspro ided " however, that foregoing costs shall not be included in calculation of the Cost of the Work for the purpose of the amount of the bonds. Qf charges for self- insurance are to be included, specify the basis of reimbursement. ) .2 Sales, use or similar taxes imposed by a governmental authority which are related to the W rk and for which the Construction Manager is liable.liable subject to the Owner' s use of Direct Purch se Procedures set:forth in the Contract Documents. .3 Pees and assessments for the building permit and €o"ther permits, licenses and inspections for which the Construction Manager is required by the Contract Documents to pay. .4 Fees of testing laboratories for tests required by the Contract Documents, except those related to nonconformingWork ether- thaa that for- whieh payfaent is pefffitted by Seetien 6 . 1 . 8 .2 . Royalties and license fees paid for the use of a particular design, process or pr uct required by the Contract Documents; the necessary and reasonable cost of defending suits or claims for infringement of patent or other intellectual property rights arising from such requirement by the Contract Documents ; payments made in accordance with legal judgments against the Construction Manager resulting from such suits or claims and payments of settlements made with the Owner' s written rconsent; provided, however, that such costs of legal defenses, judgment and settle m nts shall not be included in the calculation of the Construction Manager' s Fee or the Guaranteed Maximum Price and provided that such royalties, fees and costs are not excluded by the last sentence of Section 3 . 17. 1 of A1281TM'— ' rA201TM- 1997, as modified, or other provisions of the Contract Documents. .6 Data processing costs directly related to the Work. .7 Deposits lost for causes other than the Construction Manager' s negligence or failure to fulfi I a specific 'responsibility to the Owner set forth in this Agreement. .8 ,Legal and mediation and at bitmtiefrcosts, other than those arising from disputes between the _ Owner and Construction Manager, reasonably incurred by the Construction Manager in the performance of the Work and with the Owner' srp for written permission, which permission shall not be unreasonably withheld. 9 Expenses incurred in accordance with Construction Manager' s standard personnel policy for actual relocation and temporary living allowances of personnel required for the Work, in case it is necessary to relocate such personnel from distant locations. locations if approved in writing by the Owner in advance. § 6.1 .7 OTHER COSTS A Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the Owner. § 6.1 .8 EMERGENCIES AND REPAIRS TO DAMAGED OR NONCONFORMING WORK The Cost of the Work shall also include costs described in Section 6 . 1 . 1which are incurred by the Construction Manager: .1 In taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property, as provided in Section 10 .6 of A20 1 I 19°TA20ITM– 1997 as modified . .2 OEthe Constfuction Manager-' s Subeentraeters of- suppliers, pr-evided that such damaged of AIA Document A121 TmCMc — 2003 and AGC Document sss. Copyright ® 1991 and 2003 by The American Institute of Architects and Fhe Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and Internatlo rial Treaties. 14 unauthorized reproduction or distribution of this document, or any portion of 1% may result In severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:50: 12 on 04/19/2005 under Order No. 1 0001 26313_1 which expires on 6/29/2005, and is not for resale. (1413727908) User Notes: �l nonconforming er-k was not caused by the negligence or failure to fulfill a spWW^��W ^ W�r �A �bility to the Owner- set ement of the Genstructien Manager- er- the Construction M iagefis of the Genstfuetien Managef, or- the failure of the Censtfuetien Manager-' s personnel to sup i adequately the Work ef the Subeentmeterts or- suppliers, and only to the extent that the eest ef r-epai , suppliers . § 6. 1 .9 The costs described in Sections 6. 1 . 1 through 6. 1 .8 shall be included in the Cost of the Work notwi listanding any provision of AIA or ASTM 199:7 A201TM- 1997 , as modified, other Conditions of the Contract whit i may require the Construction Manager to pay such costs, unless such costs are excluded by the provisions of S ction 6.2. § 62 COSTS NOT TO BE REIMBURSED § 6.2.1 The Cost of the Work shall not include: A Salaries and other compensation of the Construction Manager' s personnel stationed at the Construction Manager' s principal office or offices other than the site office, except as specifically provided in Sections 6. 1 .2.2 and 6. 1 .2.3 . 11.2 . Expenses of theiConstruction Manager' s principal office and offices other than the site office, except as specificallyprovided in Section 6. 1 . ,3 Overhead and general expenses, except as may be expressly included in Section 6. 1 . .4 The Construction ;Manager' s capital expenses, including interest on the Construction Mana er' s capital employed for the Work. ,5 Rental costs of machinery and equipment, except as specifically provided in Section 6 . 1 .5 . . ,6osts due to the negligence of the Constructioi Manager or to the failure of the Construction MangeFMManager to fulfill a specific responsibility to tl a Owner set forth in this Agreement. .7 Costs incurred in the performance of Preconstruction Phase Services . ,8 Except as provided in Section 6. 1 .7 . 1 , any cost not specifically and expressly describrd in Section '6, 1 , .9 Costs which would cause the Guaranteed Maximum Price to be exceeded. § 6.3 DISCOUNTS, REBATES AND REFUNDS § 6.3. 1 Cash discounts ' and other cost savings available to the Construction Manager shall accrue to the Owner if ( 1 ) befere it3g the payfoent, the Genstfuefien Manager- ineluded them in an Application fbE Payin"t and Contractor has received payment therefor from the Owner during the ash discount period and in sufficient time for Contractor to obtain such discounts, or (2) the Owner has deposi led funds with the Construction Manager with which to make payments ; otherwise, cash discounts shall accrue to th Construction Manager. Trade discounts, rebates, refunds and amounts received from sales of surplus mate ' als and equipment shall accrue to the,. Owner, and the Construction Manager shall make provisions so that they call be secured. § 6.3.2 Amounts which accrue. to the Owner in accordance with the provisions of Section 6.3 . 1 shall be credited to the Owner as a deduction from the Cost of the Work. § 6.4 ACCOUNTING RECORDS § 6.4. 1 The Construction Manager shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Contract; the accounting and control systems shall be satisfactory to the Owner. The Owner and the Owner' s accountants shall be afforded access to the Construction Manager' s records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders vouchers, memoranda and other data relating to this Project, and the Construction Manager shall preserve these for a period of three years after final payment, or for such longer period as may be required by law. ARTICLE 7 CONSTRUCTION PHASE § 7.1 PROGRESS PAYMENTS § 7.1 . 1 Based upon Applications for Payment properly submitted to the Architect by the Construction Manager and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the AIA Document A121 TMCMC — 2003 and AGC Document 565. Copyright m 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved WARNING: This document Is protected by U.S. Copyright Law and International Treaties. 15 Unauthorized reproduction or distribution of this document' or any portion of it, may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 1250:12 on 04/19/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. (1413727908) User Notes: t Ff Contract Sum to the Construction Manager as provided below and elsewhere in the Contract tents-.Documents and pursuant to the provisions of the Florida Prompt Payment Act, Florida Statutes section 218 . et. seq . . I § 7.1 .2 The period eever-ed by each ApplicationfOFPayment shall be One ealefldaf Month end fig �� ft, � 1 ^ , + A month,the § 7. 1 .3 Owner- shall make payment to the Genstfuctien Manager- not later- than the day of the month. if an Ap lication fef Payment is reeeived by the Arehiteet after- the applic-ation date fixed above, payfaen! shall be mad. e. J ... not later- than ( ) days after- the Arehiteet receives the Appheation for- Payffl § 7.1 .4 With each Application for Payment, the Construction Manager shall submit payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached and any other evidence required by the Owner or Architect to demonstrate that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or exceed ( 1 ) progress payments already received by the Construction Manager; less (2) that portion of those payments attributable to the Construction Manager ' s Fee ; plus (3) payrolls for the period covered by the present Application for Payment. § 7.1 . 5 Each Application for Payment shall be based upon the most recent schedule of values submitted by the Construction MIanager and approved in writing by the Architect and the Owner in accordance with the Contract Documents. The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Construction Manager' s Fee shall be shown as a single separate item. The schedule of values shall be: prepared. in such form and supported by such data to substantiate its accuracy as the Architect and the Owner may require. This schedule, unless objected to-when and only when, approved in writing by the Ar hitect and the Arehiteet,Owner, shall be used as a basis for reviewing the Construction Manager' s Applications for I layment. § 7.1 .6 Applications for Payment shall slew-set forth the percentage completion of each portion of the Wok that has actually been completed as of the end of the period covered by the Application for Payment. eampletion shall be the lesser- of ( 1 ) the per-eentage of that peffien of the Work whieh has aevM I l . . I �Veleted er (2) the pementage obtained by dividing (a) the expense which has aeltually been ineurfed by the Constmet on Managef en aeepunt of that poi4ion of the Wer-k for- whieh the Construction Managef has made or- intends io make allocated to that portion of the Work in the schedule of values, § 7.1 .7 Subject to other''provisions of the Contract Documents, the amount of each progress payment shall e computed as follows: .1 Ten percent ( 10%) retainage shall be held on all payments until the Contract is fifty percent (50%) complete. With prior written approval by the Owner, certain suppliers and subcontractors r iay be paid the entire amount due when such a payment is generally the practice of industry. At f fty percent (50%) completion, the Owner may approve a reduction of the retainage from ten pe 7cent ( 10%) to five percent (5%) at the Owner' s discretion. Retainage shall not be withheld on t Construction Manager' s Fee until the Cost of the Work has reached ninety percent (90%) c mplete. At ninety percent (90%) complete, the Owner shall retain ten percent ( 10%) of the Construction Manager's Fee and hold such retainage until final payment. There shall be no retainage on the Articles 6. 1 .2, 6.1 .5Iand 6. 1 .6 components of the Cost of the Work upon its eempletion. -Work. -.2 Subtract the aggregate of previous payments made by the Owner. that fixed sum Fee as the Cost of the WoFk in the two preeeding Seetions bear-s to a reason Ae estimate an amount which bear.s is stated Mis a -r4-*ed sum in that Seetion, Manager-! s Seetiens at the fate stated in Seetion 5 . 1 . 1 or-, if desefibed in shall be eemputed upon Managef' s Fee, by the Owner-, suitably siofed off the site at a loeation agreed upon in writing , • Maximum Price has not • et {.__.. .. a: �t_.1 t... Change nr-.1of. .. jam . .. -� - _ � -'a- .2 Take that poEtion of Add that eof4ien of the Guaranteed Ma*imum Pr-iee .12E9Vpdy gligga-ble Guafanteedtt4amifnafnPEicepr-opeflyalleeableteeofnpletedWer-kasdeteF"nedA20ITM 00, of eaeh poi4ien-of the Work. afneunts not in dispute the Quar-algeed Maximum Pr-iWef-k by 2§ Costco AIA Document A121 TMCMc - 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING : This document is protected by U.S. Copyright Law and Internatio al Treaties. 16 Unauthorized_ reproduction or distribution of this document, or any portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:50:12 on 04/19/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes: ( 1413727908) —.3 Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by Section 7 . 1 .4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Owner' s accountants in such documentation. 6—.4 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate r Payment as provided in Section 9.5 of A 011m 1997 . A201TM- 1997, as modified . 5. Subtract amounts if any, being withheld by the Owner as provided in the Contract Documents. § 7.1 .8,' , payments to SUbContEacters shall be subject to rretentie not less than The Owner- and the Constmetien Manager- shall agree upon a mutually acceptable pf-eeedur-e )r- review and approval of payments and retention ibr- subeentf-acts. § 7.1 .9 Except with the Owner ' s prior written approval, the Construction Manager shall not make advancePayments to suppliers for materials or equipment which have not been delivered and stored at the site. § 7.1 . 10 In taking action on the Construction Manager' s Applications for Payment, the Architect and the Owner shall be entitled to rely on the accuracy and completeness of the information furnished by the Construction N"flagef and _eined to represent that the Architect has made a detailed examination, audit of _aFidh___, __ of the doetimentation submitted in aceefdanee with Section 1 . 1 .4 er- other. suppeffing data, that the Arehite �t has made exhaust,ive eE continuous on site inspections er- that the Afebillect has faade examinations to aseeftai , how for what purposes the Constmetion Managef has used amounts previously paid on account of dhe C�11� �Wlo Suph . . .: . . audits . . . . . emain ons ons f-ed by the Owner-, ll be peffeEmed by the QvirneF9s aeeeu tants x . r acting n the sale irate mot of. to ,. n agn :.Mna er. • § 7 .2 FINAL PAYMENT § 7.24 Final payment shall be made by the Owner to the Construction Manager when ( 1 ) the Contract has been fully performed by' the Construction Manager except for the Construction Manager' s responsibility to correct nonconforming Work, as provided in Section 12.2.2 of A201TM- 1997 , as modified, and to satisfy other requirements, #-any,which necessarily survive final payment; (2) a final Application for Payment and a ft ial accounting , for the Cost. of the Work have been submitted by the Construction Manager and reviewed by Owner' s accountants; and (3) a final Certificate for Payment has then been issued by the A _ t�Archit ct for the Owner'sapproval : such final payment shall be made by the Owner not more than 30-25 days after the Owner' s approval of the Architect' s final Certificate for : Pa mens along with pror evidence showing that all suppliers and sub-contractors have been paid, and such request has been presented to reviewed and approved by the Indian River County Board of County Commissioners. § 7.2.2 The amount of the final payment shall be calculated as follows: A Take the sum of the Cost of the Work substantiated by the Construction Manager' s final acc ounting and the Construction Manager' s Fee, but not more than the Guaranteed Maximum Price. .2 Subtractamounts, if any, for which the Architect or Owner withholds, in whole or in part, a final Certificate for Payment as provided in Section 9.5 . 1 of A-2011M 1997 A201TM- 1997 as moU91 or other provisions of the Contract Documents. ,3 Subtract the aggregate of previous payments made by the Owner. If the aggregate of previous payments made by the Owner exceeds the amount due the Construction Manager, the Construction Manager shall reimburse the difference to the Owner. § 7.2.3 YYICUDon theOwner' s direction, the Owner' s accountants will review and report in writing on the Construction Manager' s final accounting within 30 days after delivery of the final accounting to the Archit ct by the Construction Manager. Based upon such Cost of the Work as the Owner' s accountants-Accountants report to be substantiated by the Construction Manager' s final accounting, and provided the other conditions of Sectiof 7 .2 . 1 have been met, the Architect will, within seven days after teeeipt completion of the written report of theOwner' s accountants, , either issue to the Owner a final Certificate for Payment with- y-to the Construction Manager or notify the Construction Manager and Owner in writing of the Architect' s and Owner' s reasons for withholding a certificate as provided in Section 9.5 . 1 of A-201114 1997 . A201TM- 1997 , as modified. The time periods sta ed in this Section 7 .2 supersede those stated in Section 9.4. 1 of A2011M 1997.A201TM-- 1997 . as modified . § 7.2.4 If thecaner disputes the Cost of the-Work as substantiated by the Con truction A4anages Manager' s final accounting to be less than elaimed by the ConstFuctien Manager—, accounting, tl ie Construction Manager shall be entitled to preeeed-assert a claim in accordance with Article decision 4 of the AIA Document A201 - AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright ® 1991 and 2003 by The American Institute of Architects and he Associated General Contractors of America. All rights reserved. WARNING : This document Is protected by U.S. Copyright Law and International Treaties. 17 Unauthorized reproduction or distribution of this document, or any portion of I% may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:50: 12 on 04/19/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. (1413727908) User Notes: I� 1997 as modified . The Owner shall, pending resolution of the disputed amount shall be ma A � Iftir +L� 1� , Manager- within 60 days after- the Genstfuction Manager-' s Feceipt of a eepy of the AEeWteet' s al Cer-tifi late fe any such demand wiflhAn tWs 60 day pefied shall result ill the substantiated afne wt fepefted by the Ownef' s aeeountants beeefrAing binding en the Construction Managen Pending a final r-es lutien e the disputed amount, the Owner- is ute pay the Construction Manager all sum otherwise payable, and not in the " '^t'i 'e"'' " final G„_.: fleate c_ D.,ymen W.dispute, §1.2.5 If, subsequent to final payment and at the Owner' s request, the Construction Manager incurs costs described in Section 6. 1 and not excluded by Section 6.2 ( 1 ) to correct nonconforming Work or (2) arising from the esolution of disputes, the Owner shall reimburse the Construction Manager such costs and the Construction Manager' s Fee, if any, related thereto on the:same basis as if such costs had been incurred prior to final payment, but not in c xcess of the Guaranteed Maximum Price. If the Construction Manager has participated in savings, the amount of st ch savings shall be recalculated and appropriate credit given to the Owner in determining the net amount to b paid by the Owner to the Construction Manager. ARTICLE 8 INSURANCE AND' BONDS § 8:1 INSURANCE REQUIRED OF THE CONSTRUCTION MANAGER During both phases of the Project, the Construction Manager shall purchase and maintain insurance as set forth in Section 11 . 1 of A20ITm 1997 , A201TM-• 1997, as modified. Such insurance shall be written for not less than the following t : - ^wL : ' limits as required by hv"ection 11 . 1 . 1 of A201Tm- 1997 , as modified: § 8.1 . 1 , Compensation and Empleyefs' Liability meeting statutefy lirflits mandated by state and 4efg laws. if ( 1) limAts4A exeess of these required by statute aFe to be provided, of (2) the employer- is not statu mily bound to obtain SmAh insunnee eoveFage of (3) additiena4 co3v ted, additional coverage.- such inwranee shall be as fellmews� § 8.1 .2 '' ' Each Orecumn" n_ener t n ggiregaile Pfeduets Completed Opemiliens Aggregate . 1 Tbe pelisy shall. be endened to have iihe Gen" AggFegalie apply to this Pr-ejeet only-. yeaF(s) Aef either- 90 days following Substantial Completion or- final payment, whieh Yef-is 8n4haF .3 The Gentr-.Aptival tLiabbillis . 4 ..F Ar) I I § 8. 1 .3 Automobile Liaea owned and hired veliieles) for- bodily injury and pfeper-ty V..,.,—gip § 8. 1.4 limim. Gemmereial General Liability andAutemebile Liability limits may be amained by individual pohei Y or- by Liabilily Insurance is io be previtkit, state the limits here. ) § 862: INSURAN E REQUIRED OF THE OWNER DuAng both phases of the Project, the O%mer- shall puf-ehase and. maintain liability and pr-epeFty .... waivefs ef subr-egation, as set forth in Sections 11 .2 and 11 .4 ef A2011W 1997.. Sueh insurance shall be itten fer • AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright ® 1991 and 2003 by The American Institute of Architects and he Associated General Contractors of America. All rights reserved. WARNING: This document Is protected by u.S. Copyright Law and Internalloi lal Treaties. 18 Unauthorized reproduction or distribution of this document, or any portion of it, may result In severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:50:12 on 04/19/2005 inder Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes: (1413727908) I § 8.2. 1 Drnnefty insurance ; Deduetible Der /1.,euFfenee § 8.2.2 ;�=lerMrid Mac-hiner3 ,wrenee with a limit oh Aggregate Deductible (If meta blanket pelk-)�, list the objem to be insur-eti ) § 8.3 PERFORMANCE BOND AND PAYMENT BOND § 8.3. 1 The Construction Manager (Inert " ..hall " Of " shall °` shall furnish bonds covering faithful perft rmance of the Contract and payment of obligations arising thereunder. Bondsxray-The amount of the erformance b nd shall be obtained,-tl eeg#eegual to One hundred twenty-five percent ( 125 .00%) of the Genstfuefien Manager' s worse;an& Cost of the Work as set forth in the Contract Documents. Fomi rose of calculating the amount' of the bonds , the Cost of the Work shall exclude the cost of the ale-bonds. The amount of each-the payment bond shall be, equal to (—�-One hundred percent ( 100.00%) of the Cost of the Work as set forth in the Contract'Surn-Documents . I` § 8.3.2 The Construction Manager shall deliver the required bonds to the Owner at least dwee ,lays befef-e he site.for review prior to recordation. ARTICLE 9 MISCELLANEOUS PROVISIONS § 91 DISPUTE RESOLUTION § 9, 1 .1 1 During:both the 'Preconstruction and Construction Phases, Claims, disputes or other matters in ques on between the parties to this Agreement shall be resolved as provided in Sections 4.3 through 4.6 of A201 097 A201114--1997 , as modified, except that, during the Preconstruction Phase, no decision by the Architect shall be a condition precedent to .mediation. § 9.2 OTHER PROVISIONS ( ' § 9.2.1 illnless otherwise noted, the terms used in this Agreement shall have the same meaning as those in 201TM- 1997 , General Conditions of the Contract for £enstmetien . Construction, as modified. § 9 a 2.2 EXTENT OF CONTRACT This Contract, which includes this Agreement and the other documents incorporated herein by reference, r presents the entire and integrated agreement between the Owner and the Construction Manager and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both the Owner and Construction Manager. If anything in any document incorporated into this Agreement is inconsistent with this Agreement, this Agreement shall govern. §1 9.2.3 'OWNERSHIP AND USE OF DOCUMENTS IArticle 1 . 6 of ' 291T"'—�.9 , A201TM- 1997 , as modified, shall apply to both the Preconstruction and Construction Phases . § 9.2A GOVERNING LAW The Contract shall be governed by the law of the place where the Project is located . § 9.2.5 ASSIGNMENT The Owner and Construction Manager respectively bind themselves, their partners, successors, assigns anc legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other partyin respect; to covenants, agreements and obligations contained in the Contract Documents. Except as rovided in Section 13 .212 of A201T11- 1997 , as modified, neither party to the Contract shall assign the Contract as a whole without written; consent of the other. If either party attempts to make such an assignment without such con ent, that party shall nevertheless remain legally responsible for all obligations under the Contract. AIA Document A121 TMCMc - 2003 and AGC Document 565. Copyright ® 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING : This document is protected by U.S. Copyright Law and Internatiollaf Treaties. 19 Unauthorized reproduction or distribution of this document, or any portion of 1% may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 1250:12 on 04/19/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes: ( 1413727908) 1 ARTICLE 10 TERMINATION OR SUSPENSION 10.1 TERMINATION PRIOR TO ESTABLISHING GUARANTEED MAXIMUM PRICE § 10. 1 .1 Prior to execution by both parties of Amendment No. I establishing the Guaranteed Maximum Price, the Owner may terminate this Contract at any time without cause, and the Construction Manager may terminate this Contract for any of the reasons described in Section 14. 1 . 1 of A2011M 1997 .A201TM- 1997, as modified . § 10.1 .2 If the Owner or Construction Manager terminates this Contract pursuant to this Section 10. 1 prior to commencement of the Construction Phase, the Construction Manager shall be equitably compensated for Preconstruction Phase Services performed prior to receipt of notice of termination; provided, however, that the compensation for such services shall not exceed the compensation set forth in Section 4. 1 . 1 . § 10. 1 .3 If the Owner or Construction Manager terminates this Contract pursuant to this Section 10. 1 after commencement of the Construction Phase, the Construction Manager shall, in addition to the compensation provided in Section 10. 1 .2, be paid an amount calculated as follows: .1 Take the Cost of the Work incurred by the Construction Manager. .2 Add the Construction Manager' s Fee computed upon the Cost of the Work to the date of to 'nation at the rate stated in Section 5 . 1 or, if the Construction Manager' s Fee is stated as a fixed suin in that Section, an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work at the time of termination bears to a reasonable estimate of the probable Cost of the Work upon it completion. .3 Subtract the aggregate of previous payments made by the Owner on account of the Construction Phase. The Owner shall also pay the. Construction Manager fair compensation, either by purchase or rental at the lection of the Owner, fori,any equipment owned by the Construction Manager which the Owner elects to retain and which is not otherwise included in the Cost of the Work under Section 10. 1 .3 . 1 . To the extent that the Owner elects to take legal assignment of subcontracts and purchase orders (including rental agreements), the Construction Man iger shall, as a condition of receiving the payments referred to in this Article 10, execute and deliver all such papers 9, nd take all such steps; including the legal assignment of such subcontracts and other contractual rights of the Construction Manager, as the Owner may require for the purpose of fully vesting in the Owner the rights and benefits o the Construction Manager under such subcontracts or purchase orders. Subcontracts, purchase' orders and rental agreements entered into by the Construction Manager with the Owner' s written approval prior to the execution of Amendment No. 1 shall contain provisions permitting assignmer t to the Owner as described above. If the Owner accepts such assignment, the Owner shall reimburse or indemnify the Construction Manager with respect to all costs arising under the subcontract, purchase order or rental agreement except those which would not have been reimbursable as Cost of the Work if the contract had not been terminated . If the Owner elects not to accept the assignment of any subcontract, purchase order or rental agreement which would have constituted a Cost of the Work had this agreement not been terminated, the Construction Manager shall terminate such subcontract, purchase order or rental agreement and the Owner shall pay the Construction anager the costs necessarily incurred by the Construction Manager by reason of such termination. § 101 TERMINATION SUBSEQUENT TO ESTABLISHING GUARANTEED MAXIMUM PRICE Subsequent to execution by both parties of Amendment No. 1 , the Contract may be terminated as provided in Article 14 of A20IT*'9r:A201TM- 1997, as modified. § 10.2. 1 In the event of such termination by the Owner, the amount payable to the Construction Manager pt rsuant to Section 14. 1 .3 of A201T'-1997 A201TM- 1997, as modified, shall not exceed the amount the Construction Vanager would have been entitled to receive pursuant to Sections 10. 1 .2 and 10. 1 .3 of this Agreement. § 10.2.2' In the event of such termination by the Construction Manager, the amount to be paid to the Constn ction Manager under ' Section 14. 1 .3 of A2011M 1997 A201TM-1997 , as modified, shall not exceed the amount the Construction Manager would have been entitled to receive under Sections 10. 1 .2 and 10. 1 .3 above, except Lhat the Construction Manager' s Fee shall be calculated as if the Work had been fully completed by the Construction Manager, including a reasonable estimate of the Cost of the Work for Work not actually completed. AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright ® 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING : This document Is protected by U.S. Copyright Law and International Treaties. 20 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:50: 12 on 04/19/2005 1 inder Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes: ( 1413727908) § 10.3 SUSPENSION The Work may be suspended by the Owner as provided in Article 14 of A2011M 1997;A201TM- 1997 as modified.• in such case, the Guaranteed Maximum Price, if established, shall be increased as provided in Section 143 .2 of A-201 1M 1997A201TM- 1997, as modified, except that the term "cost of performance of the Contract" int at Section shall be understood to mean the Cost of the Work and the term "profit" shall be understood to mean the Construction Manager' s Fee as described in Sections 5 . 1 . 1 and 5 .3 .4 of this Agreement. ARTICLE 11 OTHER CONDITIONS AND SERVICES This Agreement entered into as of the day and year first written above. AWN€RCONSTRUCTION MANAGER OWNER CONSTRUCTION MANAGER BOARD OF COUNTY COMMSIONERS TURNERVONSTRUCTION COMPANY INDIAN RIV "OUNTY FLORIDA S_ (Signature) (Signature) (,Printed name and lkle) (Printed f-Wiffn Thomas S .1. Lowther, ChairmanScott Skidelskv, Vice P esident (Printed name and title ! Printed name and title Approved by BCC ATTEST: Jeffrey K. Barton, Clerk'of Circuit Court Witnessed by: Deyuty Clerk Printed m Approved: I' 13atA '1 @ Lf 7t Joseph Jose h' Baird County Administrator ADDr0V4asJo Form and Lecid Sufficien L%G ATTR j� •,y 1 ��Ld • Illiam G . ollins II, County Attorney , Indian River Co. Approved Date Administration Legal Budget CW Department Risk Mgt. ov- �y oS AIA Document A121 TMCMc — 2003 and AGC Document 565, Copyright ® 1991 and 2003 by The American Institute of Architects and he Associated General Contractors of America. Ali rights reserved WARNING: This document Is protected by U.S. Copyright Law and International Treaties. 21 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:50:12 on 04/19/2005 ynder Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes: ( 1413727908)