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HomeMy WebLinkAbout2005-194a �'�� - Document A121 " CMc - 2003 and 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 Seventh day of June in the year of Two Thousand Five (2005 ) . (In words, indicate day, month and year) This document has important BETWEEN the Owner: legal consequences . (Name and address) Consultation with an attorney is encouraged with respect to Indian River County Board of County Commissioners its completion or modification . 1840 25th Street The 1997 Edition of AIA® Vero Beach, Florida 32960 Document A201 TM , General Conditions of the Contract for and the Construction Manager : Construction , is referred to (Name and address) herein . This Agreement requires modification if other general Peter R . Brown Construction, Inc . conditions are utilized . 1424 Piedmont Drive East Suite 100 Tallahassee , Florida 32308 The Project is : (Name, address and brief description) IRC Jail Expansion 2005 4055 41 st Avenue Vero Beach, Florida New housing units (384 beds) ; warehouse facilities (6 ,000 s . f. ) ; sallyport (4,321 s . f. ) ; kitchen expansion ( 1 ,500 s . f. ) ; Visitor Processing (new and renovation 2,400 s . f. ) ; Tele- Visiting Center (3 , 128 s . f. ) ; New Medical and Infirmary (23 , 175 ) ; Intake and Release (New and renovation 5 ,046 s . f. ) ; Site perimeter Fencing (4,200 lineal feet) ; Site Construction (4 .5 +/- acres) The Architect is : (Name and address) Clemons-Rutherford & Associates , Inc . 2027 Thomasville Road Tallahassee, F132308 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. 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 17 :00:26 on 05/25/2005 under Order No. 1 0001 26313_1 which expires on 6/29/2005, and is not for resale. User Notes : (3163795107) 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 ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES § 4.1 Compensation § 4.2 Payments ARTICLE 5 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 § 7.2 Final Payment ARTICLE 8 INSURANCE AND BONDS § 8. 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 and The Associated General Contractors of America. All rights reserved. WARNING : This document Is protected by U.S. Copyright Law and International Treaties. 2 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 17 :00 :26 on 05/25/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes : (3163795107) ARTICLE 1 GENERAL PROVISIONS § 1 .1 RELATIONSHIP OF PARTIES The Construction Manager accepts the fiduciary relationship of trust and confidence hereby established with the Owner by this Agreement, and covenants with the Owner to furnish the Construction Manager' s reasenabke best skill and judgment and to cooperate with the Architect in furthering the interests of the Owner. The Construction Manager shall furnish construction administration and management services and use the Construction Manager' s best efforts to perform the Project in an expeditious and economical manner consistent with the interests of 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- 1997 , General Conditions of the Contract for Construction, as modified, which is attached and incorporated herein by reference. For the Preconstruction Phase, or in the event that the Preconstruction and Construction Phases proceed concurrently, A201TM 1997 A201TM- 1997, as modified, shall apply to the Preconstruction Phase only as specifically provided in this Agreement. The term " Contractor" as used in A291TM��A201TM- 1997 , as 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 Manager agree, after consultation with the Architect, the Construction Phase may commence before the Preconstruction Phase 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 Owner ' s pr-egf fn and Project budget �� ' eh in terf , of4h edief requirements . § 2.1 .2 CONSULTATION The Construction Manager with the Architect shall jointly schedule and attend regular meetings with the Owner. The Construction Manager shall consult with the Owner and Architect regarding site use and improvements and the selection of materials, building systems and equipment . The Construction Manager shall provide recommendations 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 . t have been sufficiently identified, the Construction Manager shall prepare, and periodically update, a preliminary Project schedule for the Architect ' s review and the Owner' 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 Manager shall coordinate and integrate the preliminary Project schedule with the services and activities of the Owner, Architect and Construction Manager. As design proceeds, the preliminary Project schedule shall be updated to indicate proposed activity sequences and durations , milestone dates for receipt and approval of pertinent information, submittal of a Guaranteed Maximum Price proposal , preparation and processing of shop drawings and samples, delivery of materials or equipment requiring long-lead-time procurement, Owner' s occupancy requirements showing portions of the Project having occupancy priority, and proposed date of Substantial Completion . If preliminary 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 Construction 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 is 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 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. 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 17 :00 :26 on 05/25/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes : (3163795107) § 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 Schematic Design Documents have been prepared by the Architect and approved by the Owner, the Construction Manager shall prepare , for the review of the Architect and approval of the Owner, a more detailed estimate with supporting data . During the preparation of the Design Development Documents , the Construction Manager shall update and refine this estimate at appropriate intervals agreed to by the Owner, Architect and the Construction Manager . § 2 . 1 . 5. 3 When Design Development Documents have been prepared by the Architect and approved by the Owner, the Construction Manager shall prepare a detailed estimate with supporting data for review by the Architect and approval by the Owner. During the preparation of the Construction Documents, the Construction Manager shall update and refine this estimate at appropriate intervals agreed to by the Owner, Architect and Construction Manager. § 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 to the 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, Owner specifications of County- wide applicability, or derived from a pre-existing price and material schedule to a contract between a specific 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 Architect 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 long-lead- time items which will constitute part 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 Owner-' s acceptance terms of the Constfuetion Manager-' s Guar-anteed Mffixifflum. Priee pFoposal, all cantfaets fef such itenis shall be assigned-by the Owner to the Constfuetion Manager., whe shall aeeept responsibility fof such itenis as if pf!oeured by the Constfuction Managef!. The Construction Managef shall expedite the Direct Purchase Procedure section of leng lead time this contract. § 2. 1 .8 EXTENT OF RESPONSIBILITY The Construction Manager does not warrant or guarantee estimates and schedules except as may be included 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. It is 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, if 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 Ming-writing and specify such variances . § 2.1 .9 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION The Construction Manager shall comply with applicable laws, regulations and special requirements of the Contract Documents regarding equal employment opportunity programs—. during all phases of the Project. § 2 .2 GUARANTEED MAXIMUM PRICE PROPOSAL AND CONTRACT TIME § 2 .2 . 1 When the Drawings and Specifications are 1000/o 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 . 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. 4 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 17 :00:26 on 05/25/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes: (3163795107) § 2.2 .2 A§ 2 .2 . 3 The estimated Cost of the Work shall include the t-*w-Construction Manager ' s contingency , a sum established by the construction Manager shall p ide in the n. , ., ..anteea Maximum Price for fU4110f devel„,.. ent of the Dfawings Construction Manager' s exclusive use to cover costs arising under Section 2 .2 . 1 and Speeifieations by other costs which are properly reimbursable as Cost of the A hitee. that is ,., ,..stem with Work but not the GeatEaet DOeuments and reasonably inferable ther-eff-em. Sueh f4ther- development does not inelude sueh tWngs as ehanges in seepe, systems , k4nds and quality of materials , finishes or- equipment, all of whieh, if required , shall b .e i per-ated4)y-basis for a Change Order. § 2.2.3 The estimated Cost of the Work shall include the Constmetion Manager-' s contingeney, a sufn established by and other- eosts which are pfreper-ly reinabur-s.ah- le as C-e- st of the Work but not the basis fef a Change Or-def. § 2.2.4 BASIS OF GUARANTEED MAXIMUM PRICE The Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement 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. 5 The Construction Manager shall promptly 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 discover any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal , its basis , or both. § 2.2.6 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 aeeeptanee by the Constr-tietien . 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 deductions by 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 Specifications 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 schedules agreed to by the Owner, Architect and Construction Manager. The Construction Manager shall promptly notify the Architect and Owner in writing if such revised Drawings and Specifications are inconsistent with the agreed- upon assumptions and clarifications . § 2.2. 10 The Guaranteed Maximum Price shall include in the Cost of the Work only those taxes which are enacted at the time the Guaranteed Maximum Price is established . 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. 5 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 17 :00 :26 on 05/25/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes: (3163795107) § 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 pe�r�Construction Manager' s Guaranteed Maximum Price proposal and the issuance of a Notice to Proceed. ( 1 ) the Owner' s aeeeptanee of the Censtr-uetien Manager' s Guaranteed Maximum Pr-iee proposal and. ..F ., N : ee to Proses, e et .. (2) the Owner' s first autherization to the Const uetio Manager- (a) ayArafd ., ubeentr., et , (b) undertake e nstmetion Work with the Construction AR .. ,,. ger-' s o F or w� undertake VVa.s al »Val Vaa Work ♦. LLiI Ll3V L.VLIJLL »V{LV1I r�r , !e\ issue « pileuuoc order- for materials rojPdcnrad for- the W 1 - § 2.3.2 ADMINISTRATION § 2. 3.2 . 1 Those portions of the Work that the Construction Manager does not customarily perform with the Construction Manager ' s own personnel shall be performed under subcontracts or by other appropriate agreements with the Construction Manager. The Construction Manager shall obtain bids from Subcontractors and from suppliers of materials or equipment fabricated to a special design for the Work from the list previously reviewed and, after analyzing such bids, shall deliver such bids to the Owner and Architect. The Owner will then determine , with the advice of the Construction Manager and subject to the reasonable objection of the Architect, which bids will be accepted. The Owner may designate specific persons or entities from whom the Construction Manager shall 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. § 2.3.2 .2 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 the Construction Manager; (2) is qualified to perform that portion of the Work; and (3) has submitted a bid which conforms to the requirements of the Contract Documents without reservations or exceptions, but the Owner requires that another bid be accepted, then the Construction Manager may require that a change in the Work be issued to adjust the Contract Time and the Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to the Owner by the Construction Manager and the amount of the subcontract or other 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 special 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 fninute :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 the progress of the entire Work. The Construction Manager shall maintain a daily log containing a record of weather, Subcontractors working on the site, number of workers, Work accomplished , problems encountered and other similar relevant data as the Owner may reasonably require. The log shall be available to the Owner and Architect that shall be at least monthly and in writing . The Construction Manager acknowledges and Arnehitecc—agrees that Section 8 . 2 . 3 of the A201TM- 1997 , as modified, is applicable in such circumstances . § 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 AIA Document A121 n"CMc — 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 17:00:26 on 05/25/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes: (3163795107) 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; reasonably acceptable to the Owner and the Architect, to assure quality control of the construction. The Construction Manager shall supervise the Work of all Subcontractors, providing instructions to each when its Work does not conform to the requirements of the plans and specifications and continue to manage each Subcontractor to ensure that corrections are made in a timely manner so as not to affect the progress of the Work. Should disagreement occur between the Construction Manager and the Architect over acceptability of Work and conformance with the requirements of the plans and specifications , the Owner shall be the final judge of performance and acceptability . § 2.3.2 .9 The Construction Manager shall maintain exclusively for the Project a competent full-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 personnel shall be consistent with the Construction Manager ' s interview presentation and shall not be removed or replaced without the Owner' s consent, which consent will not be unreasonably withheld . The Owner shall have the right to direct the Construction Manager to remove or replace any on- site personnel whose performance becomes unreasonably unsatisfactory to the Owner. In such event, the Construction Manager shall promptly replace such personnel , 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 carry out the overall plans of construction. The Construction Manager shall identify an an-site staff member to represent the Construction Manager, on a daily basis , with authority to negotiate change orders and contract modifications on behalf of the Construction Manager with the understanding that final acceptance of change orders and contract modifications can only be done by officers of the Construction Manager. The Construction Manager shall make available such executive personnel as necessary to execute change orders or other contract modifications on behalf of the Construction Manager so as not to delay the progress of Work. § 2. 3.2. 11 The Construction Manager shall establish procedures for coordination among the Owner, Architect, Subcontractors and Construction Manager with respect to all aspects of the Work. The Construction Manager shall require of the various Subcontractors coordination drawings as may be necessary to properly coordinate the Work among the Subcontractors . § 2.3 .2.12 In coordination with the Architect, the Construction Manager shall establish and implement procedures for trackingand nd expediting the processingof f shop drawings and samples, as required by the A201TM- 1997 , as modified . § 2. 3.2. 13 The Construction Manager shall determine the adequacy of Subcontractors ' personnel and equipment, and the availability of materials and supplies to meet the Project Schedule . In consultation with the Owner and Architect, the Construction Manager shall take necessary corrective actions when requirements of a Subcontract or a Subcontractor' s schedule are not being met. § 2.4 PROFESSIONAL SERVICES Section 3 . 12. 10 of A-201TM=199A201TM- 1997 , as modified , shall apply to both the Preconstruction and Construction Phases . § 2 .5 HAZARDOUS MATERIALS Section 10. 3 of A20ITM��A20ITM- 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 Project, including a program which sets forth the Owner ' s objectives, constraints and criteria, including space requirements and relationships , flexibility and expandability requirements, special equipment and systems, and site 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. 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 17 :00 :26 on 05/25/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes: (3163795107) r i > requirements if requested in writing by the Construction Manager specifying the reason for the needed information . § 3. 1 .2 The Owneiz shall , at the written Fequest of theCOH417110tionManagef prior to Goffiffieficement of th G.enstruention Phase and ther-eafter, furnish to the Constfuet; aa ManageFreasonable evidenee that financial arrangements have been fnade to fulfill the Ownef' s ebligaiiAw; undpw thp. Contract. Fumishing of sueh e�ridefiee Managef. § 3. 1 . 3 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 Manager 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 law. § 3. 1 .4.2 Surveys describing physical characteristics , legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys , pavements and adjoining property and structures ; adjacent drainage ; rights -of-way, restrictions , easements, encroachments , zoning, deed restrictions, boundaries and contours of the site ; locations , dimensions and necessary data pertaining to existing buildings , other improvements and trees ; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All 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 values, 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 Manager-.Manager and 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 the authority to make deeisiefis-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. E:eept as otherwise pre_ided in Seetio . 4 . 2 . 1 Decisions outside of the scope of delegated authority of A20 } TM—��the Owner' s Representative must be made by the 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 and electrical engineering services , other than cost estimating services , described in the edition of AIA® Document B 151TM 1997 , A - vi ted B 141 TM- 1997 . Standard Form of Agreement Between Owner and A :e Architect, as modified , current as of the date of this Agreement. The Owner shall authorize and cause the Architect to provide those Additional Services described in B151TM 1997 , request adB141TM- 1997 , as modified ,requested by the Construction Manager which must necessarily be provided by the Architect for the Preconstruction and Construction 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. $ 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 17 :00:26 on 05/25/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes : (3163795107) Phases of the Work. Such services shall be provided in accordance with time schedules agreed to by the Owner, Architect and Construction Manager. Upon request of the Construction Manager, the Owner shall furnish to the Construction Manager a copy of the Owner' s Agreement with the Architect, from which compensation provisions may be deleted . § 3 .4 LEGAL REQUIREMENTS The Owner shall determine and advise the Architect and Construction Manager of any special legal requirements 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 . 43.4. 1 . Public Disclosure Statement. Any 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 Commissioner or Indian River County employee. The relationship with either must be disclosed as follows : Father, mother, son daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, daughter-in-law, son-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, half brother, half sister, rg andparent, or grandchild. The term "affiliate" includes those officers, directors, executives , partners , shareholders , employees , members , and agents who are active in the management of the entity . Construction Manager has made the required disclosure of relationships on the required form attached to this Contract and made a part hereof by this reference . §3.4.2. Availability of Funds , The obligations of the Owner under this Contract are subject to the availability of funds lawfully appropriated for its purpose by the Board of County Commissioners of Indian River County . 43 .4.3. No Pledge of Credit. The Construction Manager shall not pledge the Owner ' s credit or make it a guarantor of payment or surety for any contract, debt, obligation, judgment, lien or any form of indebtedness . The Construction Manager further warrants and represents that it has no obligation or indebtedness that would impair its ability to fulfill the terms of the Contract. §3 .4.5. Counterparts . This Contract may be executed in one or more counterparts , each of which shall be deemed to be an original copy and all of which shall constitute but one and the same instrument, 0.4.6. Survival . Except as otherwise expressly provided herein, each obligation in this Contract to be performed by 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 permitted by this Contract shall be given or made in writing and shall be served, as elected by the partyi�g such notice, by any of the following methods : (a) Hand delivery to the other party ; (b) Delivery by commercial overnight courier service ; or (c) Mailed by registered or certified mail (postage prepaid) , return receipt requested at the addresses of the parties shown below: Owner: Indian River County Attn: Lynn Williams. Project Manager 1840 25th Street, Vero Beach, FL 32960-3365 Phone: (772) 226- 1419 ; Facsimile : (772) With required copies to : Tom Frame, Director of General Services 184025' Street, Vero Beach, FL 32960-3365 Phone: (772) 226- 1223 , Facsimile : (772) 770-5095 and Captain Bill McMullen, Jail Administrator 4055 41St Avenue, Vero Beach, FL Phone : (772) - ; Facsimile : (772) Construction Manager : Peter R. Brown Construction, Inc . , Attn : John R . Stewart, Executive Vice President 1424 Piedmont Drive East . , Suite 100 AIA Document A121 T"CMc — 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 AIA software at 17 :00 :26 on 05/25/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes : (3163795107) Tallahassee, F132308 Phone : (850) 668 -4498 ; Facsimile : (850) 668 -6790 Notices shall be effective when received at the address as specified above. Facsimile transmission is acceptable notice effective when received , provided, however, that facsimile transmissions received (i . e . , printed) after 5 : 00 p . m. or on weekends or holidays, will be deemed received on the next day that is not a weekend day or a holiday. Either party may change its address , for the purposes of this section , by written notice to the other party given in accordance with the provisions of this section . 63 .4.8. Florida Produced Lumber. Construction Manager agrees to comply with the provisions of Section 255 .20, Florida Statutes , as such statute may be amended from time to time , wherein Indian River County as Owner 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 . 63 .4.9. Liquidated Damages . Upon failure of Construction Manager to Substantially Complete the Contract within the specified period of time, plus approved time extensions, the Construction Manager shall pay to Owner the amount of Eight Hundred Dollars ( $ 800 . 00) for each calendar day after the time specified, not as a penalty but as liquidated damages to Owner due to failure of Construction Manager timely to complete the Project. Liquidated damages in the amount of Eight Hundred Dollars ($ 800. 00) are hereby fixed and agreed upon between the parties , recognizing the he impossibility of precisely ascertaining the amount of damajZes that will be sustained by Owner as a consequence of such delay, and both parties desiring to obviate any question or dispute concerning the amount of such damages and the cost and effect of the failure of Construction Manager to complete the Contract on time. Construction Manager and Owner agree that Owner is authorized to deduct all or any portion of the above-stated liquidated damages from monies due to Construction Manager for the Work under this Contract as the Owner deems just and reasonable . Construction Manager and Owner further agree that the liquidated damages are subject to a cap that is equal to one-half ('/2 ) of the amount of the final amount of the Construction Manager' s Fee . §3 .4. 10. Trench Safety. Florida Statutes Section 553 . 60 through 553 . 64, known as the " Trench Safety Act " requires all contractors engaged 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 required to sign a Trench Safety Act Compliance Statement and provide compliance cost information where indicated . The costs for complying with the Trench Safaty Act must be incorporated into the Project' s Guaranteed Maximum Price. §3 ,4, 11 , Conflict. In the event of any conflict between the provisions of the A121 , as modified , and the A201 , as modified , the provisions of the A121 , as modified , shall control , unless otherwise specifically set forth in the Contract Documents . 63 .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 properly characterized as an exempt sale to a governmental entity or a taxable sale to or use by a contractor shall be based on the substance of the transaction , rather than the form in which the transaction is cast. The determination of whether the substance of a particular transaction is a taxable sale to or use by a contractor or an exempt direct sale to a governmental entity, based on all of the facts and circumstances surrounding the transaction as a whole, is ultimately made by the Florida Department of Revenue . C. The conditions that must be met to satisfy the requirements of Rule 12A4 . 094, Florida Administrative Code F. A. C . , and establish that Indian River County as Owner rather than the Construction Manager is the purchaser of materials , include : 1 . Direct Purchase Order. The governmental entity must execute the purchase orders for the tangible personal property involved in the contract, which must include the governmental entity ' s consumer' s certificate of exemption number. The contractor may present the governmental entity ' s purchase orders to the vendors of the tangible 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. 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 17 :00:26 on 05/25/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes : (3163795107) personal property; 2. Passage of Title. The governmental entity must acquire title to and assume liability for the tangible personal property at the point in time when it is delivered to the job site up until the time it is incorporated as real property; 3 . Direct Invoice . Vendors must directly invoice the governmental entity for supplies ; 4. Direct Payment. The governmental entity must directly pay the vendors for the tangible personal property and 5 . Assumption of the Risk of Loss . The governmental entity must assume all risk of loss or damage for the tangible personal property involved in the contract as indicated by the entity ' s acquisition of or inclusion as the insured party 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 to comply with the Direct Purchase Procedures set forth in this section 3 4 12 for all such purchases Owner and Construction 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 . E . A Direct Purchasing Procedure will be agreed upon and attached to the GMP Amendment ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES The Owner shall compensate and make payments to the Construction Manager for Preconstruction Phase services 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 $ 89,029 . 00 inclusive of all direct and indirect construction manager expenses in the preconstruction 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 if sueh serwiees extend beyond ( ) days €r m the dote of this Agreement ^r- if the originally contemplated scope of services is significantly modified . § 4.1 .3 if eompensation is based on a multiple of Direct Personnel Expense, Direct PeFSennel Expense is defined as the difeet salaries ef the Constr-tietion Manager- ' s pefsenne! engaged in the Pr-ejeet and the pef4ion of the cost of their- mandator-y and eustemaFy eentr-ibutions and benefits related therete, stieh as employment ta*es and other- statutory employee benefits, insufanee , siek leave, holidays , vaeati d similaf eentfibutions and ben § 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 provisions of the Florida Prompt Payment Act, Florida Statutes section 218 . et. seq . and Article 9 of A201TM- 1997 as modified § 4.2.2 Payments afe due and payable ( ) days ffem the date the Construetion Manager- ' s invoiee is r-eeeived b5 F located .the Owner, Amounts unpaid after- the date on which payment is due shall bear inteFest at the rate enteFed below, or in the absenee thereof-, at ilihe legal Fate pr-evailing ffofn time to time at the plaae where the Pr-ejeet is 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 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 17 :00 :26 on 05/25/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes: (3163795107) business,( U-suFy laws and requir-entent-s undeic the Feder-al Tfbith in Lending Aet; similar- state and leeal eensumer- credit laws elsewheFe may affieef the ialid4y of this tor-evisien. Legal adviee should be obtained with F�speet fe deletions a 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 Owner shall pay the Construction Manager in eu f fent funds -the Contract Sum consisting of the Cost of the Work as defined in Article 7-6 and the Construction Manager' s Fee determined as follows : (State To be determined as a lump srim7,-sum based on a percentage of aeteal the 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 Fee shall not increase under the following circumstances : 1 ) Direct Purchases by Owner pursuant to the Direct Purchase Procedures set forth in this Contract; and 2) Changes in the Work that are additive in nature ; not due to the fault of the Construction Manager; and aggregate less than or qual to $250,000. The Owner and Construction Manager-' s Fee, Manager acknowledge and explain ho :ra reg a that the Construction Manager's-Manager' s Fee is-on the increased Cost of the Work shall increase by one of the methods set forth in section 7 . 3 .3 . 1 or section 7 . 3 . 3 . 3 of the A201TM- 1997 , as modified, if there are Changes in the Work that are additive in nature ; not due to the fault of the Construction Manager, and aggregate more than $250,000 . The Construction Manager ' s Fee will not be adjusted for ehanges in decreased by deductive change orders due to the `x�Owner ' s direct purchase of materials . § 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 Construction 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 in 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. § 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 A2011m 4997-.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 of A.291Tm 1199. 7 A201TM- 1997 , as modified, and the terms " costs " and " a reasonable allowance for overhead and profit" as used in Section 7 . 3 . 6 of A-2011m - 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 A?91TMM 1997 A201TM- 1997 , as modified, shall mean the Cost of the Work as defined in Article 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. 2 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 17 :00 :26 on 05/25/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes : (3163795107) 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 if no specifie provision is made in Seetion 5 . 1 . 1 for- adjustment of the Construefien Managef- ' s Fee in the case of ehanges in the Wer-k, or- if the e*tent ef sueh ehanges is sueh, in the aggregate, that appheation of the adjustment A of See6efi 5 . 1 . 1 .1h rill elaffl.l .se subst.antial inequity to the Owner- of Constmetion Manager-, the Constmetion Managef' s Fee sha4l be equillably adjusted oft the basis of the Fee established for- the or-igin.al Aleff1c . 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 Senior Project Manager Greg Hayes Project Manager Will Sumner Assistant Project Manager Jim Cummins (If it is intended that the wages or salaries of certain personnel stationed at the Construction 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 engaged, at factories , workshops or on the road , in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time required for the Work. .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, eustemafy benefits . ueh as sick leave, medical and health benefits, holidays, vacations and pensions, provided that such costs are based on wages and salaries included in 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 the 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 incorporated in the completed construction . .2 Costs of materials 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 credited 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 materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily owned 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 consumed , whether sold to others or retained by the Construction Manager. Cost for items previously used by the Construction Manager shall mean fair market value. 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. 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 17 :00:26 on 05/25/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes : (3163795107) .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 rented from the Construction Manager or others , and costs of transportation, installation, minor 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 petty cash expenses of the site office. .5 That portion of the necessary and reasonable travel and subsistence expenses of the Construction Manager' s personnel incurred while traveling in discharge of duties connected with the WeEk-.Work limited as set forth in Florida Statutes, section 112 .061 and further provided that no mileage 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 ben&. -bond, provided 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 s . (If 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 Work and for which the Construction Manager is hable-. liable, subject to the Owner' s use of Direct Purchase Procedures set forth in the Contract Documents . .3 Fees 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 nonconforming Work. .5 Royalties and license fees paid for the use of a particular design, process or product 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 consent; provided, however, that such costs of legal defenses , judgment and settlements 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 A201TM 199TA201TM- 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 fulfill a specific responsibility to the Owner set forth in this Agreement. .8 Legal;Le ag 1 and mediationcosts, 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' s rior 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 . 1 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 . twhich are incurred by the Construction Manager: 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. 4 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 17 :00:26 on 05/25/2005 under Order No. 1 0001 26313_1 which expires on 6/29/2005, and is not for resale. User Notes: (3163795107) A 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 A201TM� .A201TM- 1997, as modified. .2 in fepai inn of eeFfeeting damaged or- LLoneenfer- ing Work exeeuted by the ('OHntF. . ..60H Tif.. .. . ger suppliers , « fe -.. fig UU..rk of a sed by the .. gligenee or- failure to fulfill ., .. : F. .. .- .. ib lits t.. 11VLLVVLL1Vlllllllb ♦ V1111) LLJ 11Va arY44JV4 V�-GL Manager,the Owner- set forth ift this agreement ef the Constfuetion Manager of the Gensty-uction Dolanager-' s of the Constfuction adequately the Work of the Subeentfaetors or suppliers, and only to the eyclient that thea, enost of Y-epai § 6 . 1 .9 The costs described in Sections 6 . 1 . 1 through 6 . 1 . 8 shall be included in the Cost of the Work notwithstanding any provision of AIA or A201TM�1997 A201TM- 1997 , as modified, other Conditions of the Contract which may require the Construction Manager to pay such costs , unless such costs are excluded by the provisions of Section 6 . 2 . § 6 .2 COSTS NOT TO BE REIMBURSED § 6.2. 1 The Cost of the Work shall not include : . 1 Salaries and other compensation of the Construction Manager' s personnel stationed at the Construction Manager ' s principal office or offices other than the site office, except as specifically provided in Sections 6 . 1 . 2. 2 and 6 . 1 . 2 . 3 . .2 Expenses of the Construction Manager ' s principal office and offices other than the site office, except as specifically provided 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 Manager ' s capital employed for the Work. .5 Rental costs of machinery and equipment, except as specifically provided in Section 6 . 1 . 5 . 2 . .6 Exeep�as ded in Section 6 . 1 . 8 .2, ee ts Costs due to the negligence of the Construction Manager or to the failure of the Construction Manger to fulfill a specific responsibility to the 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 described 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 obtained on payments .nage by and other cost savings available to the Construction Manager shall accrue to the Owner if ( 1 ) before making the payment, the Construction Manager =neluded them in an Applioation for- Payment a has received payment therefor from the Owner during the Owner-, cash discount period and in sufficient time for the Construction Manager to obtain such discounts , or (2) the Owner has deposited funds with the Construction Manager with which to make payments ; otherwise , cash discounts shall accrue to the Construction Manager. Trade discounts, rebates , refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Construction Manager shall make provisions so that they can be 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 . AIA Document A121n"CAAc — 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. 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 17 :00 :26 on 05/25/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes : (3163795107) 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 Contract Sum to the Construction Manager as provided below and elsewhere in the Contract t&.-Documents and pursuant to the provisions of the Florida Prompt Payment Act Florida Statutes section 218 et seq ._ § 7 . 1 .2 The pefied eoNrer-ed by eaeh Applieation for- Payment shall be one ealendar- Month ending on the last day 0 the month, or- as fell . wsi § 7, 1 , 3 Provided an AL i lio tion fee Payment is d by the rehitect not later than lihe day of a month,the OwneF shall make payment to the Constfuetion Manager not later than the day of the � �t, TC � � A 1- an Applioation fof PaymenliiS Feceived by the Arehiteet aftef the application date fixed above , payment shall be fflade by the OWneF not latef than ( ) days after- the Arehiteet reeeives the Applieatieft for Payment. § 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 Manager and approved in writing by the Architect and 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 may require . This schedule, unless obje„ted towhen and only when, approved in writing by the A r t—, Architect and Owner, shall be used as a basis for reviewing the Construction Manager' s Applications for Payment. § 7 . 1 .6 Applications for Payment shall show set forth the percentage completion of each portion of the Work that has actually been completed as of the end of the period covered by the Application for Payment. 'r'_' completion shall be the lesser of ( 1 ) the percentage of that por-tion of the Work which has aetually been eompleted or (2) the pereentage obtained by dividing (a) the expense whieh has aetually been inettr+ed by the Genstfue Manager- en aeeount of that pertion of the Work fef whieh the Construetion Managef has rflade or- intends to make aetual payment pr-iE)r to the next Appheation fef: Payment by (b ) the share of the Guafanteed Maximum P alleeatea to that potion o f the �x ofk : n the seh d 1 F 1 ........»..... ... u.... portion va •aav . . van ulcer § 7 . 1 .7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be 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 may be paid the entire amount due when such a payment is generally the practice of industry. At fifty percent (50 %) completion, the Owner may approve a reduction of the retainage from ten percent ( 10 % ) to five percent (5 %) at the Owner ' s discretion . There shall be no retainage on the Articles 6 . 1 . 2 , 6 . 1 . 5 and 6 . 1 . 6 components of the Cost of the Work in the preceding ceet: ons bears t feasenabl.e Work we v Yr aag vca.uvu estimate of the probable Cost of the Wor-k upen its eoWlefiei+. 4—Work. 2 . Subtract the aggregate of previous payments made by the Owner. same ratio to that fixed sum Fee as the the Wer-k deser-ibed in the two pr-eeeding Sections at the rate stated ift Section 5 . 1 . 1 , if the Geastr-uetien Manager ' s Fee is stated as a fixed surn in that Seetion, shall be an afneunt which bears Cost emr upon Z uteri site for- subsequent : Y �ration in th W +L if YY d advanee � by the Owner-, suitably stor-ed off the site at a location agreed upon in writing. .3 Add the constfue ien Manager's Fee, less retainage a€TrThe Eenst>•uetien Manager-s Fee materials and equipment a 1 ' d d ' t bly t d G t Maximum d Priee has t Yet h equipment adjusted by Change Or-den .2 Take that peFtion of Add that peftion of the Guaranteed Maxjniu*"2Fiee Guaranteed Ma*imum Prig 1 . , it hle 1 [1(17 �zcrticrl� anocac t co co:ix�llPtf d Wofl�$5 deter-mined ��AlTM�rrr even thoueh be ineluded as orovided in Seetieft 7 . 3 . 8 of of each portion of the Work, amounts of : t Work jh h d 1 v f ,\I7 1 by 1 completion C G DCII C C)I R 11 O O 1 IaCO AIA Document A121 ^"CMc — 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 17:00:26 on 05/25/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes : (3163795107) per-tion 0 .5—.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 . 96—, Subtract amounts , if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Section 9 . 5 of A291TM�rA201TM- 1997, as modified . .5 Subtract amounts, if any, being withheld by the Owner as provided in the Contract Documents .6 § 7.1 .8 Exeept with the Oywfief ' s prior approval , payments to Subeentfactors shaR be subjeet te retention of not less than ( ) . The Owner- and the C=enstfuetion Manager- shall agree upen a fatitually aeeeptable pfeeedufe fef fevi&Ar and approval ef payments and retention fef subeentr-aets . § 7. 1 .9 Except with the Owner ' s prior written approval, the Construction Manager shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site . § 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 Manager-and shall not be deenied to f epfesent that the Arehiteet has Faade a detailed examination, audit ef ar-it-hmetie ver-ifieation of Hhe d-o- eumentation submitted in aeoor-danee with Seetion 7 . 1 . 4 of: other suppeffing data, that the Arehitect has made exhaustive or- eentin - pections or- that the Ar-ehiteet has made e*aminatians to aseeftain how e fef what purposes the Con.stfuetien Manag.er- has used afneants previously paid. sen Aeeount- of the Centfaet. Such examinations, audits and verifielifiens , if Fequir-ed by the Owner-, will be peFfer-Fned by th.e Owner- ' s aeeountants an__ting in the sole interest of the n .. ,ne Manager. § 7 .2 FINAL PAYMENT § 7.2. 1 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 A201 TM- 1997 , and-as modified , and to satisfy other requirements , if any, which necessarily survive final payment ; (2) a final Application for Payment and a final accounting for the Cost of the Work have been submitted by the Construction Manager and reviewed by the Owner' s accountants ; and (3 ) a final Certificate for Payment has then been issued by the ^hitea-,-Architect for the Owner' s approval : such final payment shall be made by the Owner not more than 340-25 days after the issuanee Owner' s approval of the Architect' s final Certificate for Payment, or- as folio ssPayment along with proper evidence showing that all suppliers and sub-contractors have been paid and such request has been presented to reviewed and approved by the Board of County Commissioners . § 7.2.2 The amount of the final payment shall be calculated as follows : . 1 Take the sum of the Cost of the Work substantiated by the Construction Manager' s final accounting and the Construction Manager' s Fee, but not more than the Guaranteed Maximum Price . .2 Subtract amounts, 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 A201TM '— °�9 A201TM- 1997 , as modified 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 eke-UUon the Owner ' 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 Architect by the Construction Manager. Based upon such Cost of the Work as the Owner ' s ams Accountants report to be substantiated by the Construction Manager' s final accounting, and provided the other conditions of Section 7 .2 . 1 have been met, the Architect will , within seven days after receipt completion of the written report of the Owner' s accountants , either issue to the Owner a final Certificate for Payment with the Construction Manager or notify the Construction Manager and Owner in writing of the Architect' s and Owner ' s reasons for withholding a AIA Document A121 TT"CMc — 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. 17 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 17 :00 :26 on 05/25/2005 under Order No. 10001263131 which expires on 6/29/2005, and is not for resale. User Notes: (3163795107) certificate as provided in Section 9 . 5 . 1 of A20111i 1997 . A201 TM- 1997 , as modified. The time periods stated in this Section 7 . 2 supersede those stated in Section 9 .4. 1 of rA 20IT'"'�rA201TM- 1997 , as modified . § 7.2.4 If the Owner' s aeeountant^ ~epeft Owner disputes the Cost of the-Work as substantiated by the Construction Manager ' s -Manager' s final aeoetiating to be less than elaimed by accountin;;, the renst~. , ,.tion >, ,r ,, nager- the construction Manager shall be entitled to preeeed -assert a claim in accordance with Article 9 • ithout a f , ~the~ deersion n of the fyhiteet Unless a eed to otherwise , ,, demand Far- mediationef-afbitfatien-A20ITM- 1997 , as modified . The Owner shall , pending resolution of the disputed afneulot shall 1 to by ., e r disputed Y shall VY made Manager- within 60 days aftef the Construetion Manager ' s receipt of a eapy of the Arehiteet' s final Gef:tifieate fe Payment. Failure to make any such demand within this 60 day pe ~: ed shall _ _ salt in the substantiated amount reparted by the Ownef' s aeeountants bece"ag binding on the Constfuetion Manager-. Pending a final resolution e the disputed amount, the OwneY she " dispute, pay the Construction Manager the ame I., n * eerf.f ed all sums otherwise payable and not in the rL-Vhi1Yet ' ~ final Ce~tifie . te Fe~ P , y ent dpute § 7.2 , 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 resolution 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 excess of the Guaranteed Maximum Price . If the Construction Manager has participated in savings, the amount of such savings shall be recalculated and appropriate credit given to the Owner in determining the net amount to be paid by the Owner to the Construction Manager. 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 A201TM—�TA201TM- 1997 , as modified. Such insurance shall be written for not less than the following li"� z limits as required by law-. Section 11 . 1 . 1 of A201TM- 1997 , as modified. § 8. 1 . 1 Wafker-s ' Compensation and Efnpleyef:s ' Liability fneeting statutefy li"ts mandated by state and federal laws . if ( 1 ) limits in excess of thoseFequifed by statute are to be provided, of (2) the empleyef is not statutefily bound to obtain stieh insufanee eover-age or- (3 ) additional eoverages are fequir-ed , additional cover-ages and limits fe § 8 . 1 .2 Damage (inel „ ding eb Explesion,a Fe.• lesiUndergroundCollapse and Underground h d ) , Damage b Each n,.curr-e.,ee General Aggregate Personal and Adver-fising lnjufy Products !'completed Oyer tiOns AggFeg to Products V4aV G,Tti . 1 .2 least ( ) year(s) after either- 90 days following Substantial Completion or final payment-, whieheNrer- is earlier. .3 The pehey shall he endOFsed. to have the Gene~., 1 Aggregate seats ., ply to this D.• t only. pa r..v.�^r^vu v' ..uaal vV uva uV V VV11V1K "4997-. J ---. .. anee shall include eeNrefage suffieient to fneet the obligations inSeetion 3 . 18 § 8. 1 .3 Automobile Liability (owned , Ron owned and hifed vehieles) fef bodily injuify and pfoper-t:y damage: Each Aeoident § 8. 1.4 limits. Geonmer-eial Geneffil Liability and ,lutemebile Liabilily limits may be attained by individual peheies or- by a Liability Insurance is to he . ided . tate the rill. :~ here. i AIA Document A121 T mCMc — 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. 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 17 :00:26 on 05/25/2005 under Order No. 1000126313_1 which expires on 6/29/2005 , and is not for resale. User Notes : (3163795107) 1 § 8 .2 INSURANCE REQUIRED OF T14E OWNER § 8 .2. 1 P fepe..ty insurance : During both phases of the Pf:ejeeli, the Owner- shall puf!ehase and fnaintain liability and pr-eper-ty insufance, ineluding Waiver-s of subragation, as set foFth in Seefiens 11 .2 and 11 . 4 of A2011M 1997 . Sueh insur-anee shall be wnaen for ..t less than the fello .. ing lifnits e .. ter i ff., quifed by 1 uv .. .vvv auwaa uiv ivaiv ., au�,. aaY4 J, Vl b1YUlY , _ Deductible Per (1..our-Fenee § 8.2.2 Beilerand MaehineFy inseranee with a linin o . A ggFeguscDeductible W met ,. blanket et .. .. I ey list the ., b. ; ..em to be Fed 1 IlJ ILVL µ VLµ4L444i EJVL , § 8.3 PERFORMANCE BOND AND PAYMENT BOND § 8 .3. 1 The Construction Manager (Inse ft " ..hall " or hall . V shall furnish bonds covering faithful performance of the Contract and payment of obligations arising thereunder. Bends nay-The—amount of theperformance bond shall be obtained-tlfough equal to One hundred twenty-five percent ( 125 .00% ) of the G nstfuetion *.�z=anager� usual ost of the cost thereof shall he inel . , Ae 1 Work as set forth in the Contract Documents . For purpose of calculating the amount of the bonds, the Cost of the Vief1 -.-Work shall exclude the cost of the bonds . The amount of eae-lrthe �ayment bond shall be equal to ( One hundred percent ( 100. 00%) of the Cost of the Work as set forth in the Contract Slim. Documents . § 8.3.2 The Construction Manager shall deliver the required bonds to the Owner at least t" Yee ,1 ,, . .,, he fe_e the eemmeneement of anyWOFk at he Projeet ae for review prior to recordation . ARTICLE 9 MISCELLANEOUS PROVISIONS § 9 . 1 DISPUTE RESOLUTION § 9 . 1 . 1 During both the Preconstruction and Construction Phases, Claims, disputes or other matters in question between the parties to this Agreement shall be resolved as provided in Sections 4 . 3 through 4 . 6 of A2011-11 1997 A201TM- 1997 , as modified, except that, during the Preconstruction Phase, no decision by the Architect shall be a condition precedent to mediation or arbitration. § 9.2 OTHER PROVISIONS § 9.2. 1 Unless otherwise noted, the terms used in this Agreement shall have the same meaning as those in A201 TM- 1997 , General Conditions of the Contract for Construction . as modified . § 9.2.2 EXTENT OF CONTRACT This Contract, which includes this Agreement and the other documents incorporated herein by reference, represents the entire and integrated agreement between the Owner and the Construction Manager and supersedes all prior negotiations, representations or agreements, either written or oral . This Agreement may be amended only by written instrument signed by both the Owner and Construction Manager. If anything in any document incorporated into this Agreement is inconsistent with this Agreement, this Agreement shall govern . § 9 .2. 3 OWNERSHIP AND USE OF DOCUMENTS Article 1 . 6 of A201TM-1-997 A201 TM- 1997 , as modified, shall apply to both the Preconstruction and Construction Phases . § 9.2.4 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 and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents . Except as provided 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. 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 AIA software at 17 :00:26 on 05/25/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes : (3163795107) in Section 13 . 2 . 2 of A201TM- 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 consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. 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. 1 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 A201TM�TA201TM- 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 termination at the rate stated in Section 5 . 1 or, if the Construction Manager' s Fee is stated as a fixed sum in that Section, an amount 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 its 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 election of the Owner, for any equipment owned by the Construction Manager which the Owner elects to retain and which is not otherwise included in the Cost of the Work under Section 10 . 1 . 3 . 1 . To the extent that the Owner elects to take legal assignment of subcontracts and purchase orders (including rental agreements), the Construction Manager shall , as a condition of receiving the payments referred to in this Article 10, execute and deliver all such papers and take all such steps , including the legal assignment of such subcontracts and other contractual rights of the Construction Manager, as the Owner may require for the purpose of fully vesting in the Owner the rights and benefits of the Construction Manager under such subcontracts or purchase orders . 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 assignment 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 Manager the costs necessarily incurred by the Construction Manager by reason of such termination. § 10 .2 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 A20ITM-1997 . A201TM- 1997 , as modified . § 10.2. 1 In the event of such termination by the Owner, the amount payable to the Construction Manager pursuant to Section 14. 1 . 3 of A20ITm1997 A201 TM- 1997 , as modified, shall not exceed the amount the Construction Manager 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 Construction 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 that the 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 17 :00:26 on 05/25/2005 under Order No. 1 0001 26313_1 which expires on 6/29/2005, and is not for resale. User Notes: (3163795107) 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. § 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 14 .3 .2 of A2011M�1 997-A201TM- 1997 , as modified, except that the term " cost of performance of the Contract" in that 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 . OWNER ION MANAGER OWNER NSTRU TION MANAGER BOARD OF COUNTY COMMONERS ETER R. B OWN CONSTRUCTION INC . INDIAN RIVER COUNTY, FLORIDA J ' cam-- , (Signature) (S gnat e Thomas S . Lowther, Chairman J hn . Stewart cutive Vice President (Printed name and title ) kripled name and title Approvedyby BCC 06 / 07 / 2005 ` u JQfffey _Alar lerk of Circuit Court Witnessed by: 3a, '� Derk (Printed name ) roved : Aseph A. Baird Counjy Administrator Date Date A r ed as to Form and Le al Sufficiency: ATTEST rilliamollins II , County Attorney Indian River Co . Approved Date Administration 6F (G Legal Budget Department 3 ! O Risk Managment .31. 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. 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 17 :00 :26 on 05/25/2005 under Order No. 1000126313_1 which expires on 6/29/2005, and is not for resale. User Notes: (3163795107) Certification of Document's Authenticity AIA® Document D401 TM - 2003 I, Thomas W. Frame, hereby certify, to the best of my knowledge, information and belief, that I created the attached final document simultaneously with this certification at 17 : 00 : 26 on 05/25/2005 under Order No . 1000126313_ 1 from AIA Contract Documents software and that in preparing the attached final document I made no changes to the original text of AIA® Document A121TMCMC — 2003 and AGC Document 565 - Standard Form of Agreement Between Owner and Construction Manager where the Construction Manager is Also the Constructor, as published by the AIA in its software, other than changes shown in the attached final document by underscoring added text and striking over deleted text. (Signed) General Services Director, Indian River County (Title) May 25 , 2005 (Dated) AIA Document D401 Tm — 2003. Copyright ® 1992 and 2003 by The American Institute of Architects. All rights reserved. WARNING : This AIAe Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAe 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 17 :00 :26 on 05/25/2005 under Order No. 1000126313_1 which expires on 6/29t2005, and is not for resale. User Notes : (3163795107)