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HomeMy WebLinkAboutresolution.council.015-20 RESOLUTION #15 (Series of 2020) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND ARTAIC GROUP LLC AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council an Owner- Construction Manager agreement between the City of Aspen and Artaic Group LLC, a true and accurate copy of which is attached hereto as "Exhibit A"; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves the Owner- Construction Manager agreement between the City of Aspen and Artaic Group LLC, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said contract change orders on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 10th day of March, 2020. Torre, Mayor I, Nicole Henning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held March 10, 2020. c Nicole Hen g, City Clerk TM 1'111AIA Document C132 - 2009 Standard Form of Agreement Between Owner and Construction Manager as Adviser AGREEMENT made as of the 10th day of March in the year 2020 (In words, indicate day, month and year.) ADDITIONS AND DELETIONS: The author of this document has BETWEEN the Owner: added information needed for its completion.The author may also have revised the text of the original City of Aspen AIA standard form.An Additions and Deletions Report that notes added .Contact: Chris Everson,Project Manager 130 South Galena Street information as well as revisions to the Aspen,CO 81611 standard form text is available from (970)429-1834 the author and should be reviewed.A vertical line in the left margin of this chris.everson@cityofaspen.com document indicates where the author has added necessary information and where the author has added to or and the Construction Manager: deleted from the original AIA text. This document has important legal Artaic Group,LLC consequences.Consultation with an 2420 17th Street,PO Box 2675 attorney is encouraged with respect Denver,CO 80201 to its completion or modification. Contact:Adam Williams,Principal This document is intended to be used (970)471.5354 in conjunction with AIA Documents Adam.Williams@ArtaicGroup.com A132m-2009,Standard Form of Agreement Between Owner and Contractor,Construction Manager as for the following Project: Adviser Edition;A232TM-2009, General Conditions of the Contract for Construction,Construction Burlingame Ranch Phase 3 Affordable Housing Development Manager as Adviser Edition;and B132Tm-2009,Standard Form of Part 1:Detailed Design,Construction Documents,Building Permits,Budget,Contracting, Agreement Between Owner and Insurance(Part 1 ONLY until otherwise amended) Architect,Construction Manager asAdviser Edition.^AIA Document Based on attached exhibits: A232Tm-2009 is adopted in this Exhibit A.Artaic Proposal 2/6/2020 document by reference.Do not usewith other general conditions unless Exhibit B. City of Aspen RFP 2020-51088 this document is modified. This contract is subject to potential future amendment to add Parts 2 and 3 per attached exhibits A&B The Architect: (Name, legal status, address and other information) 359 Design Attn: Will Hentschel Init. AIA Document C132Tm—2009(formerly 8801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA" Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA" Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under / the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) 3630 Osage Street Denver,CO 80211 303-884-9131 whentschel@359design.co The Owner and Construction Manager agree as follows. AIA Document C132Tm—2009(formerly 8801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIA°' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 2 this AIA" Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) TABLE OF ARTICLES 1 INITIAL INFORMATION 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES 3 SCOPE OF CONSTRUCTION MANAGER'S BASIC SERVICES 4 ADDITIONAL SERVICES 5 OWNER'S RESPONSIBILITIES 6 COST OF THE WORK 7 COPYRIGHTS AND LICENSES 8 CLAIMS AND DISPUTES 9 TERMINATION OR SUSPENSION 10 MISCELLANEOUS PROVISIONS 11 COMPENSATION 12 SPECIAL TERMS AND CONDITIONS 13 SCOPE OF THE AGREEMENT ARTICLE 1 INITIAL INFORMATION §1.1 This Agreement is based on the Initial Information set forth in this Section 1.1. (Paragraph deleted) §1.1.1 The Owner's program for the Project: (Paragraph deleted) Not Applicable at the time of execution. §1.1.2 The Project's physical characteristics: 79 Affordable Condominiums,8 Multifamily Buildings(buildings 8-15) and Accompanying Carport Structures and Infrastructure 40-225 Paepcke Drive,Aspen,CO 81611 §1.1.3 The Owner's budget for the Cost of the Work,as defined in Section 6.1: Not applicable at the time of execution. §1.1.4 The Owner's anticipated design and construction schedule: 1 Design phase milestone dates,if any: Building Permit Application Submittal June 1,2020 Building Permit Issuance by April 1,2021 .2 Commencement of construction: AIA Document C132Tm—2009(formerly B801TmCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIAO Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 3 this AIA Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under t the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) April 1,2021 .3 Substantial Completion date or milestone dates: Buildings 8-11,March 2022 Buildings 12-15,October 2022 .4 Other: §1.1.5 The Owner intends the following procurement method for the Project: 1)Civil Infrastructure,Foundations, Setting,Stitching,Cladding,Roofing,Decking: Competitive Guaranteed Maximum Price bids from General Contractors based on 90%Construction Drawings with modifications as necessary during the building permit review process 2)Modular Factory—Direct Contract with Owner,to be based on prescribed process at the time of contracting §1.1.6 The Owner's requirements for accelerated or fast-track scheduling,multiple bid packages,or phased construction are set forth below: (List number and type of bid/procurement packages) n/a §1.1.7 Other Project information: Part 1:Detailed Design,Construction Documents,Building Permits,Budget,Contracting,Insurance Based on attached exhibits: A.Artaic Proposal 2/6/2020 B. City of Aspen RFP 2020-51088 Subject to potential future amendment to add Parts 2 and 3 per attached exhibits A&B §1.1.8 The Owner identifies the following representative in accordance with Section 5.5: (List name, address and other information.) City of Aspen Contact: Chris Everson,Project Manager 130 South Galena Street Aspen,CO 81611 (970)429-1834 chris.everson@cityofaspen.com §1.1.9 The persons or entities,in addition to the Owner's representative,who are required to review the Construction Manager's submittals to the Owner are as follows: n/a Init. AIA Document C1321*—2009(formerly 8801 rmCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA` Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 4 this AIAO' Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under I the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) §1.1.10 Unless provided by the Construction Manager,the Owner will retain the following consultants and contractors: (Paragraphs deleted) n/a §1.1.11 The Construction Manager identifies the following representative in accordance with Section 2.4: n/a §1.1.12 The Construction Manager's staffing plan as required under Section 3.3.2 shall include: (Paragraph deleted) Actual hours to be billed monthly,staffing based on hours per Exhibit A: Artic Proposal Dated 2/6/2020 §1.1.13 The Construction Manager's consultants retained under Basic Services,if any: (Paragraphs deleted) Not applicable at the time of execution. §1.1.14 The Construction Manager's consultants retained under Additional Services: Not applicable at the time of execution. §1.1.15 Other Initial Information on which the Agreement is based: Exhibit A:Artic Proposal Dated 2/6/2020 Exhibit B: City of Aspen RFP 2020-51088,including Burlingame Ranch Phase 3, 100% Schematic Design Plans, November 15,2019 §1.2 The Owner and Construction Manager may rely on the Initial Information.Both parties,however,recognize that such information may materially change and,in that event,the Owner and the Construction Manager shall appropriately adjust the schedules,the Construction Manager's services and the Construction Manager's compensation. ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES §2.1 The Construction Manager shall provide the services as set forth in this Agreement. §2.2 The Construction Manager shall perform its services consistent with the skill and care ordinarily provided by construction managers practicing in the same or similar locality under the same or similar circumstances.The Construction Manager shall perform its services as expeditiously as is consistent with such skill and care and the orderly progress of the Project. §2.3 The Construction Manager shall provide its services in conjunction with the services of an Architect as described in AIA Document B 132Tm-2009,Standard Form of Agreement Between Owner and Architect,Construction Manager as Adviser Edition.The Construction Manager shall not be responsible for actions taken by the Architect. §2.4 The Construction Manager shall identify a representative authorized to act on behalf of the Construction Manager with respect to the Project. §2.5 Except with the Owner's knowledge and consent,the Construction Manager shall not engage in any activity,or accept any employment, interest or contribution that would reasonably appear to compromise the Construction Manager's judgment with respect to this Project. AIA Document C132TM—2009(formerly 8801 TMCMa-1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIA" Document is protected by U.S.copyright Law and International Treaties.Unauthorized reproduction or distribution of 5 this AIAI" Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under / the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) §2.6 The Construction Manager shall maintain the following insurance for the duration of this Agreement.If any of the requirements set forth below exceed the types and limits the Construction Manager normally maintains,the Owner shall reimburse the Construction Manager for any additional cost. §2.6.1 Comprehensive General Liability with policy limits of not less than Two Million Dollars($2,000,000)for each occurrence and in the aggregate for bodily injury and property damage. §2.6.2 Automobile Liability covering owned and rented vehicles operated by the Construction Manager with policy limits of not less than One Million Dollars($ 1,000,000)combined single limit and aggregate for bodily injury and property damage. §2.6.3 The Construction Manager may use umbrella or excess liability insurance to achieve the required coverage for Comprehensive General Liability and Automobile Liability,provided that such umbrella or excess insurance results in the same type of coverage as required for the individual policies. §2.6.4 Workers' Compensation at statutory limits and Employers Liability with a policy limit of not less than One Million Dollars($ 1,000,000). §2.6.5 Professional Liability covering the Construction Manager's negligent acts,errors and omissions in its performance of services with policy limits of not less than Two Million Dollars ($2,000,000)per claim and in the aggregate. §2.6.6 The Construction Manager shall provide to the Owner certificates of insurance evidencing compliance with the requirements in this Section 2.6.The certificates will show the Owner as an additional insured on the Comprehensive General Liability,Automobile Liability,umbrella or excess policies. 'ARTICLE 3 SCOPE OF CONSTRUCTION MANAGER'S BASIC SERVICES §3.1 Definition The Construction Manager's Basic Services consist of those described in Sections 3.2 and 3.3 and include usual and customary construction coordination and scheduling,constructability review,cost estimating,and allocation of construction activities among the Multiple Prime Contractors. §3.2 Preconstruction Phase §3.2.1 The Construction Manager shall review the program furnished by the Owner and any evaluation of the Owner's program provided by the Architect,to ascertain the requirements of the Project and shall arrive at a mutual understanding of such requirements with the Owner and Architect. §3.2.2 The Construction Manager shall provide a preliminary evaluation of the Owner's program,schedule and construction budget requirements,each in terms of the other. §3.2.3 The Construction Manager shall prepare,and deliver to the Owner,a written Construction Management Plan that includes,at a minimum,the following: (1)preliminary evaluations required in Section 3.2.2,(2)a Project schedule,(3)cost estimates,(4)recommendations for Project delivery method,and(5)Contractors'scopes of Work,if multiple Contractors or fast-track construction will be used. The Construction Manager shall periodically update the Construction Management Plan over the course of the Project. §3.2.4 Based on preliminary design and other design criteria prepared by the Architect,the Construction Manager shall prepare preliminary estimates of the Cost of the Work or the cost of program requirements using area,volume or similar conceptual estimating techniques for the Architect's review and Owner's approval.If the Architect suggests alternative materials and systems,the Construction Manager shall provide cost evaluations of those alternative materials and systems and may also provide its own suggestions. §3.2.5 The Construction Manager shall expeditiously review design documents during their development and advise the Owner and Architect on proposed site use and improvements,selection of materials,and building systems and equipment.The Construction Manager shall also provide recommendations to the Owner and Architect on constructability,availability of materials and labor,sequencing for phased construction,time requirements for Init. AIA Document C132Tm—2009(formerly B801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA`' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 6 this AIA"' Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) procurement,installation and construction,and factors related to construction cost including,but not limited to,costs of alternative designs or materials,preliminary budgets,life-cycle data,and possible cost reductions. §3.2.6 The Construction Manager shall prepare and periodically update the Project schedule included in the Construction Management Plan for the Architect's review and the Owner's acceptance.The Construction Manager shall obtain the Architect's approval for the portion of the Project schedule relating to the performance of the Architect's services.The Project schedule shall coordinate and integrate the Construction Manager's services,the Architect's services,other Owner consultants' services,and the Owner's responsibilities and highlight items that could affect the Project's timely completion. §3.2.7 As the Architect progresses with the preparation of the Schematic Design,Design Development and Construction Documents,the Construction Manager shall prepare and update,at appropriate intervals agreed to by the Owner,Construction Manager and Architect,estimates of the Cost of the Work of increasing detail and refinement. The Construction Manager shall include appropriate contingencies for design,bidding or negotiating,price escalation, and market conditions in the estimates of the Cost of the Work. Such estimates shall be provided for the Architect's review and the Owner's approval.The Construction Manager shall advise the Owner and Architect if it appears that the Cost of the Work may exceed the Owner's budget and make recommendations for corrective action. §3.2.8 As the Architect progresses with the preparation of the Schematic Design,Design Development and Construction Documents,the Construction Manager shall consult with the Owner and Architect and make recommendations whenever the Construction Manager determines that design details adversely affect constructability,cost or schedules. §3.2.9 The Construction Manager shall provide recommendations and information to the Owner and Architect regarding the assignment of responsibilities for temporary Project facilities and equipment,materials and services for common use of the Contractors.The Construction Manager shall verify that such requirements and assignment of responsibilities are included in the proposed Contract Documents. §3.2.10 The Construction Manager shall provide recommendations and information to the Owner regarding the allocation of responsibilities for safety programs among the Contractors. §3.2.11 The Construction Manager shall provide recommendations to the Owner on the division of the Project into individual Contracts for the construction of various categories of Work,including the method to be used for selecting Contractors and awarding Contracts. If multiple Contracts are to be awarded,the Construction Manager shall review the Drawings and Specifications and make recommendations as required to provide that(1)the Work of the Contractors is coordinated,(2)all requirements for the Project are assigned to the appropriate Contract,(3)the likelihood of jurisdictional disputes is minimized,and(4)proper coordination is provided for phased construction. §3.2.12 The Construction Manager shall update the Project schedule to include the components of the Work,including phasing of construction,times of commencement and completion required of each Contractor,ordering and delivery of products,including those that must be ordered well in advance of construction,and the occupancy requirements of the Owner. §3.2.13 The Construction Manager shall expedite and coordinate the ordering and delivery of materials, including those that must be ordered well in advance of construction. §3.2.14 The Construction Manager shall assist the Owner in selecting,retaining and coordinating the professional services of surveyors,special consultants and testing laboratories required for the Project. §3.2.15 The Construction Manager shall provide an analysis of the types and quantities of labor required for the Project and review the availability of appropriate categories of labor required for critical phases.The Construction Manager shall make recommendations for actions designed to minimize adverse effects of labor shortages. §3.2.16 The Construction Manager shall assist the Owner in obtaining information regarding applicable requirements for equal employment opportunity programs,and other programs as may be required by governmental and for quasi governmental authorities for inclusion in the Contract Documents. Init. AIA Document C132Tm—2009(formerly B801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA" Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 7 this AIA"' Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) §3.2.17 Following the Owner's approval of the Drawings and Specifications,the Construction Manager shall update and submit the latest estimate of the Cost of the Work and the Project schedule for the Architect's review and the Owner's approval. §3.2.18 The Construction Manager shall submit the list of prospective bidders for the Architect's review and the Owner's approval. §3.2.19 The Construction Manager shall develop bidders' interest in the Project and establish bidding schedules.The Construction Manager,with the assistance of the Architect,shall issue bidding documents to bidders and conduct pre-bid conferences with prospective bidders.The Construction Manager shall issue the current Project schedule with each set of bidding documents. The Construction Manager shall assist the Architect with regard to questions from bidders and with the issuance of addenda. §3.2.20 The Construction Manager shall assist in receiving bids,prepare bid analyses and make recommendations to the Owner for the Owner's award of Contracts or rejection of bids. §3.2.21 The Construction Manager shall assist the Owner in preparing Construction Contracts and advise the Owner on the acceptability of Subcontractors and material suppliers proposed by Multiple Prime Contractors. §3.2.22 The Construction Manager shall assist the Owner in obtaining building permits and special permits for permanent improvements,except for permits required to be obtained directly by the various Multiple Prime Contractors.The Construction Manager shall verify that the Owner has paid applicable fees and assessments.The Construction Manager shall assist the Owner and Architect in connection with the Owner's responsibility for filing documents required for the approvals of governmental authorities having jurisdiction over the Project. §3.3 Construction Phase Administration of the Construction Contract §3.3.1 Subject to Section 4.3,the Construction Manager's responsibility to provide Construction Phase Services commences with the award of the initial Contract for Construction and terminates on the date the Architect issues the final Certificate for Payment. §3.3.2 The Construction Manager shall provide a staffing plan to include one or more representatives who shall be in attendance at the Project site whenever the Work is being performed. §3.3.3 The Construction Manager shall provide on-site administration of the Contracts for Construction in cooperation with the Architect as set forth below and in AIA Document A232TM-2009,General Conditions of the Contract for Construction,Construction Manager as Adviser Edition. If the Owner and Contractor modify AIA Document A232-2009,those modifications shall not affect the Construction Manager's services under this Agreement unless the Owner and the Construction Manager amend this Agreement. §3.3.4 The Construction Manager shall provide administrative,management and related services to coordinate scheduled activities and responsibilities of the Multiple Prime Contractors with each other and with those of the Construction Manager,the Owner and the Architect.The Construction Manager shall coordinate the activities of the Multiple Prime Contractors in accordance with the latest approved Project schedule and the Contract Documents. §3.3.5 Utilizing the construction schedules provided by the Multiple Prime Contractors,the Construction Manager shall update the Project schedule,incorporating the activities of the Owner,Architect,and Multiple Prime Contractors on the Project,including activity sequences and durations,allocation of labor and materials,processing of Shop Drawings,Product Data and Samples,and delivery and procurement of products,including those that must be ordered well in advance of construction.The Project schedule shall include the Owner's occupancy requirements showing portions of the Project having occupancy priority.The Construction Manager shall update and reissue the Project schedule as required to show current conditions. If an update indicates that the previously approved Project schedule may not be met,the Construction Manager shall recommend corrective action, if any,to the Owner and Architect. §3.3.6 The Construction Manager shall schedule and conduct meetings to discuss such matters as procedures, progress,coordination,and scheduling of the Work.The Construction Manager shall prepare and promptly distribute minutes to the Owner,Architect and Multiple Prime Contractors. Init. AIA Document C132T"'—2009(formerly 8801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA`°' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 8 this AIAI' Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) §3.3.7 Utilizing information from the Multiple Prime Contractors,the Construction Manager shall schedule and coordinate the sequence of construction and assignment of space in areas where the Multiple Prime Contractors are performing Work,in accordance with the Contract Documents and the latest approved Project schedule. §3.3.8 The Construction Manager shall schedule all tests and inspections required by the Contract Documents or governmental authorities,and arrange for the delivery of test and inspection reports to the Owner and Architect. §3.3.9 The Construction Manager shall endeavor to obtain satisfactory performance from each of the Multiple Prime Contractors.The Construction Manager shall recommend courses of action to the Owner when requirements of a Contract are not being fulfilled. §3.3.10 The Construction Manager shall monitor and evaluate actual costs for activities in progress and estimates for uncompleted tasks and advise the Owner and Architect as to variances between actual and budgeted or estimated costs.If the Contractor is required to submit a Control Estimate,the Construction Manager shall meet with the Owner and Contractor to review the Control Estimate.The Construction Manager shall promptly notify the Contractor if there are any inconsistencies or inaccuracies in the infortation presented.The Construction Manager shall also report the Contractor's cost control information to the Owner. §3.3.11 The Construction Manager shall develop cash flow reports and forecasts for the Project. §3.3.12 The Construction Manager shall maintain accounting records on authorized Work performed under unit costs, additional Work performed on the basis of actual costs of labor and materials,and other Work requiring accounting records. §3.3.12.1 The Construction Manager shall develop and implement procedures for the review and processing of Applications for Payment by Multiple Prime Contractors for progress and final payments. §3.3.12.2 Not more frequently than monthly,the Construction Manager shall review and certify the amounts due the respective Contractors as follows: .1 Whefe there is only one Contractor responsible for performing the Work,the Construction Manager shall,within seven days after the Construction Manager receives the Contractor's Application for Payment,review the Application,certify the amount the Construction Manager determines is due the Contractor,and forward the Contractor's Application and Certificate for Payment to the Architect. .2 Where there are Multiple Prime Contractors responsible for performing different portions of the Project,the Construction Manager shall,within seven days after the Construction Manager receives each Contractor's Application for Payment: (1)review the Applications and certify the amount the Construction Manager determines is due each Contractor,(2)prepare a Summary of Contractors' Applications for Payment by summarizing information from each Contractor's Application for Payment,(3)prepare a Project Application and Certificate for Payment,(4)certify the total amount the Construction Manager determines is due all Multiple Prime Contractors collectively,and(5)forward the Summary of Contractors'Applications for Payment and Project Application and Certificate for Payment to the Architect. §3.3.12.3 The Construction Manager's certification for payment shall constitute a representation to the Owner,based on the Construction Manager's evaluations of the Work and on the data comprising the Contractors' Applications for Payment,that,to the best of the Construction Manager's knowledge,information and belief,the Work has progressed to the point indicated and the quality of the Work is in accordance with the Contract Documents.The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion,to results of subsequent tests and inspections,to correction of minor deviations from the Contract Documents prior to completion and to specific qualifications expressed by the Construction Manager.The issuance of a Certificate for Payment shall further constitute a recommendation to the Architect and Owner that the Contractor be paid the amount certified. §3.3.12.4 The certification of an Application for Payment or a Project Application for Payment by the Construction Manager shall not be a representation that the Construction Manager has(1)made exhaustive or continuous on-site inspections to check the quality or quantity of the Work;(2)reviewed construction means,methods,techniques, sequences for the Contractor's own Work,or procedures; (3)reviewed copies of requisitions received from Init. AIA Document C132T —2009(formerly 8801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA", Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 9 this AIA1" Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment;or(4)ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. §3.3.13 The Construction Manager shall review the safety programs developed by each of the Multiple Prime Contractors solely and exclusively for purposes of coordinating the safety programs with those of the other Contractors and for making recommendations to the Owner for any safety programs not included in the Work of the Multiple Prime Contractors.The Construction Manager's responsibilities for coordination of safety programs shall not extend to direct control over or charge of the acts or omissions of the Contractor,Multiple Prime Contractors, Subcontractors,agents or employees of the Contractors or Multiple Prime Contractors or Subcontractors,or any other persons performing portions of the Work and not directly employed by the Construction Manager. §3.3.14 The Construction Manager shall determine in general that the Work of each Contractor is being performed in accordance with the requirements of the Contract Documents and notify the Owner,Contractor and Architect of defects and deficiencies in the Work.The Construction Manager shall have the authority to reject Work that does not conform to the Contract Documents and shall notify the Architect about the rejection.The failure of the Construction Manager to reject Work shall not constitute the acceptance of the Work.The Construction Manager shall record any rejection of Work in its daily log and include information regarding the rejected Work in its progress reports to the Architect and Owner pursuant to Section 3.3.20.1.Upon written authorization from the Owner,the Construction Manager may require and make arrangements for additional inspection or testing of the Work in accordance with the provisions of the Contract Documents,whether or not such Work is fabricated,installed or completed,and the Construction Manager shall give timely notice to the Architect of when and where the tests and inspections are to be made so that the Architect may be present for such procedures. §3.3.15 The Construction Manager shall advise and consult with the Owner and Architect during the performance of its Construction Phase Services.The Construction Manager shall have authority to act on behalf of the Owner only to the extent provided in this Agreement.The Construction Manager shall not have control over,charge of,or responsibility for the construction means,methods,techniques,sequences or procedures,or for safety precautions and programs in connection with the Work of each of the Contractors,since these are solely the Contractor's rights and responsibilities under the Contract Documents.The Construction Manager shall not be responsible for a Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents. The Construction Manager shall be responsible for the Construction Manager's negligent acts or omissions,but shall not have control over or charge of,and shall not be responsible for,acts or omissions of the Contractor or Multiple Prime Contractors, Subcontractors,or their agents or employees,or any other persons or entities performing portions of the Work. §3.3.16 The Construction Manager shall transmit to the Architect requests for interpretations and requests for information of the meaning and intent of the Drawings and Specifications with its written recommendation,and assist in the resolution of questions that may arise. §3.3.17 The Construction Manager shall review requests for changes,assist in negotiating Contractors' proposals, submit recommendations to the Architect and Owner,and,if they are accepted,prepare Change Orders and Construction Change Directives that incorporate the Architect's modifications to the Contract Documents. §3.3.18 The Construction Manager shall assist the Initial Decision Maker in the review,evaluation and documentation of Claims,subject to Section 4.3.1.7. §3.3.19 Utilizing the submittal schedules provided by each Contractor,the Construction Manager shall prepare,and revise as necessary,a Project submittal schedule incorporating information from the Owner,Owner's consultants, Owner's separate contractors and vendors,governmental agencies,and all other participants in the Project under the management of the Construction Manager.The Project submittal schedule and any revisions shall be submitted to the Architect for approval. The Construction Manager shall promptly review all Shop Drawings, Product Data, Samples and other submittals from the Multiple Prime Contractors for compliance with the submittal requirements of the Contract,coordinate submittals with information contained in related documents,and transmit to the Architect those that the Construction Manager recommends for approval.The Construction Manager's actions shall be taken in accordance with the Project submittal schedule approved by the Architect,or in the absence of an approved Project submittal schedule,with such reasonable promptness as to cause no delay in the Work or in the activities of the Contractor,other Multiple Prime Contractors,the Owner,or the Architect. Init. AIA Document C132TM —2009(formerly 8801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIAI"' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 10 this AIAI` Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) §3.3.20 The Construction Manager shall keep a daily log containing a record of weather,each Contractor's Work on the site,number of workers,identification of equipment,Work accomplished,problems encountered,and other similar relevant data as the Owner may require. §3.3.20.1 The Construction Manager shall record the progress of the Project. On a monthly basis,or otherwise as agreed to by the Owner,the Construction Manager shall submit written progress reports to the Owner and Architect, showing percentages of completion and other information identified below: .1 Work completed for the period; .2 Project schedule status; .3 Submittal schedule and status report,including a summary of remaining and outstanding submittals; .4 Request for information,Change Order,and Construction Change Directive status reports; .5 Tests and inspection reports; .6 Status report of nonconforming and rejected Work; .7 Daily logs; .8 Summary of all Multiple Prime Contractors' Applications for Payment; .9 Cumulative total of the Cost of the Work to date including the Construction Manager's compensation and reimbursable expenses at the job site,if any; .10 Cash-flow and forecast reports; and .11 Any other items the Owner may require: §3.3.20.2 In addition,for Projects constructed on the basis of the Cost of the Work,the Construction Manager shall include the following additional information in its progress reports: .1 Contractor's work force report; .2 Equipment utilization report; .3 Cost summary,comparing actual costs to updated cost estimates;and .4 Any other items as the Owner may require: §3.3.21 Utilizing the documents provided by the Contractor,the Construction Manager shall maintain at the site one copy of all Contracts,Drawings,Specifications,addenda,Change Orders and other Modifications,in good order and marked currently to record all changes and selections made during construction,and in addition,approved Shop Drawings,Product Data,Samples and similar required submittals.The Construction Manager shall maintain records, in duplicate,of principal building layout lines,elevations of the bottom of footings,floor levels and key site elevations certified by a qualified surveyor or professional engineer.The Construction Manager shall make all such records available to the Architect and the Contractor,and upon completion of the Project,shall deliver them to the Owner. §3.3.22 The Construction Manager shall arrange for the delivery,storage,protection and security of Owner-purchased materials,systems and equipment that are a part of the Project until such items are incorporated into the Work. §3.3.23 With the Architect and the Owner's maintenance personnel,the Construction Manager shall observe the Contractor's or Multiple Prime Contractors' final testing and start-up of utilities,operational systems and equipment and observe any commissioning as the Contract Documents may require. §3.3.24 When the Construction Manager considers each Contractor's Work or a designated portion thereof is substantially complete,the Construction Manager shall,jointly with the Contractor,prepare for the Architect a list of incomplete or unsatisfactory items and a schedule for their completion.The Construction Manager shall assist the Architect in conducting inspections to determine whether the Work or designated portion thereof is substantially complete. §3.3.25 When the Work or designated portion thereof is substantially complete,the Construction Manager shall prepare,and the Construction Manager and Architect shall execute,a Certificate of Substantial Completion.The Construction Manager shall submit the executed Certificate to the Owner and Contractor.The Construction Manager shall coordinate the correction and completion of the Work.Following issuance of a Certificate of Substantial Init. AIA Document C132Tm—2009(formerly 8801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA" Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 11 this AIA" Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) Completion of the Work or a designated portion thereof,the Construction Manager shall evaluate the completion of the Work of the Contractor or Multiple Prime Contractors and make recommendations to the Architect when Work is ready for final inspection.The Construction Manager shall assist the Architect in conducting final inspections. §3.3.26 The Construction Manager shall forward to the Owner,with a copy to the Architect,the following information received from the Contractor or Multiple Prime Contractors:(1)certificates of insurance received from the Contractor or Multiple Prime Contractors;(2)consent of surety or sureties,if any,to reduction in or partial release of retainage or the making of final payment;(3)affidavits,receipts,releases and waivers of liens or bonds indemnifying the Owner against liens;and(4)any other documentation required of the Contractor under the Contract Documents,including warranties and similar submittals. §3.3.27 The Construction Manager shall deliver all keys,manuals,record drawings and maintenance stocks to the Owner.The Construction Manager shall forward to the Architect a final Project Application for Payment and Project Certificate for Payment or final Application for Payment and final Certificate for Payment upon the Contractor's compliance with the requirements of the Contract Documents. §3.3.28 Duties,responsibilities and limitations of authority of the Construction Manager as set forth in the Contract Documents shall not be restricted,modified or extended without written consent of the Owner,Construction Manager, Architect,Contractor and Multiple Prime Contractors. Consent shall not be unreasonably withheld. §3.3.29 Upon request of the Owner,and prior to the expiration of one year from the date of Substantial Completion, the Construction Manager shall,without additional compensation,conduct a meeting with the Owner to review the facility operations and performance. ARTICLE 4 ADDITIONAL SERVICES §4.1 Additional Services listed below are not included in Basic Services but may be required for the Project.The Construction Manager shall provide the listed Additional Services only if specifically designated in the table below as the Construction Manager's responsibility,and the Owner shall compensate the Construction Manager as provided in Section 11.2. (Designate the Additional Services the Construction Manager shall provide in the second column of the table below. In the third column indicate whether the service description is located in Section 4.2 or in an attached exhibit.If in an exhibit, identify the exhibit.) Services Responsibility Location of Service Description (Construction Manager, (Section 4.2 below or in an exhibit Owner or attached to this document and Not Provided identi ied below 4.1.1 Measured drawings §4.1.2 Architectural interior design B252Tm-2007 4.1.3 Tenant-related services 4.1.4 Commissioning 13211TM-2007 4.1.5 LEEDO certification B214Tm -2012 §4.1.6 Furniture,furnishings,and equipment design B253Tm-2007 §4.2 Insert a description of each Additional Service designated in Section 4.1,if not further described in an exhibit attached to this document. n/a §4.3 Additional Services may be provided after execution of this Agreement,without invalidating this Agreement. Except for services required due to the fault of the Construction Manager,any Additional Services provided in accordance with this Section 4.3 shall entitle the Construction Manager to compensation pursuant to Section 11.3. AIA Document C132Tm—2009(formerly 8801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIA`"' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 2 this AIA"" Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under / the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) §4.3.1 Upon recognizing the need to perform the following Additional Services,the Construction Manager shall notify the Owner with reasonable promptness and explain the facts and circumstances giving rise to the need.The Construction Manager shall not proceed to provide the following services until the Construction Manager receives the Owner's written authorization: .1 Services necessitated by a change in the Initial Information,previous instructions or approvals given by the Owner,or a material change in the Project including,but not limited to,size,quality,complexity, the Owner's schedule or budget for Cost of the Work,or procurement or delivery method,or bid packages in addition to those listed in Section l.1.6; .2 Services necessitated by the enactment or revision of codes,laws or regulations or official interpretations after the date of this Agreement; .3 Preparation of documentation for alternate bid or proposal requests proposed by the Owner; .4 Preparation for,and attendance at,a public presentation,meeting or hearing; .5 Preparation for,and attendance at a dispute resolution proceeding or legal proceeding,except where the Construction Manager is party thereto; .6 Providing consultation concerning replacement of Work resulting frorn fire or other cause during construction and furnishing services required in connection with the replacement of such Work; .7 Assistance to the Initial Decision Maker, if other than the Architect;or .8 Service as the Initial Decision Maker. §4.3.2 To avoid delay in the Construction Phase,the Construction Manager shall provide the following Additional Services,notify the Owner with reasonable promptness,and explain the facts and circumstances giving rise to the need. If the Owner subsequently determines that all or parts of those services are not required,the Owner shall give prompt written notice to the Construction Manager,and the Owner shall have no further obligation to compensate the Construction Manager for those services: .1 Services in evaluating an extensive number of Claims submitted by a Contractor or others in connection with the Work when the Architect is serving as the Initial Decision Maker. .2 To the extent the Construction Manager's Basic Services are affected,providing Construction Phase Services 60 days after(1)the date of Substantial Completion of the Work or(2)the anticipated date of Substantial Completion, identified in Initial Information,whichever is earlier. .3 Services required in an emergency to coordinate the activities of a Contractor or Multiple Prime Contractors in the event of risk of personal injury or serious property damage,consistent with Section 3.3.13. §4.3.3 If the services covered by this Agreement have not been completed within n/a ( n/a )months of the date of this Agreement,through no fault of the Construction Manager,extension of the Construction Manager's services beyond that time shall be compensated as Additional Services. ARTICLE 5 OWNER'S RESPONSIBILITIES §5.1 Unless otherwise provided for under this Agreement,the Owner shall provide information in a timely manner regarding requirements for and limitations on the Project,including the Owner's program,other objectives,schedule, constraints and criteria,special equipment,systems,and site requirements.Within 15 days after receipt of a written request from the Construction Manager,the Owner shall furnish the requested information as necessary and relevant for the Construction Manager to evaluate,give notice of,or enforce any lien rights, if any. §5.2 The Owner shall establish and periodically update the Owner's budget for the Project,including(1)the budget for the Cost of the Work as defined in Section 6.1,(2)the Owner's other costs,and(3)reasonable contingencies related to all of these costs.If the Owner significantly increases or decreases the Owner's budget for the Cost of the Work,the Owner shall notify the Construction Manager and Architect.The Owner and the Architect, in consultation with the Construction Manager,shall thereafter agree to a corresponding change in the budget for the Cost of the Work or in the Project's scope and quality. §5.3 The Owner acknowledges that accelerated,phased or fast-track scheduling provides a benefit,but also carries with it the risk of additional costs.If the Owner selects accelerated,phased or fast-track scheduling,the Owner agrees to include in the budget for the Project sufficient contingencies to cover such costs. §5.4 The Owner shall retain an Architect to provide services,duties and responsibilities as described in AIA Document B 132-2009, Standard Form of Agreement Between Owner and Architect,Construction Manager as Init. AIA Document C132Tm-2009(formerly B801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA`"' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 13 this AIA,` Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) Adviser Edition.The Owner shall provide the Construction Manager a copy of the executed agreement between the Owner and Architect,and any further modifications to the agreement. §5.5 The Owner shall identify a representative authorized to act on the Owner's behalf with respect to the Project.The Owner shall render decisions pertaining to documents the Construction Manager submits in a timely manner in order to avoid unreasonable delay in the orderly and sequential progress of the Construction Manager's services. §5.6 Unless provided by the Construction Manager,the Owner shall furnish surveys to describe 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;designated wetlands;adjacent drainage;rights-of-way,restrictions,easements, encroachments,zoning,deed restrictions,boundaries and contours of the site; locations,dimensions and necessary data with respect 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 the information on the survey shall be referenced to a Project benchmark. §5.7 Unless provided by the Construction Manager,the Owner shall furnish services of geotechnical engineers,which may include but are not limited to test borings,test pits,determinations of soil bearing values,percolation tests, evaluations of hazardous materials,seismic evaluation,ground corrosion tests and resistivity tests,including necessary operations for anticipating subsoil conditions,with written reports and appropriate recommendations. §5.8 The Owner shall coordinate the services of its own consultants with those services provided by the Construction Manager.Upon the Construction Manager's request,the Owner shall furnish copies of the scope of services in the contracts between the Owner and the Owner's consultants.The Owner shall furnish the services of consultants other than those designated in this Agreement,or authorize the Construction Manager to furnish them as an Additional Service,when the Construction Manager requests such services and demonstrates that they are reasonably required by the scope of the Project. The Owner shall require that its consultants maintain professional liability insurance and other liability insurance as appropriate to the services provided. §5.9 The Owner shall furnish tests,inspections and reports required by law or the Contract Documents,such as structural,mechanical,and chemical tests,tests for air and water pollution,and tests for hazardous materials. §5.10 The Owner shall furnish all legal,insurance and accounting services,including auditing services,that may be reasonably necessary at any time for the Project to meet the Owner's needs and interests. §5.11 The Owner shall provide prompt written notice to the Construction Manager and Architect if the Owner becomes aware of any fault or defect in Project,including errors,omissions or inconsistencies in the Architect's Instruments of Service or any fault or defect in the Construction Manager's services. §5.12 The Owner reserves the right to perform construction and operations related to the Project with the Owner's own forces,and to award contracts in connection with the Project which are not part of the Construction Manager's responsibilities under this Agreement.The Construction Manager shall notify the Owner if any such independent action will interfere with the Construction Manager's ability to perform the Construction Manager's responsibilities under this Agreement. When performing construction or operations related to the Project,the Owner agrees to be subject to the same obligations and to have the same rights as the Contractors. §5.13 Except as otherwise provided in this Agreement,or when direct communications have been specially authorized,the Owner shall endeavor to communicate with the Contractor and the Construction Manager's consultants through the Construction Manager about matters arising out of or relating to the Contract Documents.The Owner shall promptly notify the Construction Manager of any direct communications that may affect the Construction Manager's services. §5.14 Before executing the Contract for Construction,the Owner shall coordinate the Construction Manager's duties and responsibilities set forth in the Contract for Construction with the Construction Manager's services set forth in this Agreement.The Owner shall provide the Construction Manager a copy of the executed agreements between the Owner and Contractors, including the General Conditions of the Contracts for Construction. Init. AIA Document C132T'"—2009(formerly 8801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA" Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 14 this AIA' Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) §5.15 The Owner shall provide the Construction Manager access to the Project site prior to commencement of the Work and shall obligate the Contractor to provide the Construction Manager access to the Work wherever it is in preparation or progress. ARTICLE 6 COST OF THE WORK §6.1 For purposes of this Agreement,the Cost of the Work shall be the total cost to the Owner to construct all elements of the Project designed or specified by the Architect and shall include the contractors' general conditions costs, overhead and profit. The Cost of the Work includes the compensation of the Construction Manager and Construction Manager's Consultants during the Construction Phase only,including compensation for reimbursable expenses at the job site,if any.The Cost of the Work does not include the compensation of the Architect,the costs of the land, rights-of-way,financing,contingencies for changes in the Work or other costs that are the responsibility of the Owner. §6.2 The Owner's budget for the Cost of the Work is provided in Initial Information,and may be adjusted throughout the Project as required under Sections 5.2 and 6.4.Evaluations of the Owner's budget,preliminary estimates for the Cost of the Work and detailed estimates of the Cost of the Work prepared by the Construction Manager represent the Construction Manager's judgment as a person or entity familiar with the construction industry. It is recognized, however,that neither the Construction Manager nor the Owner has control over the cost of labor,materials or equipment,over Contractors' methods of determining bid prices,or over competitive bidding,market or negotiating conditions. Accordingly,the Construction Manager cannot and does not warrant or represent that bids or negotiated prices will not vary from the budget proposed,established or approved by the Owner,or from any cost estimate or evaluation prepared by the Construction Manager. §6.3 If the Architect is providing detailed cost estimating services as an Additional Service,and a discrepancy exists between the Construction Manager's cost estimates and the Architect's cost estimates,the Architect and the Construction Manager shall work cooperatively to conform the cost estimates to one another. §6.4 If,prior to the conclusion of the Design Development Phase,the Construction Manager's estimate of the Cost of the Work exceeds the Owner's budget for the Cost of the Work,the Construction Manager,in consultation with the Architect,shall make appropriate recommendations to the Owner to adjust the Project's size,quality or budget,and the Owner shall cooperate with the Construction Manager and Architect in making such adjustments. §6.5 If the estimate of the Cost of the Work at the conclusion of the Design Development Phase exceeds the Owner's budget for the Cost of the Work,the Owner shall .1 give written approval of an increase in the budget for the Cost of the Work; .2 in consultation with the Construction Manager and Architect,revise the Project program,scope,or quality as required to reduce the Cost of the Work;or .3 implement any other mutually acceptable alternative. ARTICLE 7 COPYRIGHTS AND LICENSES The Construction Manager and the Construction Manager's consultants,if any,shall not own or claim a copyright in the Instruments of Service.The Construction Manager,and the Owner warrant that in transmitting Instruments of Service,or any other information,the transmitting party is the copyright owner of such information or has permission from the copyright owner to transmit such information for its use on the Project.If the Owner and Construction Manager intend to transmit Instruments of Service or any other information or documentation in digital form,they shall endeavor to establish necessary protocols governing such transmissions. ARTICLE 8 CLAIMS AND DISPUTES §8.1 General §8.1.1 The Owner and Construction Manager shall commence all claims and causes of action,whether in contract, tort,or otherwise,against the other arising out of or related to this Agreement in accordance with the requirements of the method of binding dispute resolution selected in this Agreement within the period specified by applicable law,but in any case not more than 10 years after the date of Substantial Completion of the Work.The Owner and Construction Manager waive all claims and causes of action not commenced in accordance with this Section 8.1.1. §8.1.2 To the extent damages are covered by property insurance,the Owner and Construction Manager waive all rights against each other and against the contractors,consultants,agents and employees of the other for damages, except such rights as they may have to the proceeds of such insurance as set forth in AIA Document A232-2009, Init. AIA Document C132Tm—2009(formerly 13801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA` Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 15 this AIAI' Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) General Conditions of the Contract for Construction,CMa Edition.The Owner or the Construction Manager,as appropriate,shall require of the contractors,consultants,agents and employees of any of them similar waivers in favor of the other parties enumerated herein. §8.1.3 Construction Manager agrees to indemnify and hold hannless the City of Aspen,its officers,employees,insurers, and self-insurance pool,from and against all liability,claims,and demands,on account of injury,loss,or damage, including without limitation claims arising from bodily injury,personal injury,sickness,disease,death,property loss or damage,or any other loss of any kind whatsoever,which arise out of or are in any manner connected with this contract,to the extent and for an amount represented by the degree or percentage such injury,loss,or damage is caused in whole or in part by,or is claimed to be caused in whole or in part by,the wrongful act,omission,error,professional error,mistake, negligence,or other fault of the Construction Manager,any subcontractor of the Construction Manager,or any officer, employee,representative,or agent of the Construction Manager or of any subcontractor of the Construction Manager,or which arises out of any workmen's compensation claim of any employee of the Architect or of any employee of any subcontractor of the Construction Manager.The Construction Manager agrees to investigate,handle,respond to,and to provide defense for and defend against,any such liability,claims or demands at the sole expense of the Construction Manager,or at the option of the City,agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with,any such liability,claims,or demands.If it is detennined by the final judgment of a court of competent jurisdiction that such injury,loss,or damage was caused in whole or in part by the act,omission,or other fault of the City, its officers,or its employees,the City shall reimburse the Construction Manager for the portion of the judgment attributable to such act,omission,or other fault of the City,its officers,or employees. (Paragraph deleted) §8.2 Mediation §8.2.1 Any claim,dispute or other matter in question arising out of or related to this Agreement may be subject to mediation as a condition precedent to binding dispute resolution.If such matter relates to or is the subject of a lien arising out of the Construction Manager's services,the Construction Manager may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the matter by mediation or by binding dispute resolution. §8.2.2 The Owner and Construction Manager shall endeavor to resolve claims,disputes and other matters in question between thein by mediation which, unless the parties mutually agree otherwise,shall be administered by a mutually acceptable mediation group,using one mutually acceptable mediator,in accordance with its Construction Industry Mediation Procedures in effect on the date of the Agreement. A request for mediation shall be made in writing, delivered to the other party to the Agreement,and filed with the person or entity administering the mediation. The request may be made concurrently with the filing of a complaint or other appropriate demand for binding dispute resolution but,in such event,mediation shall proceed in advance of binding dispute resolution proceedings,which shall be stayed pending mediation for a period of 60 days from the date of filing,unless stayed for a longer period by agreement of the parties or court order.If an arbitration proceeding is stayed pursuant to this section,the parties may nonetheless proceed to the selection of the arbitrator(s)and agree upon a schedule for later proceedings. §8.2.3 The parties shall share the mediator's fee and any filing fees equally.The mediation shall be held in the place where the Project is located,unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. §8.2.41f the parties do not resolve a dispute through mediation pursuant to this Section 8.2,the method of binding dispute resolution shall be the following: (Check the appropriate box.If the Owner and Construction Manager do not.select a method of binding dispute resolution below, or do not subsequently agree in writing to a binding dispute resolution method other than litigation, the dispute will be resolved in a court of competent jurisdiction.) [ ] Arbitration pursuant to Section 8.3 of this Agreement [X ] Litigation in District Court,Pitkin County, State of Colorado. [ ] Other: (Specify) Init. AIA Document C132T —2009(formerly B801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA"' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 16 this AIA' Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximurn extent possible under / the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) §8.3 Arbitration—Not Applicable (Paragraphs deleted) ARTICLE 9 TERMINATION OR SUSPENSION §9.1 If the Owner fails to make payments to the Construction Manager of undisputed amounts properly due in accordance with this Agreement,the Construction Manager may provide written notice of such failure. . If the Owner fails to make payment within fourteen(14)days of receipt of such notice,such failure shall be considered substantial nonperformance and cause for termination or,at the Construction Manager's option,cause for suspension of perfonnance of services under this Agreement. If the Construction Manager elects to suspend services,the Construction Manager shall give an additional seven days'written notice to the Owner before suspending services.In the event of a suspension of services,the Construction Manager shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services. Before resuming services,the Construction Manager shall be paid all sums due prior to suspension and any expenses incurred in the interruption and resumption of the Construction Manager's services.The Construction Manager's fees for the remaining services and the time schedules shall be equitably adjusted. §9.2 If the Owner suspends the Project,the Construction Manager shall be compensated for services performed prior to notice of such suspension.When the Project is resumed,the Construction Manager shall be compensated for expenses incurred in the interruption and resumption of the Construction Manager's services.The Construction Manager's fees for the remaining services and the time schedules shall be equitably adjusted. §9.3 If the Owner suspends the Project for more than 90 cumulative days for reasons other than the fault of the Construction Manager,the Construction Manager may terminate this Agreement by giving not less than seven days' written notice. §9.4 Either party may terminate this Agreement upon not less than seven days'written notice should the other party fail substantially to perform in accordance with the terms of this Agreement through no fault of the party initiating the termination. §9.5 The Owner may tenninate this Agreement upon not less than seven days' written notice to the Construction Manager for the Owner's convenience and without cause. §9.6 In the event of termination not the fault of the Construction Manager,the Construction Manager shall be compensated for services performed prior to termination,together with Reimbursable Expenses then due and all Tennination Expenses as defined in Section 9.7. §9.7 Termination Expenses are in addition to compensation for the Construction Manager's services and include expenses directly attributable to termination for which the Construction Manager is not otherwise compensated. (Paragraphs deleted) ARTICLE 10 MISCELLANEOUS PROVISIONS §10.1 This Agreement shall be governed by the law of the place where the Project is located,except that if the parties have selected arbitration as the method of binding dispute resolution,the Federal Arbitration Act shall govern Section 8.3. §10.2 Terms in this Agreement shall have the same meaning as those in AIA Document A232-2009,General Conditions of the Contract for Construction,CMa Edition,except for purposes of this Agreement,the tenn"Work" shall include the work of all Contractors under the administration of the Construction Manager. §10.3 The Owner and Construction Manager,respectively,bind themselves,their agents,successors,assigns and legal representatives to this Agreement.Neither the Owner nor the Construction Manager shall assign this Agreement Init. AIA Document C132TM—2009(formerly B801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA" Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 17 this AIA11 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under t the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) without the written consent of the other,except that the Owner may assign this Agreement to a lender providing financing for the Project if the lender agrees to assume the Owner's rights and obligations under this Agreement. §10.4 If the Owner requests the Construction Manager to execute certificates,the proposed language of such certificates shall be submitted to the Construction Manager for review at least 14 days prior to the requested dates of execution. If the Owner requests the Construction Manager to execute consents reasonably required to facilitate assignment to a lender,the Construction Manager shall execute all such consents that are consistent with this Agreement,provided the proposed consent is submitted to the Construction Manager for review at least 14 days prior to execution.The Construction Manager shall not be required to execute certificates or consents that would require knowledge,services or responsibilities beyond the scope of this Agreement. §10.5 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Construction Manager. §10.6 Unless otherwise required in this Agreement,the Construction Manager shall have no responsibility for the discovery,presence,handling,removal or disposal of,or exposure of persons to,hazardous materials or toxic substances in any form at the Project site. §10.7 The Construction Manager shall have the right to include photographic or artistic representations of the design of the Project among the Construction Manager's promotional and professional materials.The Construction Manager shall be given reasonable access to the completed Project to make such representations. However,the Construction Manager's materials shall not include the Owner's confidential or proprietary infonnation. The Owner shall provide professional credit for the Construction Manager in the Owner's promotional materials for the Project. §10.8 If the Construction Manager or Owner receives information specifically designated by the other party as "confidential"or"business proprietary,"the receiving party shall keep such information strictly confidential and shall not disclose it to any other person except to(1)its employees, (2)those who need to know the content of such information in order to perform services or construction solely and exclusively for the Project,or(3)its consultants and contractors whose contracts include similar restrictions on the use of confidential information. §10.9 Insurance and Bonds The Contractor shall purchase and maintain insurance and provide bonds as set forth in Article 11 of AIA Document A232-2009. (State bonding requirements, if any, and limits of liability for insurance required in Article 11 of AIA Document A232-2009) Type of Insurance or Bond Limit of Liability or Bond Amount($0.00) Comprehensive General Liability $2,000,000.00 for each occurrence and in the aggregate for bodily injury and property damage. Automobile Liability Covering owned and rented vehicles:$1,000,000.00 combined single limit and aggregate for bodily injury and property damage Workers' Compensation Statutory limits and Employers Liability with a policy limit of not less than$1,000,000.00. Professional Liability Covering negligent acts,errors and omissions,not less than $2,000,000.00 per claim and in the aggregate. The Construction Phase will require Maintenance,Payment and Performance Bonds in the amount of 100%of the contract value. Payment Bond shall expire one(1)year after the completion of the project. Performance and Maintenance Bonds shall expire two(2)years after the completion of the project. Init. AIA Document C132T"'—2009(formerly 8801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA" Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 18 this AIA1" Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under I the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) ARTICLE 11 COMPENSATION §11.1 For the Construction Manager's Basic Services described under Article 3,the Owner shall compensate the Construction Manager as follows: §11.1.1 For Preconstruction Phase Services in Section 3.2: Part 1 Services based on attached exhibits: Exhibit A.Artaic Proposal 2/6/2020 Exhibit B. City of Aspen RFP 2020-51088 Subject to potential future amendment to add Parts 2 and 3 per attached exhibits A&B The Construction Manager will be paid monthly based on actual hours,on the basis of hourly billing rates in Exhibit A Artaic Proposal 2/6/2020,rates have been transcribed below: Team Member Role 2020 Hourly Billing Rate Adam Williams Principal $150 Chris Penney Project Director, SPM $130 Ryan Brown Project Manager $120 HOURLY RATES 2020 2021 2022 2023 2024 Principal $150.00 $154.50 $159.14 $163.91 $168.83 Sr.Project Manager $130.00 $133.90 $137.92 $142.05 $146.32 Project Manager $120.00 $123.60 $127.31 $131.13 $135.06 §11.1.2 For Construction Phase Services in Section 3.3: Part 1 ONLY until otherwise amended.This contract is subject to potential future amendment to add Parts 2 and 3 per attached exhibits A&B §11.2 For Additional Services designated in Section 4.1,the Owner shall compensate the Construction Manager as follows: (Insert amount of, or basis for, compensation. If necessary, list specific services to which particular methods of compensation apply) n/a §11.3 For Additional Services that may arise during the course of the Project, including those under Section 4.3,the Owner shall compensate the Construction Manager as follows: (Insert amount of, or basis for, compensation.) n/a §11.4 Compensation for Additional Services of the Construction Manager's consultants when not included in Sections 11.2 or 11.3,shall be the amount invoiced to the Construction Manager plus n/a percent(n/a),or as otherwise stated below: n/a §11.5 The hourly billing rates for services of the Construction Manager and the Construction Manager's consultants,if any,are set forth below. The rates shall be adjusted in accordance with the Construction Manager's and Construction Manager's consultants' normal review practices. (If applicable, attach an exhibit of hourly billing rates or insert them below.) Init. AIA Document C1321—2009(formerly 8801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA`"' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 19 this AIA11 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under t the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) Part 1 Services based on attached exhibits: Exhibit A.Artaic Proposal 2/6/2020 Exhibit B. City of Aspen RFP 2020-51088 Subject to potential future amendment to add Parts 2 and 3 per attached exhibits A&B The Construction Manager will be paid monthly based on actual hours,on the basis of hourly billing rates in Exhibit A Artaic Proposal 2/6/2020,rates have been transcribed below: Team Member Role 2020 Hourly Billing Rate Adam Williams Principal $150 Chris Penney Project Director,SPM $130 Ryan Brown Project Manager $120 HOURLY RATES 2020 2021 2022 2023 2024 Principal $150.00 $154.50 $159.14 $163.91 $168.83 Sr.Project Manager $130.00 $133.90 $137.92 $142.05 $146.32 Project Manager $120.00 $123.60 $127.31 $131.13 $135.06 Employee or Category Rate($0.00) Listed above Listed above §11.6 Compensation for Reimbursable Expenses §11.6.1 Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Construction Manager and the Construction Manager's consultants directly related to the Project,as follows: .1 Transportation and authorized out-of-town travel and subsistence; .2 Long distance services,dedicated data and communication services,teleconferences,Project Web sites,and extranets; .3 Fees paid for securing approval of authorities having jurisdiction over the Project; .4 Printing,reproductions,plots,standard fonn documents; .5 Postage,handling and delivery; .6 Expense of overtime work requiring higher than regular rates,if authorized in advance by the Owner; .7 Professional photography,and presentation materials requested by the Owner; .8 Construction Manager's consultant's expense of professional liability insurance dedicated exclusively to this Project,or the expense of additional insurance coverage or limits if the Owner requests such insurance in excess of that nonnally carried by the Construction Manager's consultants; .9 All taxes levied on professional services and on reimbursable expenses; .10 Site office expenses;and .11 Other similar Project-related expenditures. §11.6.2 For Reimbursable Expenses the compensation shall be the expenses incurred by the Construction Manager and the Construction Manager's consultants plus n/a percent(n/a%)of the expenses incurred. §11.7 Payments to the Construction Manager §11.7.1 An initial payment of zero ($0.00 )shall be tnade upon execution of this Agreement and is the minimum payment under this Agreement.It shall be credited to the Owner's account in the final invoice. §11.7.2 Unless otherwise agreed,payments for services shall be made monthly in proportion to services performed. Payments are due and payable upon presentation of the Construction Manager's invoice.Amounts unpaid forty-five (45)days after the invoice date shall bear interest at the rate entered below,or in the absence thereof at the legal rate prevailing from time to time at the principal place of business of the Construction Manager. (Insert rate of monthly or annual interest agreed upon.) 1.5 % Init. AIA Document C1321-2009(formerly 13801 TMCMa-1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA" Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 20 this AIA1 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) §11.7.3 The Owner shall not withhold amounts from the Construction Manager's compensation to impose a penalty or liquidated damages on the Construction Manager,or to offset sums requested by or paid to Contractors for the cost of changes in the Work unless the Construction Manager agrees or has been found liable for the amounts in a binding dispute resolution proceeding. §11.7.4 Records of Reimbursable Expenses,expenses pertaining to Additional Services,and services perfortned on the basis of hourly rates shall be available to the Owner at mutually convenient times. ARTICLE 12 SPECIAL TERMS AND CONDITIONS Special terms and conditions that modify this Agreement are as follows: §12.1 Tax-Exemption. All purchases of supplies,construction or building materials shall not include Federal Excise Taxes or Colorado State or local sales or use taxes. The Owner's State of Colorado tax identification number is 98-04557. The Owner's Federal Tax Identification Number is 84-60000563. §12.2 Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in,or be construed as establishing an employment relationship. CMa shall be, and shall perform as,an Independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the Owner. No agent,employee,or servant of CMa shall be,or shall be deemed to be,the employee,agent or servant of the Owner. Owner is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of the CMa. None of the benefits provided by Owner to its employees including,but not limited to,workers'compensation insurance and unemployment insurance,are available from Owner to the employees,agents or servants of CMa. CMa shall be solely and entirely responsible for its acts and for the acts of CMa's agents,employees,servants and consultants during the performance of this contract. CMa shall indemnify Owner against all liability and loss in connection with,and shall assume full responsibility for payment of all federal,state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law,with respect to CMa and/or CMa's employees engaged in performance of the services agreed to herein. §12.3 Notice. Any written notices as called for herein may be hand delivered to the respective persons and/or addresses listed below or mailed by certified mail return receipt requested,to: Owner: City Manager City of Aspen 130 South Galena Street Aspen,Colorado 81611 With a copy to: James R.True,Esq. City Attorney 130 South Galena Street Aspen,Colorado 81611 §12.4 Non-Discrimination. No discrimination because of race,color,creed,sex,marital status,affectional or sexual orientation,family responsibility,national origin,ancestry,handicap,or religion shall be made in the employment of persons to perform services under this contract. CMa agrees to meet all of the requirements of Owner's municipal code, Section 13-98,pertaining to non-discrimination in employment. §12.5 Waiver. The waiver by the Ownre of any term,covenant,or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other tern. No teen,covenant,or condition of this Agreement can be waived except by the written consent of the Owner.Forbearance or indulgence by the Owner in any regard whatsoever shall not constitute a waiver of any term,covenant,or condition to be performed by CMa to which the same may apply and,until complete performance by CMa of said term,covenant or condition,the Owner shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. Init. AIA Document C1321—2009(formerly 6801 T""CMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA" Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution or 21 this AIAc' Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) §12.6 Execution of Agreement by Owner.This agreement shall be binding upon all parties hereto and their respective heirs,executors,administrators,successors and assigns. Notwithstanding anything to the contrary contained herein,this Agreement shall not be binding upon the Owner unless duly executed in accordance with the requirements of the Owner's municipal code,by the Mayor of the City of Aspen,or a duly authorized official in his absence,following approval of City Council. §12.7 Illegal Aliens—CRS 8-17.5-101 &24-76.5-101 1. Purpose. During the 2006 Colorado legislative session,the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073)and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions,including the Owner,from knowingly hiring an illegal alien to perform work under a contract,or to knowingly contract with a Consultant who knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. 2. Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the Owner. 1. "E-verify program"means the electronic employment verification program created in Public Law 208, 1041h Congress,as amended and expanded in Public Law 156, 1081h Congress,as amended,that is jointly administered by the United States Department of Homeland Security and the social security Administration or its successor program. 2. "Department program" means the employment verification program established pursuant to section 8-17.5-105(5)(c). 3. "Public Contract for Services" means this Agreement. 4. "Services" means the furnishing of labor,time,or effort by a Consultant or a subconsultant not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. 3. By signing this document,Consultant certifies and represents that at this time: 1. Consultant shall confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services;and 2. Consultant has participated or attempted to participate in either the e-verity program or the department program in order to verify that new employees are not illegal aliens. 4. Consultant hereby confirms that: 1. Consultant shall not knowingly employ or contract with an ellgal alien to preform work under the Public Contract for Services. 2. Consultant shall not enter into a contract with a subconsultant that fails to certify to the Consultant that the subconsultant shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. 3. Consultant has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services through participation in either the e-verify program or the department program. Init. AIA Document C132Tm—2009(formerly B801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA`` Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 22 this AIA11 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under I the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) 4. Consultant shall not use either the e-verify program or the department program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. 5. If Consultant obtains actual knowledge that a subconsultant performing work under the Public Contract for Services knowingly employs or contracts with an illegal alien,Consultant shall: 1. Notify such subconsultant and the Owner within three days that Consultant has actual knowledge that the subconsultant is employing or subcontracting with an illegal alien; and 2. Terminate the subcontract with the subconsultant if within three days of receiving the notice required pursuant to this section the subconsultant does not step employing or contracting with the illegal alien;except that Consultant shall not terminate the Public Contract for Services with the subconsultant if during such three days the subconsultant provides information to establish that the subconsultant has not knowingly employed or contracted with an illegal alien. 6. Consultant shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102(5)C.R.S. 7. If Consultant violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102,C.R.S.the Owner may terminate this Agreement.If this agreement is so terminated,Consultant shall be liable for actual damages to the Owner arising out of Consultant's violation of Subsection 8-17.5-102 C.R.S. §12.8 It is agreed that neither this agreement nor any of its terms,provisions,conditions,representations or covenants can be modified,changed,terminated or amended,waived,superseded or extended except by appropriate written instrument fully executed by the parties. §12.9 If any of the provisions of this agreement shall be held invalid,illegal or unenforceable it shall not affect or impair the validity,legality or enforceability of any other provision. §12.10 No construction is permitted on Sundays,during the Food and Wine Festival in June(Friday through Sunday),Memorial Day weekend,4th of July day and/or weekend if it falls on a Friday or Monday,Labor Day weekend,Thanksgiving day,and Christmas week(12/25-1/1). These dates are subject to change and construction must comply with current dates stipulated under the current Construction Management Plan criteria—as amended by the City of Aspen Engineering Dept. §12.14 Electronic Signatures and Electronic Records This Agreement and any amendments hereto may be executed in several counterparts,each of which shall be deemed an original,and all of which together shall constitute one agreement binding on the Parties,notwithstanding the possible event that all Parties may not have signed the same counterpart. Furthermore,each Party consents to the use of electronic signatures by either Party. The Scope of Work, and any other documents requiring a signature hereunder,may be signed electronically in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or enforceability of the Agreement solely because it is in electronic forth or because an electronic record was used in its formation. The Parties agree not to object to the admissibility of the Agreement in the form of an electronic record,or a paper copy of an electronic documents,or a paper copy of a document bearing an electronic signature,on the grounds that it is an electronic record or electronic signature or that it is not in its original form or is not an original. ARTICLE 13 SCOPE OF THE AGREEMENT §13.1 This Agreement 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 Owner and Construction Manager. §13.2 This Agreement is comprised of the following documents listed below: .1 AIA Document C 132Tm--2009,Standard Form Agreement Between Owner and Construction Manager as Adviser Init. AIA Document C132Tm—2009(formerly B801 T"'CMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA"' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of 23 this AIAO Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) .2 AIA Document E201 TM-2017,Digital Data Protocol Exhibit, if completed,or the following: .3 (Pw•agraphs deleted) Other documents: (List other documents, iij'ctnv, including additional scopes of-vervice•fo•ming parr of the.4greement.) AIA(9)Document A232TM-2009 General Conditions of the Contract for Construction,Construction Manager as Adviser Edition This Agreement is entered into as of the day and year first written abov CITY OF ASPENS OWNER )Si natw•e _ -N MANAGER- - -- — ( b NS_RUCTION (Si—gnatre•—r—e) (Printed name and ti lc) (Printed name and title) Init. AIA Document C132"A—2009(formerly B801 rmCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA, Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA' Document,or any portion of it,may result in severe civil and criminal penaltios,and will be prosecuted to tho maximum extant possibly under 24 t the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) Additions and Deletions Report for AIA° Document C132"M— 2009 This Additions and Deletions Report,as defined on page 1 of the associated document,reproduces below all text the author has added to the standard form AIA document in order to complete it,as well as any text the author may have added to or deleted from the original AIA text.Added text is shown underlined.Deleted text is indicated with a horizontal line through the original AIA text. Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any part of the associated AIA document.This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 12:06:38 ET on 03/02/2020. PAGE 1 AGREEMENT made as of the 10th day of March in the year 2020 BETWEEN the Owner: Ci!y of Aspen Contact: Chris Everson,Proiect Manager 130 South Galena Street Aspen,CO 81611 (970)429-1834 chris.everson(a)c i tvo fasp en.com (�Iame,legal status,address-Find-A-theff infefmatian) Artaic Group,LLC 2420 17th Street,PO Box 2675 Denver,CO 80201 Contact: Adam Williams,Principal (970)471.5354 Adam.Williams(&ArtaicGroup.com for the following Project: Burlinizame Ranch Phase 3 Affordable Housing Development Part 1:Detailed Desien,Construction Documents,Building Permits,Budget,Contracting,Insurance(Part 1 ONLY until otherwise amended) Based on attached exhibits: Exhibit A.Artaic Proposal 2/6/2020 Exhibit B.City of Aspen RFP 2020-51088 This contract is subject to potential future amendment to add Parts 2 and 3 per attached exhibits A&B (Name, legal status, address and other information) Additions and Deletions Report for AIA Document C132TM—2009(formerly B801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA°S Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 1 reproduction or distribution of this AIAc" Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) 359 Design Attn: Will Hentschel 3630 Osage Street Denver,CO 80211 303-884-9131 whentschel iD359design.co PAGE 3 Not Applicable at the time of execution. rvpeFts; site,boundai-y and tepegmphie sun,eys;tFaffie and utility studies;availability af publir.and pr-i",ate titilities 79 Affordable Condominiums,8 Multifamily Buildings(buildings 8-151 and Accompanying Carport Structures and Infrastructure 40-225 Paepcke Drive,Aspen,CO 81611 (Pr-evide total ,if known, a line item br-eakdawfl.) Not applicable at the time of execution. .4-1 Design phase milestone dates,if any: Building Permit Application Submittal June 1,2020 Building Permit Issuance by April 1,2021 PAGE 4 April 1,2021 .3 Substantial Completion date or milestone dates: Buildings 8-11,March 2022 Buildings 12-15,October 2022 Additions and Deletions Report for AIA Document C132TM—2009(formerly B801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA'I Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 2 reproduction or distribution of this AIA, Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) 1)Civil Infrastructure,Foundations, Setting, Stitching,Cladding,Roofing,Decking Competitive Guaranteed Maximum Price bids from General Contractors based on 90%Construction Drawings with modifications as necessary during;the building permit review process 2)Modular Factory—Direct Contract with Owner,to be based on prescribed process at the time of contracting n/a Part 1:Detailed Design,Construction Documents,Building Permits,Budget,Contracting, Insurance Based on attached exhibits: A.Artaic Proposal 2/6/2020 B. City of Asnen RFP 2020-51088 Subject to potential future amendment to add Parts 2 and 3 per attached exhibits A&B City of Aspen Contact: Chris Everson.Project Manager 130 South Galena Street Aspen,CO 81611 (970)429-1834 chris.everson(i4cityofaspen.com (List name,address and ether-infeffnatie" n/a PAGE 5 (Listn legal st.,t,... d.d«,.,.s and ethef::nF.�,+ atie �uao �� �a .1 0 . .2 Geeteehaieal En 3 G;.,,,l Efl-,�ee� Additions and Deletions Report for AIA Document C132Tm—2009(formerly 8801 T""CMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA"" Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 3 reproduction or distribution of this AIAc" Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) 4 9ther: n/a n/a Actual hours to be billed monthly,staffing based on hours ver Exhibit A: Artie Proposal Dated 2/6/2020 �1 Gest Estimater! .2 Other-eensultafits: Not applicable at the time of execution. Not applicable at the time of execution. Exhibit A:Artie Proposal Dated 2/6/2020 Exhibit B: Ci of Aspen RFP 2020-51088,including Burlingame Ranch Phase 3 100%Schematic Design Plans November 15,2019 PAGE 6 §2.6.1 Comprehensive General Liability with policy limits of not less than Two Million Dollars($2,000,000)for each occurrence and in the aggregate for bodily injury and property damage. §2.6.2 Automobile Liability covering owned and rented vehicles operated by the Construction Manager with policy limits of not less than One Million Dollars($ 1,000,0001 combined single limit and aggregate for bodily injury and property damage. Additions and Deletions Report for AIA Document C132Tm—2009(formerly B801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA"" Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 4 reproduction or distribution of this AIAc' Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) §2.6.4 Workers' Compensation at statutory limits and Employers Liability with a policy limit of not less than One Million Dollars($ 1,000,000). §2.6.5 Professional Liability covering the Construction Manager's negligent acts,errors and omissions in its performance of services with policy limits of not less than Two Million Dollars ($2,000,000)per claim and in the aggregate. PAGE 8 §3.2.20 The Construction Manager shall feeeive-assist in receiving bids,prepare bid analyses and make recommendations to the Owner for the Owner's award of Contracts or rejection of bids. PAGE 12 n/a PAGE 13 §4.3.3 If the services covered by this Agreement have not been completed within n/a ( n/a )months of the date of this Agreement,through no fault of the Construction Manager,extension of the Construction Manager's services beyond that time shall be compensated as Additional Services. PAGE 15 The Construction Manager and the Construction Manager's consultants,if any,shall not own or claim a copyright in the Instruments of Service.The Construction Manager,the G-en.4up-tian,,,ranageF eensult nt if afi.�—and the Owner warrant that in transmitting Instruments of Service,or any other information,the transmitting party is the copyright owner of such information or has permission from the copyright owner to transmit such information for its use on the Project.If the Owner and Construction Manager intend to transmit Instruments of Service or any other information or documentation in digital form,they shall endeavor to establish necessary protocols governing such transmissions. §8.1.2 To the extent damages are covered by property insurance,the Owner and Construction Manager waive all rights against each other and against the contractors,consultants,agents and employees of the other for damages, except such rights as they may have to the proceeds of such insurance as set forth in AIA Document A232 A232-2009,General Conditions of the Contract for GanstFuetion. Construction,CMa Edition. The Owner or the Construction Manager,as appropriate, shall require of the contractors,consultants,agents and employees of any of them similar waivers in favor of the other parties enumerated herein. §8.1.3 The Genstpaetien Maiiager-shall indemnify and hold the Owner-and the Owner-'s effieer-s and empleyees hiffmle.s;s from aiid against damages, lesses and judgments ar-iSiOg 481FR GlaifRS b5'thiFd paf4ies, iae!Hdifig reasonable atteFneys'fees and e*peases Feeever-able under-applieabie law,but only te the eiitefit they afe eaused by the negligent eF this The Genstpaetion Manager-'s duty to indemnify the Owner-undef this pr-evision shall - limited to the available peeds of in"„-anee" Construction Manager agrees to indemnify and hold harmless the City of Aspen its officers employees insurers and self-insurance pool from and against all liability,claims and demands,on account of injury,loss,or damage,including without limitation claims arising from bodily injury,personal iniury,sickness,disease,death,property loss or damage,or any other loss of any kind whatsoever,which arise out of or are in any manner connected with this contract,to the extent and for an amount represented by the degree or percentage such iniurv,loss,or damage is caused in whole or in part by or is claimed to be caused in whole or in part by the wron fug_1 act omission,error,professional error,mistake,negligence,or other fault of the Construction Manager,any subcontractor of the Construction Manager,or any officer,employee,representative,or agent of the Construction Manager or of any subcontractor of the Construction Manager,or which arises out of any workmen's compensation claim of anyemployee of the Architect or of any employee of any subcontractor of the Construction Manager.The Construction Manager agrees es to investigate,handle,respond to,and to provide defense for and defend against any such liability,claims or demands at the sole expense of the Construction Manager,or at the option of the City,agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with,any such liability,claims or demands.If it is determined by the final iudgment of a court of competent jurisdiction that such iniury,loss,or damage was caused in whole or in part by the act Additions and Deletions Report for AIA Document C132Tm—2009(formerly B801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This Alk" Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 5 reproduction or distribution of this AM'"' Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) omission,or other fault of the City,its officers,or its employees,the City shall reimburse the Construction Manager for the portion of the judgment attributable to such act,omission,or other fault of the City,its officers,or employees. §8.1.4 The GeastFuetien Manager-and eensequential damages for-elaims,diSpHteS OF Ather-me-Reans; iff §8.2.1 Any claim,dispute or other matter in question arising out of or related to this Agreement sha4l-maybe subject to mediation as a condition precedent to binding dispute resolution. If such matter relates to or is the subject of a lien arising out of the Construction Manager's services,the Construction Manager may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the matter by mediation or by binding dispute resolution. §8.2.2 The Owner and Construction Manager shall endeavor to resolve claims,disputes and other matters in question between them by mediation which,unless the parties mutually agree otherwise,shall be administered by the air a mutually acceptable mediation group,usine one mutually acceptable mediator,in accordance with its Construction Industry Mediation Procedures in effect on the date of the Agreement. A request for mediation shall be made in writing,delivered to the other party to the Agreement,and filed with the person or entity administering the mediation.The request may be made concurrently with the filing of a complaint or other appropriate demand for binding dispute resolution but,in such event,mediation shall proceed in advance of binding dispute resolution proceedings,which shall be stayed pending mediation for a period of 60 days from the date of filing,unless stayed for a longer period by agreement of the parties or court order.If an arbitration proceeding is stayed pursuant to this section,the parties may nonetheless proceed to the selection of the arbitrator(s)and agree upon a schedule for later proceedings. PAGE 16 [ gatie � tet� isdi4tiet3X 1 Litigation in District Court, Pitkin County, State of Colorado. PAGE 17 §8.3 Arbitration—Not Applicable . . , dispute or-etheF Hiattef in question afising atit of or-related to this Agreement subj eet to,biat not r-eselved by,mediati shall be subjeet to aFbitr-atien"ieh,unless t4 pai4ies mutually agree ethem,ise,shall be,-admini-steffed by the efthe Agr-eefnent. A Elemand-feff awh-itr-R-lmien shall be Made in wr-itiag,dedivewed-to the.other-paAy to this , §8.3.4.1 A demand for-ar-bitfation shall be m-Rd-e--;;-A- effirlieff-th-an-ee-fte-Hiffently with the filing afa r-equest&r- , but in no event shall it be m--Rd-e-RA-Aff-th-p-&Rte the ifistitution of legal or-eqtiitable pr-aeeediags based on the el dispute or-ether-matter-in Eluestienwouldbe baffedby the appheable statute eflifnitations.For-staPate eflifnitati eanstitute the institutien of legal or-equitable pr-aeeedings based en the elaim,dispute eF athef mattef in Ettlestion. §8.3.2:Fhe fefegoing agr-eem-ens te-Ar-b-4ate a-ad other-agFeements to afbitr-atewith an additional per-son er-entity d* §8.3.3 The Affivffiwd-r-eadeffed by the ar-bitr-ateF(s)shall be final,and judgment may be eater-ed upen it in aeoer-danee A Additions and Deletions Report for AIA Document C132T"-2009(formerly B801 TMCMa-1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA1"Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 6 reproduction or distribution of this AIA10 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) §8.3.4 Consolidation er in 8.3.4.1 Pith@ r-p a Fty,at its se I e d4ser-A-6 A-a,may eens8lid-A-W-R,-;;-_RFh_4_r_.A_ti AS a ee-i-i-duet e d-u ado r-this A gr-eeme fit with a ny that the party sought to be joined Gensents iekjoindef. Gon-sent to_Fwh_i#atiE)a invoIN,ing as -Fid-d-ition-al per-son or-entity shall not eensti$440 AA4;.q;�t tA of any elaim,dispote of:other fflatteF in qtiestien not §8.3.4.3 The Owner-and Genstmetion Managef gfant to aRy peFsen of:entity made a paFty to an ar-bitr-atien eendueted under-this Seetien 9.3,whether-byjeifidef er-eanselidation,the same rights efjoinder--R;;d-eei;,selid-atien as the Ownef §9.1 If the Owner fails to make payments to the Construction Manager of undisputed amounts properly due in accordance with this Agreement,the Construction Manager may Provide written notice of such failure. .If the Owner fails to make ngyment within fourteen(14)days of receipt of such notice,such failure shall be considered substantial nonperfonnance and cause for termination or,at the Construction Manager's option,cause for suspension of performance of services under this Agreement. If the Construction Manager elects to suspend services,the Construction Manager shall give an additional seven days'written notice to the Owner before suspending services.In the event of a suspension of services,the Construction Manager shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services.Before resuming services,the Construction Manager shall be paid all sums due prior to suspension and any expenses incurred in the interruption and resumption of the Construction Manager's services.The Construction Manager's fees for the remaining services and the time schedules shall be equitably adjusted. §9.7 Termination Expenses are in addition to compensation for the Construction Manager's services and include expenses directly attributable to termination for which the Construction Manager is not otherwise eempensated,-pltts r,.nstf•.;,,aea Manager-,as et f i4h bet, A ,.ompensated. Phase. Manager-shall be entitled t . . I eat for-sef-viees per-f4med and eests inetifFed by reason of soeh tefmination, alangwith f:easeaable ever-head and profit on sef-viees not eampleted during the Genstnaefien Phase. §10.2 Terms in this Agreement shall have the same meaning as those in AIA Document ^'�TA232-2009, General Conditions of the Contract for Construction,CMa Edition,except for purposes of this Agreement,the term "Work" shall include the work of all Contractors under the administration of the Construction Manager. PAGE 18 §10.7 The Construction Manager shall have the right to include photographic or artistic representations of the design of the Project among the Construction Manager's promotional and professional materials.The Construction Manager shall be given reasonable access to the completed Project to snake such representations. However,the Construction Additions and Deletions Report for AIA Document C132T"'—2009(formerly 8801 TmCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA` Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 7 reproduction or distribution of this AIA"' Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) Manager's materials shall not include the Owner's confidential or proprietary in f...,.alien if the Owner-has pr-ev:,.. sly information. The Owner shall provide professional credit for the Construction Manager in the Owner's promotional materials for the Project. §10.9 Insurance and Bonds The Contractor shall purchase and maintain insurance and provide bonds as set forth in Article 11 of AIA Document A232-2009. (State bondiniz requirements, ifany, and limits of liability for insurance required in Article I ofAIA Document A232-2009.) Type of Insurance or Bond Limit of Liability or Bond Amount($0.00) Comprehensive General Liability $2,000,000.00 for each occurrence and in the aggre atg a for bodily injury and property damage. Automobile Liability Covering owned and rented vehicles: $1,000,000.00 combined single limit and aggregate for bodily injury and property damage Workers' Compensation Statutory limits and Employers Liability with a policy limit of not less than$1,000,000.00. Professional Liability Covering negligent acts,errors and omissions,not less than $2,000,000.00 per claim and in the aggregate. The Construction Phase will require Maintenance,Payment and Performance Bonds in the amount of 100%of the contract value. Payment Bond shall expire one(1)year after the completion of the project. Performance and Maintenance Bonds shall expire two(2)years after the completion of the proiect. PAGE 19 (Ifiseft ameuflt of-,or-basis for,eampeasation,ineluding Stipulated sums,multiples or-per-eentages.) Part 1 Services based on attached exhibits: Exhibit A.Artaic Proposal 2/6/2020 Exhibit B. City of Aspen RFP 2020-51088 Subject to potential future amendment to add Parts 2 and 3 per attached exhibits A&B The Construction Manager will be paid monthly based on actual hours on the basis of hourly billing rates in Exhibit A Artaic Proposal 2/6/2020,rates have been transcribed below: Team Member Role 2020 Hourly Billing Rate Adam Williams Principal $150 Chris Penney Project Director,SPM $130 Ryan Brown Proiect Manager $120 HOURLY RATES 2020 2021 2022 2023 2024 Principal $150.00 $154.50 $159.14 $163.91 $168.83 Sr.Project Manager $130.00 $133.90 $137.92 $142.05 $146.32 Project Manager $120.00 $123.60 $127.31 $131.13 $135.06 Additions and Deletions Report for AIA Document C132Tm—2009(formerly B801 TMCIUa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA` Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 8 reproduction or distribution of this AIA' Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) (InseA ameunt of-,er-basis for-,eampeasation,ifieluding Stipulated suffis,multiples or-pefeentages.) Part 1 ONLY until otherwise amended.This contract is subject to potential future amendment to add Parts 2 and 3 per attached exhibits A&B n/a n/a §11.4 Compensation for Additional Services of the Construction Manager's consultants when not included in Sections 11.2 or 11.3,shall be the amount invoiced to the Construction Manager plus n/a percent(4e),-n/a or as otherwise stated below: n/a PAGE 20 Part 1 Services based on attached exhibits: Exhibit A.Artaic Proposal 2/6/2020 Exhibit B.City of Aspen RFP 2020-51088 Subiect to potential future amendment to add Parts 2 and 3 per attached exhibits A&B The Construction Manager will be paid monthly based on actual hours,on the basis of hourly billing rates in Exhibit A Artaic Proposal 2/6/2020.rates have been transcribed below: Team Member Role 2020 Hourly Billing Rate Adam Williams Principal $150 Chris Penney Project Director,SPM $130 Ryan Brown Project Manager $120 HOURLY RATES 2020 2021 2022 2023 2024 Principal $150.00 $154.50 $159.14 $163.91 $168.83 Sr. Proiect Manager $130.00 $133.90 $137.92 $142.05 $146.32 Proiect Manager $120.00 $123.60 $127.31 $131.13 $135.06 Listed above Listed above §11.6.2 For Reimbursable Expenses the compensation shall be the expenses incurred by the Construction Manager and the Construction Manager's consultants plus n/a percent(n/a%)of the expenses incurred. §11.7.1 An initial payment of zero ($0.00 )shall be made upon execution of this Agreement and is the minimum payment under this Agreement.It shall be credited to the Owner's account in the final invoice. Additions and Deletions Report for AIA Document C132 TM—2009(formerly 8801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA°° Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 9 reproduction or distribution of this AIA", Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) §11.7.2 Unless otherwise agreed,payments for services shall be made monthly in proportion to services performed. Payments are due and payable upon presentation of the Construction Manager's invoice.Amounts unpaid forty-five (44D days after the invoice date shall bear interest at the rate entered below,or in the absence thereof at the legal rate prevailing from time to time at the principal place of business of the Construction Manager. 1.5 % PAGE 21 §12.1 Tax-Exemption. All purchases of supplies,construction or building materials shall not include Federal Excise Taxes or Colorado State or local sales or use taxes. The Owner's State of Colorado tax identification number is 98-04557. The Owner's Federal Tax Identification Number is 84-60000563. 412.2 Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in,or be construed as establishin an n employment relationship. CMa shall be, and shall perform as,an Independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the Owner. No agent,employee,or servant of CMa shall be,or shall be deemed to be,the employee,agent or servant of the Owner. Owner is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of the CMa. None of the benefits provided by Owner to its employees including,but not limited to,workers' compensation insurance and unemployment insurance,are available from Owner to the employees,agents or servants of CMa. CMa shall be solely and entirely responsible for its acts and for the acts of CMa's agents,employees,servants and consultants during the performance of this contract. CMa shall indemnify Owner against all liability and loss in connection with,and shall assume full responsibility for payment of all federal,state and local taxes or contributions imposed or required under unemployment insurance,social security and income tax law,with respect to CMa and/or CMa's employees enizaged in performance of the services agreed to herein. 412.3 Notice. Any written notices as called for herein may be hand delivered to the respective persons and/or addresses listed below or mailed by certified mail return receipt requested,to: Owner: City Manager City of Aspen 130 South Galena Street Aspen,Colorado 81611 With a copy to: James R.True,Esa. City Attorney 130 South Galena Street Aspen,Colorado 81611 412.4 Non-Discrimination. No discrimination because of race color,creed sex marital status affectional or sexual orientation family responsibility,national origin ancestry,handicap or religion shall be made in the employment of persons to perform services under this contract. CMa agrees to meet all of the requirements of Owner's municipal code, Section 13-98,pertaining to non-discrimination in employment. §12.5 Waiver. The waiver by the Ownre of any term,covenant,or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term,covenant,or condition of this Agreement can be waived except by the written consent of the Owner.Forbearance or indulgence by the Owner in any regard whatsoever shall not constitute a waiver of any term covenant or condition to be performed by CMa to which the same may apply and,until complete performance by CMa of said term,covenant or condition,the Owner shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 412.6 Execution of Agreement by Owner.This agreement shall be binding upon all parties hereto and their respective heirs,executors,administrators,successors and assigns. Notwithstanding anything to the contrary Additions and Deletions Report for AIA Document C132Tm—2009(formerly 8801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA"d Document is protected by U.S.Copyright Law and International Treaties.Unauthorized .�O reproduction or distribution of this AIA'I Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) contained herein,this Aereement shall not be binding upon the Owner unless duly executed in accordance with the requirements of the Owner's municipal code,by the Mayor of the City of Aspen,or a duly authorized official in his absence,following approval of City Council. 02.7111e2al Aliens—CRS 8-17.5-101 &24-76.5-101 1. Purpose. During the 2006 Colorado legislative session,the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073)and 06-1023 that added new statutes relating to the employment of and contracting with illeeal aliens. These new laws prohibit all state agencies and political subdivisions,including the Owner,from knowingly hiring an illegal alien to perform work under a contract,or to knowingly contract with a Consultant who knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. 2. Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the Owner. 1. "E-verify program"means the electronic employment verification program created in Public Law 208- 104th Congress,as amended and expanded in Public Law 156, 108th Congress,as amended,that is jointly administered by the United States Department of Homeland Security and the social security Administration or its successor program. 2. "Department program" means the employment verification program established pursuant to section 8-17.5-105(5)(c). 3. "Public Contract for Services" means this Agreement. 4. "Services" means the furnishing of labor,time,or effort by a Consultant or a subconsultant not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. 3. By signing this document,Consultant certifies and represents that at this time: 1. Consultant shall confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services;and 2. Consultant has participated or attempted to participate in either the e-verity program or the department program in order to verify that new emplovees are not illegal aliens. 4. Consultant hereby confirms that: 1. Consultant shall not knowingly employ or contract with an elleal alien to preform work under the Public Contract for Services. 2. Consultant shall not enter into a contract with a subconsultant that fails to certify to the Consultant that the subconsultant shall not knowingly employ or contract with an illeeal alien to perform work under the Public Contract for Services, 3. Consultant has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services throueh participation in either the e-verify program or the department program. 4. Consultant shall not use either the e-verify proeram or the department proeram procedures to undertake pre-employment screening of mob applicants while the Public Contract for Services is being performed. Additions and Deletions Report for AIA Document C132" —2009(formerly B801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 11 reproduction or distribution of this AIA`" Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) 5. If Consultant obtains actual knowledee that a subconsultant performinE work under the Public Contract for Services knowingly employs or contracts with an illegal alien,Consultant shall: 1. Notify such subconsultant and the Owner within three days that Consultant has actual knowledge that the subconsultant is emplovine or subcontractine with an illeeal alien: and 2. Terminate the subcontract with the subconsultant if within three days of receivine the notice required pursuant to this section the subconsultant does not step emolovinE or contracting with the illegal alien, except that Consultant shall not terminate the Public Contract for Services with the subconsultant if during such three days the subconsultant provides information to establish that the subconsultant has not knowingly employed or contracted with an illegal alien. 6. Consultant shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertakine pursuant to the authority established in Subsection 8-17.5-102(5)C.R.S. 7. If Consultant violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102,C.R.S.the Owner may terminate this Agreement.If this agreement is so terminated,Consultant shall be liable for actual damages to the Owner arising out of Consultant's violation of Subsection 8-17.5-102 C.R.S. 02.8 It is agreed that neither this agreement nor any of its terms,provisions,conditions,representations or covenants can be modified,changed,terminated or amended,waived,superseded or extended except by appropriate written instrument fully executed by the parties. 02.9 If any of the provisions of this aereement shall be held invalid,illegal or unenforceable it shall not affect or impair the validity,legality or enforceability of any other provision. &12.10 No construction is permitted on Sundays,during the Food and Wine Festival in June(Friday through Sunday),Memorial Day weekend,4th of July day and/or weekend if it falls on a Friday or Monday,Labor Day weekend,Thanksgiving day,and Christmas week(12/25-1/1). These dates are subiect to change and construction must comply with current dates stipulated under the current Construction Management Plan criteria–as amended by the City of Aspen Engineering Dept. §12.14 Electronic Signatures and Electronic Records This Agreement and anv amendments hereto may be executed in several counternarts,each of which shall be deemed an original,and all of which together shall constitute one agreement binding on the Parties,notwithstanding the possible event that all Parties may not have signed the same counternart. Furthermore,each Party consents to the use of electronic signatures by either Party. The Scope of Work and any other documents requiring a signature hereunder,may be signed electronically in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or enforceability of the Agreement solely because it is in electronic form or because an electronic record was used in its formation. The Parties agree not to object to the admissibility of the Agreement in the form of an electronic record or a paver copy of an electronic documents or a paper copy of a document bearing an electronic signature,on the grounds that it is an electronic record or electronic signature or that it is not in its original form or is not an original. PAGE 24 2 AIA Document 920T"'�,E20I TM-2017,Digital Data Protocol Exhibit,if completed,or the following: .3 AIA Poeument E2021M 2008, €ellewieg: 4—Other documents: Additions and Deletions Report for AIA Document C132Tm—2009(formerly B801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA'° Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 2 reproduction or distribution of this AIAI'" Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) AIA®Document A232TM—2009 General Conditions of the Contract for Construction,Construction Manager as Adviser Edition This Agreement is entered into as of the day and year first written above. CITY OF ASPEN Additions and Deletions Report for AIA Document C132 TM—2009(formerly 8801 TMCMa—1992).Copyright©1973,1980,1992 and 2009 by The American Institute of Architects.All rights reserved.WARNING:This AIA"' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 13 reproduction or distribution of this AIA`-" Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864) Certification of Document's Authenticity AIA°Document D401 TM — 2003 I, ,hereby certify,to the best of my knowledge,information and belief,that I created the attached final document simultaneously with its associated Additions and Deletions Report and this certification at 12:06:38 ET on 03/02/2020 under Order No. 3638194135 from AIA Contract Documents software and that in preparing the attached final document 1 made no changes to the original text of AIAI'Document C 13 2T—2009, Standard Form of Agreement Between Owner and Construction Manager as Adviser,as published by the AIA in its software,other than those additions and deletions shown in the associated Additions and Deletions Report. (Signed) (Title) (Dated) AIA Document D401 Im—2003.Copyright©1992 and 2003 by The American Institute of Architects.All rights reserved.WARNING:This AIA"" Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA Document,or any portion of it,may 1 result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 12:06:38 ET on 03/02/2020 under Order No.3638194135 which expires on 08/21/2020,and is not for resale. User Notes: (728842864)