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Document C132TM – 2009 Standard Form of Agreement Between Owner and Construction Manager as Adviser Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 1 ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. A vertical line in the left margin of this document indicates where the author has added necessary information and where the author has added to or deleted from the original AIA text. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. This document is intended to be used in conjunction with AIA Documents A132™–2009, Standard Form of Agreement Between Owner and Contractor, Construction Manager as Adviser Edition; A232™–2009, General Conditions of the Contract for Construction, Construction Manager as Adviser Edition; and B132™–2009, Standard Form of Agreement Between Owner and Architect, Construction Manager as Adviser Edition. AIA Document A232™–2009 is adopted in this document by reference. Do not use with other general conditions unless this document is modified. AGREEMENT made as of the 9th day of October in the year 2015 BETWEEN the Owner: City of Aspen 130 South Galena Street Aspen, Colorado 81611 and the Construction Manager: NV5, Inc.. 2650 18th Street, Suite 202 Denver, CO 80211 Phone: (303) 351-5045 Contact: John Bills for the following Project: City of Aspen Building Replacement Project 540 E. Main Street Aspen, Colorado 81611 The Architect: Charles Cunniffe Architects, P.C. 610 E. Hyman Avenue Aspen, Colorado 81611 Phone: (970) 925-5590 Contact: Charles Cunniffe, Principal Charles@cunniffe.com The Owner and Construction Manager agree as follows. Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 2 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. § 1.1.1 The Owner’s program for the Project: The City of Aspen is in the process of developing a Plan to add / renovate a new facility solution including 14,000 – 16000 sf facility with a housing component for the Aspen Police Department at 540 E Main St and about 50,000 – 55,000 sf of city offices on currently held real estate assets in the City of Aspen core. The selected PM/OA will be a trusted advisor to CoA on contracts, schedule, cost, program, delivery, quality assurance and quality control, public outreach, internal outreach and responsible for the team maintaining overall performance and goals of the project. The schedule breaks the project into 5 phases, as follows Conceptual Design - The Galena Option was selected by Council on August 3, 2015. Schematic Design Design Development Final Design Construction Administration § 1.1.2 The Project’s physical characteristics: (Paragraph deleted) See above. § 1.1.3 The Owner’s budget for the Cost of the Work, as defined in Section 6.1: Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 3 (Paragraph deleted) TBD § 1.1.4 The Owner’s anticipated design and construction schedule: .1 Design phase milestone dates, if any: Police City Offices Conceptual Design Complete Complete Schematic Design 10/23/2015 12/31/2015 Design Development 2/19/2016 4/19/2016 P&Z/Permit 12/15/2015 2/15/2016 Bids (off 25% CD) 3/15/2016 4/31/2016 .2 Commencement of construction: The construction of the Work will commence by approximately 11/29/2016 .3 Substantial Completion date for construction Work : 7/30/2018 .4 Other: Move-in: 8/20/2018 Close-out: 9/30/2018 subject to adjustments of this Contract Time as provided in the Contract Documents. § 1.1.5 The Owner intends the following procurement method for the Project: (Paragraphs deleted) Obtain competitive bids on the basis of a Guaranteed Maximum Price from Contractors based on 25% complete Construction Drawings, with allowances for uncovering unknown existing conditions. § 1.1.6 The Owner’s requirements for accelerated or fast-track scheduling, multiple bid packages, or phased construction are set forth below: (Paragraph deleted) The Police Building program will be a separate, accelerated phase, two months ahead of the remaining program schedule. § 1.1.7 Other Project information: Development Program Manager / Construction Manager as Advisor ("CMa") Responsibilities: .1 Conceptualization - Completed .2 Schematic Design • Overall facilitation, coordination, organization and direction of the integrated team • Coordinate assignment of responsibilities, actions and completion requirements • Coordinate and track integrated team’s performance • Coordination of overall project schedule with Updated procurement and construction schedule • Lead Value Engineering process • Final constructability analysis of construction systems selected • Update analysis of long lead items .3 Design Development • Overall facilitation, coordination, organization and direction of the integrated team • Coordinate alternative options for presentation to Owner Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 4 • Coordinate and track integrated team’s performance • Ensure compliance with project requirements • Lead performance checking of building systems from the Integrated Team’s stakeholders • • Final analysis and recommendation on construction systems selected • Package Bid documents and draft RFP for Initial GC GMP, review response, and recommend in conjunction with project team • Monitor and update schedule .4 Construction Documents • Overall facilitation, coordination, organization and direction of the integrated team • Coordinate complete information for legal requirements of project as it relates to the owner’s procurement method • Lead the value engineering process to ensure highest value to the project • Coordinate team input and facilitating team buy-in for overall project schedule and budget • Monitor and update schedule • Package Bid documents for Initial GC GMP, review response, and recommend in conjunction with project team • Assist and manage procurement of miscellaneous Owner consultants (geotech, materials testing, envelope specialist, FF&E purchasing) .5 Construction Administration & Closeout: This Scope of Work will not be included in the Agreement initially but may be added by Change Order at a later date upon negotiation with and approval by the Owner. • Overall facilitation, coordination, organization and direction of the team • Document control and management • Change order management • Cost control • QA / QC oversight and coordination • Oversight of the General Contractor, Architect and miscellaneous contracts • Review, monitor and report on schedule • Provide monthly progress reports on budget, cost, schedule and risk § 1.1.8 The Owner identifies the following representative in accordance with Section 5.5: City of Aspen 130 South Galena Street Aspen, Colorado Contact: Jack Wheeler, Capital Asset Manager Phone: (970) 429-1790 Fax: (970) 544-5378 Jack.Wheeler@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: Not Applicable. § 1.1.10 The Owner will retain the following consultants and contractors: The Architect, the geotechnical engineer, the Cost Estimator, and the Commissioning Agent. The Architect will retain the civil, land planner, structural, mechanical, electrical, plumbing, irrigation, fire protection, law enforcement, sustainable practices, interior design, waterproofing, and landscaping engineers. .1 Commissioning Agent: Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 5 .2 Geotechnical Engineer: (Paragraphs deleted) .3 Omitted: .4 Other: (List any other consultants retained by the Owner, such as a Project or Program Manager, or construction contractor.) TBD § 1.1.11 The Construction Manager identifies the following representative in accordance with Section 2.4: NV5, Inc. 2650 18th Street, Suite 202 Denver, CO 80211 Phone: (303) 351-5045Contact: John Bills § 1.1.12 The Construction Manager’s staffing plan as required under Section 3.3.2 shall include: NV5, Inc. 2650 18th Street, Suite 202 Denver, Colorado 80211 Phone: (303) 351-5045 Contacts: Rob Taylor – Senior Project Manager Phone: 720.217.6822 § 1.1.13 The Construction Manager’s consultants retained under Basic Services, if any: .1 Cost Estimator: (Paragraphs deleted) Not Applicable. .2 Other consultants: Not Applicable. § 1.1.14 The Construction Manager’s consultants retained under Additional Services: Not Applicable. § 1.1.15 Other Initial Information on which the Agreement is based: § 1.2 The Owner and Construction Manager may rely on the Initial Information. If such information should materially change, the Owner and the Construction Manager shall equitably 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. Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 6 § 2.3 The Construction Manager shall provide its services in conjunction with the services of an Architect as described in AIA Document B101™–2007, Standard Form of Agreement Between Owner and Architect, as amended. 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. § 2.6 The Construction Manager shall maintain the following minimum insurance for the duration of this Agreement. Failure on the part of the Construction Manager to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of the contract. The Construction Manager shall not be relieved of any liability by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (i) Workers’ Compensation insurance to cover obligations imposed by applicable Colorado laws for any employee engaged in the performance of work under this contract, and Employers’ Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOU¬SAND DOLLARS ($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each employee. The policy shall contain a waiver of subrogation in favor of the Owner. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision and a waiver of subrogation in favor of the Owner. (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Construction Manager’s owned, hired and non-owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision and a waiver of subrogation in favor of the Owner. (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. § 2.6.1 Every policy required above shall be primary insurance, and any insurance carried by the Owner, or carried by or provided through any insurance pool of the Owner, shall be excess and not contributory insurance to that provided by Construction Manager. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Construction Manager shall be solely responsible for any deductible losses under any policy required above. § 2.6.2 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. The certificate shall identify this contract and the policy shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the Owner. Owner reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (Paragraphs deleted) Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 7 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 budgeting, and allocation of construction activities among the Multiple Prime Contractors, and representing the Owner’s interests as it relates to project oversight and Owner’s Representation, on-site observation, schedule review, cost review, and constructability review. § 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 Preconstruction 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 Preconstruction 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 review preliminary estimates of the Cost of the Work or the cost of program requirements for the Architect’s review and Owner’s approval. If the Architect suggests alternative materials and systems, the Owner’s Cost Estimator 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 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 Preconstruction 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, budgets of the Cost of the Work of increasing detail and refinement. The Construction Manager in conjunction with the Owner’s Cost Estimator 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. Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 8 § 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 assist the Contractor with review of submittals and expedited payments to expedite and coordinate the 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 review and 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. § 3.2.17 Following the Owner’s approval of the 25% Construction Document Drawings and Specifications, the Construction Manager shall update and submit the latest budget, including the latest Cost Estimate provided by the Owner’s Cost Estimator, 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 receive 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 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 Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 9 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 [SCOPE OF WORK NOT INCLUDED AT THIS TIME BUT MAY BE ADDED BY CHANGE ORDER AT A LATER TIME.] § 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 and oversight to the Contract Documents including the Contracts for Construction in cooperation with the Architect as set forth below and in AIA Document A201™–2007, General Conditions of the Contract for Construction, as amended § 3.3.4 The Construction Manager shall provide administrative, management and related services to coordinate scheduled activities and responsibilities of the Contractor with those of the Construction Manager, the Owner and the Architect. The Construction Manager shall coordinate the activities of the Contractors in accordance with the latest approved Project schedule and the Contract Documents. § 3.3.5 The Construction Manager shall ensure that the Contractor updates and reissues the Contractor’s construction schedule as required to show current conditions. If an update to the Contractor’s construction schedule 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 Contractor shall schedule and conduct meetings to discuss such matters as procedures, progress, coordination, and scheduling of the Work. The Contractor shall prepare and promptly distribute minutes to the Owner, Architect and Contractor. The Construction Manager shall attend and contribute to such meetings. § 3.3.7 Utilizing information from the Contractors, the Construction Manager shall coordinate the resolution of any conflicts between the Contractors working on the site, including the sequence of construction and assignment of space in areas where the Contractors are performing Work, in accordance with the Contract Documents and the latest approved Project schedule. § 3.3.8 Omitted. § 3.3.9 The Construction Manager shall endeavor to obtain satisfactory performance from each of the 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 information presented. The Construction Manager shall also report the Contractor’s cost control information to the Owner against the Contract GMP and approved Change Orders. § 3.3.11 Omitted. § 3.3.12 Omitted. § 3.3.12.1 The Construction Manager shall develop and implement procedures for the review and processing of Applications for Payment by Contractor for progress and final payments. Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 10 § 3.3.12.2 Not more frequently than monthly, the Construction Manager shall review and recommend the amounts due the respective Contractors as follows: .1 Where 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, recommend 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 recommend 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) recommend 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 recommendation 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 recommendation 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 recommendation of an 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 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 the Contractor 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 Contractor. 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, , Subcontractors, agents or employees of the 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 carry out observations to 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 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 Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 11 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, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work. § 3.3.16 The Contractor shall transmit to the Architect, with a copy to the Construction Manager, 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 with the coordination of the Owner, Construction Manager, Architect, and relevant authorities and affected parties, as necessary. The Construction Manager shall take no action on such requests unless the Architect requests specific action from the Construction Manager. The Construction Manager shall also provide oversight of the RFI process to ensure the compliance of the Architect and Contractor to their obligations to resolve RFIs, to facilitate resolution, and to inform the Owner when a decision from the Owner is required. § 3.3.17 The Construction Manager shall review requests for changes, assist in negotiating Contractors’ proposals, and submit recommendations to the Architect and Owner regarding Change Orders and Construction Change Directives. If they are accepted, the Contractor shall prepare Change Orders and the Architect shall prepare and issue 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 The Construction Manager shall provide oversight of the Contractor’s and Architect’s compliance with the submittal schedule. and report to the Owner on such compliance, to enable the Contractor’s timely completion of the work. § 3.3.20 The Construction Manager shall report to the Owner on a weekly basis observations of project progress and provide a report capturing project progress and any defects or observations that will require Contractor or Architect action. § 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 and additionally report the following executive-level information to the Owner on a monthly basis: .1 Overall project status, including work completed during the previous month; .2 Project schedule status; key construction activities planned for the upcoming month; .3 Submittal schedule and status report, including a summary of remaining and outstanding submittals; .4 Review of open submittals, requests for information, Change Orders, and Construction Change Directives requiring Owner’s attention; .5 Tests and inspection reports; .6 Updated project cost compared to original budget; .7 Status report of nonconforming and rejected Work; .8 Review of any Owner contracts or contract-related actions which need Owner attention; .9 Overview of risk items; .10 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 .11 Any other items the Owner may require: § 3.3.20.2 (Paragraphs deleted) Omitted. § 3.3.21 Omitted. Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 12 § 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 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 Architect shall prepare, and the Owner, Contractor and Architect shall execute, a Certificate of Substantial Completion. The Construction Manager shall review the Certificate and make any necessary recommendations to the Owner and Contractor. The Contractor shall coordinate the correction and completion of the Work. Following issuance of a Certificate of Substantial Completion of the Work or a designated portion thereof, the Architect shall evaluate the completion of the Work of the Contractor, with assistance from the Construction Manager, and make recommendations to the Architect and Owner 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: (1) certificates of insurance received from the Contractor; (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 Contractor shall deliver all keys, manuals, record drawings and maintenance stocks directly to the Owner, with a copy of the Transmittal to the Architect and Construction Manager. The Contractor shall forward to the Architect a 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. 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 Omitted. Services Responsibility (Construction Manager, Owner or Not Provided) Location of Service Description (Section 4.2 below or in an exhibit attached to this document and identified below) Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 13 § 4.2 Omitted. § 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. § 4.3.1 Upon recognizing the need to perform the following Additional Services, the Construction Manager shall notify the Owner in writing 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 1.1.6; .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 from 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 in writing 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 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 forty-eight ( 48) 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. Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 14 § 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 B101–2007, Standard Form of Agreement Between Owner and Architect, as amended . 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 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. § 5.7 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 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 C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 15 § 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 Not used. § 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. 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 A201–2007, General Conditions of the Contract for Construction. The Owner or the Construction Manager, as appropriate, shall Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 16 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 Construction Manager shall indemnify and hold the Owner and the Owner’s officers and employees harmless from and against damages, losses and judgments arising from claims by third parties, including reasonable attorneys’ fees and expenses recoverable under applicable law, but only to the extent they are caused by the negligent acts or omissions of the Construction Manager, its employees and its consultants in the performance of professional services under this Agreement. The Construction Manager’s duty to indemnify the Owner under this provision shall be limited to the available proceeds of insurance coverage. § 8.1.4 The Construction Manager and Owner waive consequential damages for claims, disputes or other matters in question arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination of this Agreement, except as specifically provided in Section 9.7. § 8.2 Mediation § 8.2.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall 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 them 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. § 8.2.4 If the parties do not resolve a dispute through mediation pursuant to this Section 8.2, the method of binding dispute resolution shall be (Paragraphs deleted) litigation in District Court, Pitkin County, State of Colorado. § 8.3 Arbitration Omitted. (Paragraphs deleted) § 8.3.4 Consolidation or Joinder Omitted. (Paragraphs deleted) § 8.4 Litigation § 8.4.1 Litigation. This Contract, and all matters interpreting it and arising under it shall be enforced in, and all parties do now submit to, the exclusive jurisdiction and venue of the District Court, County of Pitkin, State of Colorado, in the event of any litigation concerning this Contract, and regardless of where this Contract may be executed. Each party consents to and agrees to file a general appearance in the event that it receives service of process. Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 17 § 8.4.2 Jury Trial Waiver. To the fullest extent permitted by law, Owner and Construction Manager specifically waive any right to a trial by jury in any court with respect to any contractual, tortious or statutory claim, counterclaim or cross-claim against the other arising out of or connected in any way to the project or the Contract Documents. The complex commercial and professional aspects of the Contract make a jury determination neither desirable nor appropriate. Construction Manager shall include this provision in all of its subconsultants contracts and purchase orders. § 8.4.3 Removal Waiver. To the fullest extent permitted by law, Owner and Construction Manager specifically waive any right to remove any action to United States District Court for the District of Colorado, regardless of the presence of diversity of citizenship among or between the parties. Construction Manager shall include this provision in all of its subcontracts and purchase orders. § 8.4.4 Attorneys Fees: In the event that either party brings legal action to enforce any provision of this Contract, the prevailing party shall be awarded all of its reasonable costs and expenses, including attorney’s fees, incurred by such party in connection with such action. 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 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. § 9.2 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. If a termination by the Owner is subsequently determined to be wrongful, such termination shall automatically be converted into a termination for the Owner’s convenience. § 9.5 The Owner may terminate this Agreement upon not less than seven days’ written notice to the Construction Manager for the Owner’s convenience for any reason 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. § 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, plus an amount for the Construction Manager’s anticipated profit on the value of the services performed by the Construction Manager, as set forth below. § 9.7.1 In the event of termination for the Owner’s convenience prior to commencement of construction, the Construction Manager shall be entitled to receive payment for services performed, costs incurred by reason of such Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 18 termination and reasonable overhead and profit on Preconstruction services completed during the Preconstruction Phase. § 9.7.2 Omitted. ARTICLE 10 MISCELLANEOUS PROVISIONS § 10.1 This Agreement shall be governed by the law of the place where the Project is located. § 10.2 Terms in this Agreement shall have the same meaning as those in AIA Document A201–2007, General Conditions of the Contract for Construction, except for purposes of this Agreement, the term "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 successors and assigns and legal representatives to this Agreement. Neither the Owner nor the Construction Manager shall assign this Agreement 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 7 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 7 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 information. 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. 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: The fee for Design Phase Services approved and included in this Agreement is a lump sum of $292,996.00 in accordance with the approved Fee Schedule in Exhibit B, which includes an estimate of reimbursable expenses. The Construction Manager’s design phase services are time based and based on the schedule in Section 1.1.4 and Exhibit B. § 11.1.2 For Construction Phase Services in Section 3.3: Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 19 The optional Construction Phase Services may be awarded in writing and added to this Agreement at the Owner’s sole discretion subject to scope review and negotiation. § 11.2 For Additional Services designated in Section 4.1, the Owner shall compensate the Construction Manager as follows: (Paragraphs deleted) Not Applicable. § 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: (Paragraph deleted) Employee or Category Principal Project Director Senior Project Manager/CM Assistant Project Manager Rate ($0.00) $175.00 $150.00 $145.00 $105.00 § 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 zero percent ( 0 %), or as otherwise stated below: § 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. (Paragraphs deleted) Employee or Category Principal Project Director Senior Project Manager/CM Assistant Project Manager Rate ($0.00) $175.00 $150.00 $145.00 $105.00 § 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 and accommodation; .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 form documents; .5 Postage, handling and delivery; .6 Expense of overtime work requiring higher than regular rates only for non-exempt employees, 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 normally 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. Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 20 § 11.6.2 For Reimbursable Expenses the compensation shall be the expenses incurred by the Construction Manager and the Construction Manager’s consultants plus zero percent (0 %) of the expenses incurred., subject to approval of the Owner. § 11.7 Payments to the Construction Manager § 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. § 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. Eight percent (8%) § 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. § 11.7.4 Records of Reimbursable Expenses, expenses pertaining to Additional Services, and services performed 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 84-6000563. § 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. Architect 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 Architect 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 Architect. 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 Architect. Architect shall be solely and entirely responsible for its acts and for the acts of Architect’s agents, employees, servants and consultants during the performance of this contract. Architect 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 Architect and/or Architect’s employees engaged in the 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: Construction Manager: City Manager John Bills City of Aspen NV5, Inc. 130 South Galena Street 2650 18th Street, Suite 202 Aspen, Colorado 81611 With a copy to: James R. True, Esq. City Attorney Denver, CO 80211 130 South Galena Street Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 21 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. Architect 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 Owner 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 Architect to which the same may apply and, until complete performance by Architect 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. § 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, 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 8-17.5-102(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-verify program or the department program in order to verify that new employees are not illegal aliens. .4 Consultant hereby confirms that: Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 22 .1 Consultant shall not knowingly employ or contract with an illegal alien to perform 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. .4 Consultant shall not use the 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 stop 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). 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 C132™–2009, Standard Form Agreement Between Owner and Construction Manager as Adviser Init. / AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 23 .2 AIA Document A201™–2007, General Conditions of the Contract for Construction. (Paragraph deleted) .3 Exhibit A – Master Schedule .4 Exhibit B - Fee Worksheets .5 Exhibit C – Request for Proposal This Agreement is entered into as of the day and year first written above. CITY OF ASPEN NV5, INC. OWNER (Signature) CONSTRUCTION MANAGER (Signature) Steven Skadron, Mayor John Bills, Managing Director (Row deleted) Additions and Deletions Report for AIA ® Document C132TM – 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 11:59:28 on 10/15/2015. Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 1 PAGE 1 AGREEMENT made as of the 9th day of October in the year 2015 (In words, indicate day, month and year.) … (Name, legal status, address and other information) City of Aspen 130 South Galena Street Aspen, Colorado 81611 … (Name, legal status, address and other information) NV5, Inc.. 2650 18th Street, Suite 202 Denver, CO 80211 Phone: (303) 351-5045 Contact: John Bills … (Name, location and detailed description) City of Aspen Building Replacement Project 540 E. Main Street Aspen, Colorado 81611 … (Name, legal status, address and other information) Charles Cunniffe Architects, P.C. 610 E. Hyman Avenue Aspen, Colorado 81611 Phone: (970) 925-5590 Contact: Charles Cunniffe, Principal Charles@cunniffe.com PAGE 2 (Note the disposition for the following items by inserting the requested information or a statement such as "not applicable," "unknown at time of execution" or "to be determined later by mutual agreement.") … Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 2 (Identify documentation or state the manner in which the program will be developed.) The City of Aspen is in the process of developing a Plan to add / renovate a new facility solution including 14,000 – 16000 sf facility with a housing component for the Aspen Police Department at 540 E Main St and about 50,000 – 55,000 sf of city offices on currently held real estate assets in the City of Aspen core. The selected PM/OA will be a trusted advisor to CoA on contracts, schedule, cost, program, delivery, quality assurance and quality control, public outreach, internal outreach and responsible for the team maintaining overall performance and goals of the project. The schedule breaks the project into 5 phases, as follows Conceptual Design - The Galena Option was selected by Council on August 3, 2015. Schematic Design Design Development Final Design Construction Administration … (Identify or describe, if appropriate, size, location, dimensions, or other pertinent information, such as geotechnical reports; site, boundary and topographic surveys; traffic and utility studies; availability of public and private utilities and services; legal description of the site; etc.) See above. PAGE 3 (Provide total and, if known, a line item breakdown.) TBD … Police City Offices Conceptual Design Complete Complete Schematic Design 10/23/2015 12/31/2015 Design Development 2/19/2016 4/19/2016 P&Z/Permit 12/15/2015 2/15/2016 Bids (off 25% CD) 3/15/2016 4/31/2016 … The construction of the Work will commence by approximately 11/29/2016 .3 Substantial Completion date or milestone dates:for construction Work : 7/30/2018 .4 Other: Move-in: 8/20/2018 .4 Other:Close-out: 9/30/2018 subject to adjustments of this Contract Time as provided in the Contract Documents. Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 3 § 1.1.5 The Owner intends the following procurement method for the Project: (Identify method such as competitive bid, negotiated Contract or multiple Prime Contracts.) Obtain competitive bids on the basis of a Guaranteed Maximum Price from Contractors based on 25% complete Construction Drawings, with allowances for uncovering unknown existing conditions. … (List number and type of bid/procurement packages.) The Police Building program will be a separate, accelerated phase, two months ahead of the remaining program schedule. … (Identify special characteristics or needs of the Project not provided elsewhere, such as environmentally responsible design or historic preservation requirements.) Development Program Manager / Construction Manager as Advisor ("CMa") Responsibilities: .1 Conceptualization - Completed .2 Schematic Design • Overall facilitation, coordination, organization and direction of the integrated team • Coordinate assignment of responsibilities, actions and completion requirements • Coordinate and track integrated team’s performance • Coordination of overall project schedule with Updated procurement and construction schedule • Lead Value Engineering process • Final constructability analysis of construction systems selected • Update analysis of long lead items .3 Design Development • Overall facilitation, coordination, organization and direction of the integrated team • Coordinate alternative options for presentation to Owner • Coordinate and track integrated team’s performance • Ensure compliance with project requirements • Lead performance checking of building systems from the Integrated Team’s stakeholders • • Final analysis and recommendation on construction systems selected • Package Bid documents and draft RFP for Initial GC GMP, review response, and recommend in conjunction with project team • Monitor and update schedule .4 Construction Documents • Overall facilitation, coordination, organization and direction of the integrated team • Coordinate complete information for legal requirements of project as it relates to the owner’s procurement method • Lead the value engineering process to ensure highest value to the project • Coordinate team input and facilitating team buy-in for overall project schedule and budget • Monitor and update schedule • Package Bid documents for Initial GC GMP, review response, and recommend in conjunction with project team • Assist and manage procurement of miscellaneous Owner consultants (geotech, materials testing, envelope specialist, FF&E purchasing) Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 4 .5 Construction Administration & Closeout: This Scope of Work will not be included in the Agreement initially but may be added by Change Order at a later date upon negotiation with and approval by the Owner. • Overall facilitation, coordination, organization and direction of the team • Document control and management • Change order management • Cost control • QA / QC oversight and coordination • Oversight of the General Contractor, Architect and miscellaneous contracts • Review, monitor and report on schedule • Provide monthly progress reports on budget, cost, schedule and risk PAGE 4 (List name, address and other information.) City of Aspen 130 South Galena Street Aspen, Colorado Contact: Jack Wheeler, Capital Asset Manager Phone: (970) 429-1790 Fax: (970) 544-5378 … (List name, address and other information.) Not Applicable. § 1.1.10 Unless provided by the Construction Manager, the The Owner will retain the following consultants and contractors: (List name, legal status, address and other information.)The Architect, the geotechnical engineer, the Cost Estimator, and the Commissioning Agent. .1 Land Surveyor: The Architect will retain the civil, land planner, structural, mechanical, electrical, plumbing, irrigation, fire protection, law enforcement, sustainable practices, interior design, waterproofing, and landscaping engineers. .1 Commissioning Agent: PAGE 5 .3 Civil Engineer: .3 Omitted: … TBD … (List name, address and other information.) NV5, Inc. 2650 18th Street, Suite 202 Denver, CO 80211 Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 5 Phone: (303) 351-5045Contact: John Bills … (List any specific requirements and personnel to be included in the staffing plan, if known.) NV5, Inc. 2650 18th Street, Suite 202 Denver, Colorado 80211 Phone: (303) 351-5045 Contacts: Rob Taylor – Senior Project Manager Phone: 720.217.6822 … .1 Cost Estimator: (List name, legal status, address and other information.) Not Applicable. … .2 Other consultants: Not Applicable. § 1.1.14 The Construction Manager’s consultants retained under Additional Services: Not Applicable. … § 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, If such information should materially change, the Owner and the Construction Manager shall appropriately equitably adjust the schedules, the Construction Manager’s services and the Construction Manager’s compensation. PAGE 6 § 2.3 The Construction Manager shall provide its services in conjunction with the services of an Architect as described in AIA Document B132™–2009, B101™–2007, Standard Form of Agreement Between Owner and Architect, Construction Manager as Adviser Edition. as amended. The Construction Manager shall not be responsible for actions taken by the Architect. … § 2.6 The Construction Manager shall maintain the following minimum 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.Failure on the part of the Construction Manager to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of the contract. The Construction Manager shall not be relieved of any liability by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (i) Workers’ Compensation insurance to cover obligations imposed by applicable Colorado laws for any employee engaged in the performance of work under this contract, and Employers’ Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOU¬SAND DOLLARS ($500,000.00) disease - policy limit, and FIVE HUNDRED Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 6 THOUSAND DOLLARS ($500,000.00) disease - each employee. The policy shall contain a waiver of subrogation in favor of the Owner. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision and a waiver of subrogation in favor of the Owner. (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Construction Manager’s owned, hired and non-owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision and a waiver of subrogation in favor of the Owner. (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. § 2.6.1 Comprehensive General Liability with policy limits of not less than ($ ) for each occurrence and in the aggregate for bodily injury and property damage.Every policy required above shall be primary insurance, and any insurance carried by the Owner, or carried by or provided through any insurance pool of the Owner, shall be excess and not contributory insurance to that provided by Construction Manager. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Construction Manager shall be solely responsible for any deductible losses under any policy required above. § 2.6.2 Automobile Liability covering owned and rented vehicles operated by the Construction Manager with policy limits of not less than ($ ) combined single limit and aggregate for bodily injury and property damage.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. The certificate shall identify this contract and the policy shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the Owner. Owner reserves the right to request and receive a certified copy of any policy and any endorsement thereto. § 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 ($ ). § 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 ($ ) 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. PAGE 7 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, budgeting, and Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 7 allocation of construction activities among the Multiple Prime Contractors.Contractors, and representing the Owner’s interests as it relates to project oversight and Owner’s Representation, on-site observation, schedule review, cost review, and constructability review. … § 3.2.3 The Construction Manager shall prepare, and deliver to the Owner, a written Construction Preconstruction 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 Preconstruction 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 review 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 Owner’s Cost Estimator shall provide cost evaluations of those alternative materials and systems and may also provide its own suggestions. … § 3.2.6 The Construction Manager shall prepare and periodically update the Project schedule included in the Construction Preconstruction 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 budgets of the Cost of the Work of increasing detail and refinement. The Construction Manager in conjunction with the Owner’s Cost Estimator 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. PAGE 8 § 3.2.13 The Construction Manager shall expedite and coordinate the ordering and assist the Contractor with review of submittals and expedited payments to expedite and coordinate the delivery of materials, including those that must be ordered well in advance of construction. … § 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 review and 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 quasi- governmental authorities for inclusion in the Contract Documents. § 3.2.17 Following the Owner’s approval of the 25% Construction Document Drawings and Specifications, the Construction Manager shall update and submit the latest estimate the latest budget, including the latest Cost Estimate provided by the Owner’s Cost Estimator, of the Cost of the Work and the Project schedule for the Architect’s review and the Owner’s approval. Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 8 … § 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. PAGE 9 § 3.3 Construction Phase Administration of the Construction Contract [SCOPE OF WORK NOT INCLUDED AT THIS TIME BUT MAY BE ADDED BY CHANGE ORDER AT A LATER TIME.] … § 3.3.3 The Construction Manager shall provide on-site administration of and oversight to the Contract Documents including the Contracts for Construction in cooperation with the Architect as set forth below and in AIA Document A232™–2009, A201™–2007, 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. as amended § 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 Contractor 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 The Construction Manager shall ensure that the Contractor updates and reissues the Contractor’s construction schedule as required to show current conditions. If an update to the Contractor’s construction schedule 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 Contractor shall schedule and conduct meetings to discuss such matters as procedures, progress, coordination, and scheduling of the Work. The Construction Manager Contractor shall prepare and promptly distribute minutes to the Owner, Architect and Multiple Prime Contractors.and Contractor. The Construction Manager shall attend and contribute to such meetings. § 3.3.7 Utilizing information from the Multiple Prime Contractors, the Construction Manager shall schedule and coordinate the Contractors, the Construction Manager shall coordinate the resolution of any conflicts between the Contractors working on the site, including 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.Omitted. § 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. Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 9 § 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 information presented. The Construction Manager shall also report the Contractor’s cost control information to the Owner.Owner against the Contract GMP and approved Change Orders. § 3.3.11 The Construction Manager shall develop cash flow reports and forecasts for the Project.Omitted. § 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.Omitted. § 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 Contractor for progress and final payments. § 3.3.12.2 Not more frequently than monthly, the Construction Manager shall review and certify recommend the amounts due the respective Contractors as follows: .1 Where 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 recommend 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 recommend 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 recommend 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 recommendation 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 recommendation 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 recommendation of an 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 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 the Contractor 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. Contractor. 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 Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 10 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 carry out observations to 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, Contractor, 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 Contractor shall transmit to the Architect, with a copy to the Construction Manager, 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.arise with the coordination of the Owner, Construction Manager, Architect, and relevant authorities and affected parties, as necessary. The Construction Manager shall take no action on such requests unless the Architect requests specific action from the Construction Manager. The Construction Manager shall also provide oversight of the RFI process to ensure the compliance of the Architect and Contractor to their obligations to resolve RFIs, to facilitate resolution, and to inform the Owner when a decision from the Owner is required. § 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 and submit recommendations to the Architect and Owner regarding Change Orders and Construction Change Directives. If they are accepted, the Contractor shall prepare Change Orders and the Architect shall prepare and issue Construction Change Directives that incorporate the Architect’s modifications to the Contract Documents. PAGE 11 § 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.The Construction Manager shall Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 11 provide oversight of the Contractor’s and Architect’s compliance with the submittal schedule. and report to the Owner on such compliance, to enable the Contractor’s timely completion of the work. § 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.report to the Owner on a weekly basis observations of project progress and provide a report capturing project progress and any defects or observations that will require Contractor or Architect action. § 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:below and additionally report the following executive-level information to the Owner on a monthly basis: .1 Work completed for the period;Overall project status, including work completed during the previous month; .2 Project schedule status; key construction activities planned for the upcoming month; … .4 Request Review of open submittals, requests for information, Change Order, Orders, and Construction Change Directive status reports;Directives requiring Owner’s attention; … .6 Updated project cost compared to original budget; .7 Status report of nonconforming and rejected Work; .7 Daily logs; .8 Summary of all Multiple Prime Contractors’ Applications for Payment;Review of any Owner contracts or contract-related actions which need Owner attention; .9 Overview of risk items; .10 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; andany … § 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: Omitted. § 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 r equired 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.Omitted. PAGE 12 Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 12 § 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. … § 3.3.25 When the Work or designated portion thereof is substantially complete, the Construction Manager Architect shall prepare, and the Construction Manager Owner, Contractor and Architect shall execute, a Certificate of Substantial Completion. The Construction Manager shall submit the executed Certificate review the Certificate and make any necessary recommendations to the Owner and Contractor. The Construction Manager Contractor shall coordinate the correction and completion of the Work. Following issuance of a Certificate of Substantial Completion of the Work or a designated portion thereof, the Construction Manager Architect shall evaluate the completion of the Work of the Contractor or Multiple Prime Contractors Contractor, with assistance from the Construction Manager, and make recommendations to the Architect and Owner 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: Contractor: (1) certificates of insurance received from the Contractor or Multiple Prime Contractors; Contractor; (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 Contractor shall deliver all keys, manuals, record drawings and maintenance stocks to the Owner. The Construction Manager directly to the Owner, with a copy of the Transmittal to the Architect and Construction Manager. The Contractor 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. Contractor. Consent shall not be unreasonably withheld. … § 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.)Omitted. … § 4.1.1 Measured drawings § 4.1.2 Architectural interior design (B252™–2007) § 4.1.3 Tenant-related services § 4.1.4 Commissioning (B211™–2007) § 4.1.5 LEED® certification (B214™–2012) § 4.1.6 Furniture, furnishings, and equipment design (B253™–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. Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 13 Omitted. PAGE 13 § 4.3.1 Upon recognizing the need to perform the following Additional Services, the Construction Manager shall notify the Owner in writing 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: … § 4.3.2 To avoid delay in the Construction Phase, the Construction Manager shall provide the following Additional Services, notify the Owner in writing 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: … .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 ( ) forty-eight ( 48) 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 14 § 5.4 The Owner shall retain an Architect to provide services, duties and responsibilities as described in AIA Document B132–2009, B101–2007, Standard Form of Agreement Between Owner and Architect, Construction Manager as Adviser Edition. as amended . 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. … § 5.6 Unless provided by the Construction Manager, the 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 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. … § 5.13 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. Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 14 The Owner shall promptly notify the Construction Manager of any direct communications that may affect the Construction Manager’s services. PAGE 15 § 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.Not used. … 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 Construction Manager’s consultants, if any, 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. … § 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. law. 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, A201–2007, General Conditions of the Contract for Construction. 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. PAGE 16 § 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 American Arbitration Association 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. … § 8.2.4 If 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 Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 15 [ ] Litigation in a court of competent jurisdiction [ ] Other: (Specify) litigation in District Court, Pitkin County, State of Colorado. … Omitted. § 8.3.1 If the parties have selected arbitration as the method for binding dispute resolution in this Agreement any claim, dispute or other matter in question arising out of or related to this Agreement subject to, but not resolved by, mediation shall be subject to arbitration which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with its Construction Industry Arbitration Rules in effect on the date of the Agreement. A demand for arbitration shall be made in writing, delivered to the other party to this Agreement, and filed with the person or entity administering the arbitration. § 8.3.1.1 A demand for arbitration shall be made no earlier than concurrently with the filing of a request for mediation, but in no event shall it be made after the date when the institution of legal or equitable proceedings based on the claim, dispute or other matter in question would be barred by the applicable statute of limitations. For statute of limitations purposes, receipt of a written demand for arbitration by the person or entity administering the arbitration shall constitute the institution of legal or equitable proceedings based on the claim, dispute or other matter in question. § 8.3.2 The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by parties to this Agreement shall be specifically enforceable in accordance with applicable law in any court having jurisdiction thereof. § 8.3.3 The award rendered by the arbitrator(s) shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. Omitted. § 8.3.4.1 Either party, at its sole discretion, may consolidate an arbitration conducted under this Agreement with any other arbitration to which it is a party provided that (1) the arbitration agreement governing the other arbitration permits consolidation, (2) the arbitrations to be consolidated substantially involve common questions of law or fact, and (3) the arbitrations employ materially similar procedural rules and methods for selecting arbitrator(s). § 8.3.4.2 Either party, at its sole discretion, may include by joinder persons or entities substantially involved in a common question of law or fact whose presence is required if complete relief is to be accorded in arbitration, provided that the party sought to be joined consents in writing to such joinder. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of any claim, dispute or other matter in question not described in the written consent. § 8.3.4.3 The Owner and Construction Manager grant to any person or entity made a party to an arbitration conducted under this Section 8.3, whether by joinder or consolidation, the same rights of joinder and consolidation as the Owner and Construction Manager under this Agreement. § 8.4 Litigation § 8.4.1 Litigation. This Contract, and all matters interpreting it and arising under it shall be enforced in, and all parties do now submit to, the exclusive jurisdiction and venue of the District Court, County of Pitkin, State of Colorado, in the event of any litigation concerning this Contract, and regardless of where this Contract may be executed. Each party consents to and agrees to file a general appearance in the event that it receives service of process. Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 16 § 8.4.2 Jury Trial Waiver. To the fullest extent permitted by law, Owner and Construction Manager specifically waive any right to a trial by jury in any court with respect to any contractual, tortious or statutory claim, counterclaim or cross-claim against the other arising out of or connected in any way to the project or the Contract Documents. The complex commercial and professional aspects of the Contract make a jury determination neither desirable nor appropriate. Construction Manager shall include this provision in all of its subconsultants contracts and purchase orders. § 8.4.3 Removal Waiver. To the fullest extent permitted by law, Owner and Construction Manager specifically waive any right to remove any action to United States District Court for the District of Colorado, regardless of the presence of diversity of citizenship among or between the parties. Construction Manager shall include this provision in all of its subcontracts and purchase orders. § 8.4.4 Attorneys Fees: In the event that either party brings legal action to enforce any provision of this Contract, the prevailing party shall be awarded all of its reasonable costs and expenses, including attorney’s fees, incurred by such party in connection with such action. § 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 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. PAGE 17 § 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. If a termination by the Owner is subsequently determined to be wrongful, such termination shall automatically be converted into a termination for the Owner’s convenience. § 9.5 The Owner may terminate this Agreement upon not less than seven days’ written notice to the Construction Manager for the Owner’s convenience for any reason 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 Termination Expenses as defined in Section 9.7. due. § 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, plus an amount for the Construction Manager’s anticipated profit on the value of the services not performed by the Construction Manager, as set forth below. § 9.7.1 In the event of termination for the Owner’s convenience prior to commencement of construction, the Construction Manager shall be entitled to receive payment for services performed, costs incurred by reason of such termination and reasonable overhead and profit on Preconstruction services not completed during the Preconstruction Phase. § 9.7.2 In the event of termination for the Owner’s convenience after commencement of construction, the Construction Manager shall be entitled to receive payment for services performed and costs incurred by reason of such termination, along with reasonable overhead and profit on services not completed during the Construction Phase.Omitted. Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 17 PAGE 18 § 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.located. § 10.2 Terms in this Agreement shall have the same meaning as those in AIA Document A232–2009, A201–2007, General Conditions of the Contract for Construction, except for purposes of this Agreement, the term "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, successors and assigns and legal representatives to this Agreement. Neither the Owner nor the Construction Manager shall assign this Agreement 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 7 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 7 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. … § 10.7 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 information if the Owner has previously advised the Construction Manager in writing of the specific information considered by the Owner to be confidential or proprietary. information. The Owner shall provide professional credit for the Construction Manager in the Owner’s promotional materials for the Project. … (Insert amount of, or basis for, compensation, including stipulated sums, multiples or percentages.) The fee for Design Phase Services approved and included in this Agreement is a lump sum of $292,996.00 in accordance with the approved Fee Schedule in Exhibit B, which includes an estimate of reimbursable expenses. The Construction Manager’s design phase services are time based and based on the schedule in Section 1.1.4 and Exhibit B. PAGE 19 (Insert amount of, or basis for, compensation, including stipulated sums, multiples or percentages.) The optional Construction Phase Services may be awarded in writing and added to this Agreement at the Owner’s sole discretion subject to scope review and negotiation. § 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.) Not Applicable. … Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 18 (Insert amount of, or basis for, compensation.) Employee or Category Principal Project Director Senior Project Manager/CM Assistant Project Manager Rate ($0.00) $175.00 $150.00 $145.00 $105.00 § 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 zero percent ( 0 %), or as otherwise stated below: … (If applicable, attach an exhibit of hourly billing rates or insert them below.) Employee or Category Principal Project Director Senior Project Manager/CM Assistant Project Manager Rate ($0.00) $175.00 $150.00 $145.00 $105.00 … .1 Transportation and authorized out-of-town travel and subsistence; subsistence and accommodation; … .6 Expense of overtime work requiring higher than regular rates, rates only for non-exempt employees, if authorized in advance by the Owner; PAGE 20 § 11.6.2 For Reimbursable Expenses the compensation shall be the expenses incurred by the Construction Manager and the Construction Manager’s consultants plus percent ( %) of the expenses incurred.zero percent (0 %) of the expenses incurred., subject to approval of the Owner. … § 11.7.1 An initial payment of Zero ($ 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. § 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.) % Eight percent (8%) § 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 Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 19 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. Work. … § 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 84-6000563. § 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. Architect 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 Architect 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 Architect. 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 Architect. Architect shall be solely and entirely responsible for its acts and for the acts of Architect’s agents, employees, servants and consultants during the performance of this contract. Architect 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 Architect and/or Architect’s employees engaged in the 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: Construction Manager: City Manager John Bills City of Aspen NV5, Inc. 130 South Galena Street 2650 18th Street, Suite 202 Aspen, Colorado 81611 With a copy to: James R. True, Esq. City Attorney Denver, CO 80211 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. Architect 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 Owner 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 Architect to which the same may apply and, until complete performance by Architect 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. § 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. Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 20 § 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, 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 8-17.5-102(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-verify 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 illegal alien to perform 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. .4 Consultant shall not use the 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 Additions and Deletions Report for AIA Document C132™ – 2009 (formerly B801™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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 21 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 stop 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). PAGE 23 .2 AIA Document E201™–2007, Digital Data Protocol Exhibit, if completed, or the following: A201™–2007, General Conditions of the Contract for Construction. .3 AIA Document E202™–2008, Building Information Modeling Protocol Exhibit, if completed, or the following: .3 Exhibit A – Master Schedule .4 Other documents:.4 Exhibit B - Fee Worksheets (List other documents, if any, including additional scopes of service forming part of the Agreement.).5 Exhibit C – Request for Proposal This Agreement is entered into as of the day and year first written above. CITY OF ASPEN NV5, INC. … Steven Skadron, Mayor John Bills, Managing Director (Printed name and title) (Printed name and title) AIA Document D401™ – 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 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 11:59:28 on 10/15/2015 under Order No.1893379848_1 which expires on 02/12/2016, and is not for resale. User Notes: (942364533) 1 Certification of Document’s Authenticity AIA® Document D401™ – 2003 I, Janet Lawler McDaniel, 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 11:59:28 on 10/15/2015 under Order No. 1893379848_1 from AIA Contract Documents software and that in preparing the attached final document I made no changes to the original text of AIA® Document C132™ – 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)