AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES FOR UTILITIES BUSINESS OPERATIONS FACILITIES

Transcription

1 AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES FOR UTILITIES BUSINESS OPERATIONS FACILITIES Between MANATEE COUNTY And HALFACRE CONSTRUCTION COMPANY

2 Table of Contents A11icle L Article It Article III. Article IV Article V. Article VI. Article VII. Article VIII. Article IX. Article X. Article Article XII. Article XIII. Article XIV. Article Article XVI. Article XV II. DEFINITIONS.... RELATIONSHIP AND RESPONSIBILITIES.... COMPENSATION.... SUBCONTRACTORS.... CHANGE ORDERS.... ROLE OF ARCHITECT OWNER'S RESPONSIBILITy.... PROJECT BUDGET, COST OVERRUNS, PROJECT CONTINGENCY.... RESOLUTION OF DISAGREEMENTS; CLAIMS FOR COMPENSATION. INSURANCE, INDEMNITY, AND WAIVER OF SUBROGATION..... ACCOUNTING RECORDS; OWNERSHIP OF DOCUMENT.... PUBLIC CONTRACT LAW.... FORCE MAJEURE, FIRE OR OTHER CASUALTy.... REPRESENTATIONS, WARRANTIES AND COVENANTS.... TERMINATION.... REMEDIES.... MISCELLANEOUS PROVISIONS.... SIGNA TURE PAGE

3 CONTRACT EXHIBITS A B C D Key Team Members Organization Chart Reimbursable and Non-reimbursable Costs Constmction Manager Rates Form of GMP Addendum

4 AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES FOR UTILITIES BUSINESS OPERATIONS FACILITIES between MANATEE COUNTY and HALFACRE CONSTRUCTION COMPANY THIS AGREEMENT is made and entered into this day of,2014, between Manatee County, Florida, a political subdivision of the State of Florida, referred as "Owner", and the firm of Halfacre Construction Company. incorporated in the State and registered and licensed to do business in the State of Florida (license referred to herein as "Construction Manager". WHEREAS, Owner intends to construct a Utilities Business Operations Facilities the aforementioned improvements being hereinafter referred to and defined as the "Project", and WHEREAS, Owner desires Construction Manager to provide the professional construction management services requisite to the implementation of the Project, and \VHEREAS, in response to Owner's Request for Proposals No DC (the "RFP"), Construction Manager has submitted its Proposal (the "Proposal") to provide the aforementioned services. NOW THEREFORE, Owner and Construction Manager, in consideration of the mutual covenants hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE I DEFINITIONS 1.1 Definitions. For purposes of this Agreement, the following terms shall have the meanings. infrastructure. A. Acceptance: The Acceptance of the Project into Owner's operating public B. Architect: Ugarte & Associates, Inc., registered and licensed to do business in the State of Florida. C. Change Order: A written instrument, pursuant to Article V, prepared by the Architect and signed by the Owner, the Construction Manager and the Architect, stating their agreement upon; (i) a change in the Work, (ii) the amount of adjustment, if any. in the GMP, and, the extent of adjustment, if any, in the Contract Time.

5 ,i\tltr.if't~ rf D. Constmction Inspector: A constmction inspection firm to be separately by Owner for verification that the Work is in compliance to the Project Plans and registered and licensed to do business in the State of Florida. E. Constmction Manager: Halfacre Constmction Company, a Florida Corporation, registered and licensed to do business in the State of Florida. F. Constmction Manager's Personnel (or Personnel): Constmction Manager's key personnel shown in Exhibit "A", Key Team Members Organization Chart, or other personnel as are designated by Constmction Manager, subject to prior written consent of Owner, such consent not to be unreasonably withheld. G. Constmction Services: The Constmction Services to be provided by Constmction Manager pursuant to Section 2.4, in accordance with the terms and provisions of this Agreement. H. Constmction Team: The working team established pursuant to Section L Final Completion Date: The date upon which the Project is fully constructed and all Work required on the Project and Project Site is fully performed as verified in writing by Owner's Representative. J. Force Majeure: Those conditions constituting excuse from performance as described in and subject to the conditions described in Article XIII. K. Guaranteed Maximum Price or GMP: The maximum amount to be paid to Constmction Manager for Constmction Services to be established pursuant to Section 3.2.A. L. Notice to Proceed Preconstmction Services (NTPP): A written instmment issued and executed by the Owner's Representative, instmcting the Constmction Manager of the date upon which Preconstmction Phase Services shall start, and the date upon which Preconstmction Phase Services shall be completed. M. Notice to Proceed Constmction (NTPC): A written instmment issued and executed by the Owner's Representative, instmcting the Constmction Manager of the date upon which Constmction Services shall start, and the date upon which Construction Services shall be completed. N. Owner: Manatee County, a political subdivision of the State of Florida. O. Owner's Project Budget: Owner's funds budgeted and requested for the Project for constmction, including Constmction Manager's compensation hereunder but excluding the Architect fees, permit fees and land acquisition costs. II 2

6 P. Owner's Representative: The Director, Property Management Department, or such other individual designated by the County Administrator, from time to time, to written notice in accordance with Section19.1. Section Q. Project Contingency: The contingency fund established pursuant to R. Payment and PerfOImance Bond: The Payment and Perfonnance Bond posted pursuant to Section 2.4.L to guarantee payment and performance by Construction Manager its obligations hereunder. S. Penuitting Authority: Any applicable governmental agency or other legally empowered regulatory body or authority acting within its governmental and regulatory capacity which is required to issue or grant any penuit, certificate, license, or other approval which is required as a condition precedent to the commencement of any construction of the or any part thereof, including the building penuit. T. Preconstruction Services: The Preconstruction Services to be provided by Construction Manager pursuant to Section 2.3, in accordance with the terms and provisions of this Agreement. located U. Project: The Manatee County Utilities Business Operations Facilities Bradenton, Florida. V. Project Costs: The cost of the Work for the Project means all of the costs inclld'ed by Construction Manager to plan, construct and equip the Project, established pursuant to Exhibit B, Section II, and included within and paid as a component of, thegmp. W. Project Manager: Tom Rees, Construction Manager's primary representative or such other individual designated by Construction Manager, subject to the prior written consent of Owner. X. Project Plans and Specifications: The one hundred percent (100%) drawings and specifications to be prepared by the Architect, and any changes, supplements, amendments or additions thereto approved by Owner and Construction Manager, which shall also include any construction drawings and final specifications required for the or construction of the Project, as provided herein. Y. Project Schedule: The schedule and sequence of events for the commencement, progression and completion of the Project, developed pursuant to Section 2.3.C, as such schedule may be amended as provided herein. Project Site: The site depicted in the Project Plans and Specifications, inclusive of all affected rights of way, easements or licensed or leased sovereign lands. 3

7 AA. Punch List Completion Date: The date upon which all previously or unsatisfactory items, as identified by Construction Manager, the Architect and/or Owner are completed in a competent and workmanlike manner, consistent with standards for facilities this type and with good building practices in the State of Florida, to be established pursuant to Section 2.4.Q(8). of BB. Purchasing Ordinance: The Manatee County Purchasing Code, Chapter 2- Manatee County Code of Laws, as amended from time to time. Cc. Subcontractor: Any individual (other than a direct employee of Construction Manager) or organization retained by Construction Manager to plan, construct or equip the Project pursuant to Article IV. DD. Substantial Completion: The stage of the Work when the Project is sufficiently complete in accordance with the Contract Documents so that the Owner may occupy full and beneficial use of the Project for all of the purposes intended. Fmthermore, Substantial Completion shall be evidenced by the latest date of issuance of any of the: (i) the s certificate of Substantial Completion, (ii) written Acceptance of the Project by the and (iii) the final approval(s) from any and all applicable permitting agencies. EE. Substantial Completion Date: The date on which the Project is required to be Substantially Complete, as established in the NTPC. The Substantial Completion Date is the date by the NTPC. FF. Work: The term "Work" as used herein shall mean the construction and required by this Agreement whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Construction Manager to fulfill the Construction Manager's obligations. The Work may constitute the whole or a part of the Project. ARTICLE II RELATIONSHIP AND RESPONSIBILITIES 2.1 Relationship between Construction Manager and Owner. Construction Manager accepts the relationship of trust and confidence established with Owner pursuant to this Construction Manager shall furnish its skill and judgment and cooperate with Owner Owner's Representative in furthering the interests of Owner. Construction Manager agrees to provide the professional services required to complete the Project consistent with Owner's direction and the terms of this Agreement. All services provided hereunder by Construction Manager, either directly or through Subcontractors, shall be provided in accordance with sound practices and applicable professional constmction standards. The Owner agrees to fumish or approve, in a timely manner, information required by the Construction Manager and to make payments to the Construction Manager in accordance with the requirements of the Contract Documents. 4

8 2.2 General Construction Manager Responsibilities. In addition to the other responsibilities set forth herein, Construction Manager shall have the following responsibilities pursuant to this Agreement: A. Purpose; Reserved Rights; and Waiver. The purpose of this Agreement is for the provision of construction management services for the Project on the Project Construction Manager, and construction of the Project by Construction Manager in with the Project Plans and Specifications. The further purpose of this Agreement is to define and delineate the responsibilities and obligations of the parties to this Agreement and to express the desire of all such parties to cooperate together to accomplish the purposes and of this Agreement. B. Construction Team. Construction Manager, Owner and Architect shall be called "Construction Team" and shall work together as a team from the stage existing upon full of this Agreement through Substantial Completion. Construction Manager and Architect shall work jointly during the preconstruct ion design phase and through completion and shall available thereafter should additional services be required. Construction Manager shall leadership to the Construction Team on all matters relating to construction. Construction Manager understands, acknowledges and agrees that the Architect shall provide leadership to the Construction Team on all matters relating to design. C. Response to Request for Proposal. The proposal submitted by Construction Manager to Owner is hereby found to be consistent with and in conformance with the provisions of Owner's RFP, and is in the best interests of the citizens of Manatee County, Florida. It is the intent of the parties that Construction Manager's services be implemented pursuant to this Agreement. Construction Manager acknowledges that the representations and statements or information contained in its Proposal and those given during Construction Manager process have been relied upon by Owner and have resulted in the selection of Construction Manager as Construction Manager for this Project. D. Personnel. Construction Manager represents that it has secured or will secure all Personnel necessary to perform this Agreement, none of whom shall be employees of Owner. Primary liaison between Construction Manager and Owner shall be through Owner's Representative and Construction Manager's Project Manager. All of the services required herein will be performed by Construction Manager or under Construction Manager's supervision, and all Personnel engaged in the Work shall be fully qualified and shall be authorized or permitted under law to perform such services. E. Cooperation with Architect. Construction Manager's services shall be provided in conjunction with the services of the Architect. In the performance of professional services, Construction Manager acknowledges that time is critical for Project delivery and that portions of the Work may have their design completed for separate construction phases and under construction before other portions of the Work are fully designed. It is further recognized that this method of project delivery utilizing the services of an Architect and a Construction Manager at risk requires maximum cooperation between all parties. 5

9 Timely Performance. Construction Manager shall perform all services as expeditiously as possible using its professional skill and care and the orderly progress of the accordance with the terms of this Agreement and the Project Schedule established to Section 2.3.C. Verification of estimated Project Schedule goals will be made as requested by Owner. G. Duty to Defend Work. In the event of any dispute between Owner and Permitting Authority that relates to the quality, completeness or professional workmanship Construction Manager's services or work product, Construction Manager shall, at its sole cost and expense, cooperate with Owner to defend the quality and workmanship of Construction Manager's services and work product. 2.3 Preconstruction Services. Upon receipt of a NTPP, Construction Manager shall provide the following Preconstruction Services, which shall commence upon such notice to proceed and, unless otherwise modified pursuant to any Change Order, shall conclude within six (6) months therefrom: A. Extent of Responsibility. The Construction Manager shall exercise reasonable care in preparing schedules and estimates. The Construction Manager, however, does not warrant or guarantee estimates and schedules except as may be included as part of the GMP. The Construction Manager is not required to ascertain that the drawings and specifications are in accordance with applicable laws, statutes, ordinances, codes, regulations, and rules, or lawful orders of public authorities, but the Construction Manager shall promptly report to the Architect and Owner any non-conformity discovered by or made known to the Construction Manager as a request for information in such form as the Architect may require. B. Value Engineering. Construction Manager shall review the Project Plans and Specifications of the Architect, as they are provided to Construction Manager from time to time, and provide comments to Owner and Architect, throughout the design process, for the purpose of value engineering the Project. Such value engineering shall include, without limitation, the following services: (1) Review and Recommendations. Immediately upon full execution of this Agreement, Construction Manager shall familiarize itself thoroughly with the current partial design and with all associated disciplinary Work, including but not limited to the architectural, civil, mechanical, plumbing, electrical, and structural Project Plans and Specifications developed by the Architect for the Project at that time. Construction Manager shall make recommendations with respect to the selection of systems and materials and cost-reducing alternatives (i.e., value engineering and life cycle cost analysis), including assistance to the Architect and Owner in evaluating alternative comparisons versus 10ng-telID cost effects. The evaluation shall address the benefits of the speed of erection and early completion of the Project. Construction Manager shall furnish pertinent information as to the availability of materials and labor that will be required. Construction 6

10 Manager shall call to Owner's and the Architect's attention any apparent defects or inconsistencies in the design, drawings and specifications, or other documents. Additionally, Constmction Manager, based upon the preliminary design and other design criteria prepared by the Architect, shall evaluate Owner's Project Budget and shall prepare preliminary estimates of construction cost. If Constmction Manager suggests or recommends alternative materials and systems, or if an examination of alternative materials and systems is suggested by Architect or Owner, Construction Manager shall provide cost evaluations of such alternative materials and systems. Construction Manager shall provide, at a minimum, estimates of Project Costs at certain design intervals including but not necessarily limited to schematic design, design development, and seventy percent (70%) construction documents and ninety five percent (95%) construction documents. (2) Procurement. Construction Manager shall review the Project Plans and Specifications for the purpose of identifying long lead procurement items (machinery, equipment, materials and supplies). When each item is identified, Constmction Manager shall notify Owner and the Architect of the required procurement and schedule. As soon as practical, Construction Manager shall prepare invitations for bids. Copies shall be supplied to Owner in advance of the invitation for bid for Owner's information and comment. Construction Manager shall keep itself informed of the progress of the respective Subcontractors or suppliers manufacturing or fabricating such items, and shall advise Owner and Architect of any problems or prospective delay in delivery. (3) Separate Contracts Planning. Construction Manager shall review the design and shall determine how it desires to divide the sequence of construction activities, and will determine the breakdown and composition of bid packages for award and shall supply a copy to Owner for its review. Constmction Manager shall take into consideration such factors as natural and practical lines of severability, sequencing effectiveness, access and availability constraints, total time for completion, construction market conditions, availability of labor and materials, community relations, and any other factors pertinent to saving time and cost by overlapping design and construction that are authorized by Owner. Construction Manager shall supply Owner with a copy of the schedule for Owner's information and comment. Construction Manager will work in conjunction with Owner's Representative and the Architect, to ensure that the bid list includes local, small andlor minority businesses, and otherwise complies with the requirements of Section C. Development of GMP. Pursuant to Section 3.2.A, Construction Manager shah provide Owner with a proposed GMP for the Project, in accordance with the requirements of this Agreement, and based upon the competitive selection of Subcontractors in accordance with IV. 7

11 D. Requirement to Solicit Bids; Self Perfonnance. Except as expressly in this Section, Construction Manager shall competitively bid all acquisition of and services (other than actual construction management services) necessary to construct the Project in accordance with this Article. Construction Manager shall utilize such bids to determine the GMP in accordance with Section 3.2.A, and the solicitation and award of such shall be considered Preconstruction Services governed by Sections 2.3 and 3.1. Except as authorized by Owner, in writing, Construction Manager shall not self-perform any actual constnlction, or directly supply any materials, for the Project without first obtaining the written permission of Owner's Representative. For purposes of this Section, only services detailed in Exhibit "8", Part I, shall be considered actual construction management services. E Bids. Without assuming responsibilities of the Architect, ConstnIction Manager shall prepare invitations for bids, or requests for proposals when applicable, for all procurement of materials and services for Subcontractor contracts and for Project Site utilities. Such invitations for bids shall be prepared in accordance with the following provisions: 1. A. Market Analysis and Stimulation of Subcontractor Interest. a. The purpose of this subsection is to insure that Construction Manager makes a genuine effort to stimulate interest in the Project and maximize participation of potential qualified Subcontractors in the selection process with emphasis placed on recruiting and using local, small andlor minority businesses. Owner shall review and approve the factors to be used to evaluate the qualifications of Subcontractors to be selected, which approval shall not be unreasonably withheld. Construction Manager shall monitor conditions in the construction market to identify factors that will or may affect costs and time for completing the Project and make analyses as necessary to (i) detennine and report on availability of labor, materials, equipment, potential labor or material cost changes, and (ii) in light of such determination, make recommendations and take action as may be appropriate with respect to long-lead procurement, separation of construction into Subcontractor packages, sequencing of Work, use of alternative materials, equipment or methods, other economies in design or construction, and other matters that will promote cost savings and Substantial Completion within the schedule time. (b) As various bid packages are prepared for bidding, Construction Manager shall submit to Owner and Architect a list of potential bidders. Construction Manager shall use reasonable efforts to stimulate bidder interest in the local marketplace and identify and bidding competition. Should the nature of the trade package prohibit three bids, Construction Manager shall notify Owner's Representative in writing as to the reason and offer suggestions, if any, to create trade interest. F. Preparation of Bid Packages. Construction Manager shall prepare all documents for procurement of long lead items, materials and services for Subcontractor contracts and Project Site utilities. As part of such preparation, Construction Manager shall review the specifications and drawings prepared by the Architect. Ambiguities, conflicts or lack of clarity of language, use of illegally restrictive requirements, and any other defects in the specifications or in drawings noted by Construction Manager shall be brought to the attention of Owner's,-,rfHa," Coordinator and Architect in written fonn. 8

12 G. Pre-Bid Conferences. Construction Manager and Owner's Representative shah mutually agree when and if to conduct a pre bid conference with prospective bidders and the Architect. In the event questions are raised which require an interpretation of the bidding documents or otherwise indicate a need for clarification or correction of the invitation, Construction Manager shall transmit these to Owner's Representative and the Architect and, upon clarification or correction in writing, shall prepare an addendum to the bidding document, and issue same to all of the prospective bidders. In the event questions are raised which require an interpretation of the documents or otherwise indicate a need for clarification or Construction Manager shall transmit these to the Architect and upon receiving or correction in writing, shall prepare an addendum to the document and issue same the prospective Subcontractors. ( 1) The Preconstruction Project Schedule shall include: (a) (b) The date when Preconstruct ion activities may begin as established in the NTPP. The duration for the Preconstruction Services as established by this Agreement. (c) The date on which Preconstruct ion IS anticipated to end, as established in the NTPP. (d) (e) (f) (g) (h) (i) Identification of all Preconstruct ion activities. Based on information developed by the Architect and Construction Manager, the anticipated duration of each Preconstruction activity. Based on the anticipated duration of all Preconstruction activities and their interrelationships, when taken collectively, the total duration of all Preconstruction Phase activities as well as the projected dates for completion of Preconstruction activities resulting or established there from. The party responsible for each Preconstruction activity. Based on information provided by Owner, duration of time to allow for Owner's consideration and acceptance of the GMP when submitted by Construction Manager. Based on information developed by the Architect and Construction Manager, the date on which the NTPC may be reasonably anticipated to be issued and the Construction Commencement Date that may be reasonably anticipated to be stipulated therein. 9

13 U) Based on the anticipated Construction Commencement Date and duration of Construction, the projected dates for Substantial Completion and Final Completion. (k) (I) (m) The Preconstruction Project Schedule shall indicate the longest sequence of interdependent Preconstruction activities that must be completed on time for the Preconstruction to be completed within the time stipulated in the NTPP. This sequence of activities shall be referred to as the "Critical Path". Additionally, the Preconstruction Project Schedule shall indicate any parallel or near-critical sequences of activities. The Preconstruction Project Schedule shall indicate the total time for which any single Preconstruction activity or group of Preconstruct ion activities may be delayed without delaying the completion of the Preconstruction beyond the duration of time as stipulated in the NTPP. This total time shall be referred to as "Float" when referring to a single activity and "Total Float" when referring to a group of activities. The Preconstruct ion Phase Project Schedule may be adjusted pursuant to Section 2A.F. 2.4 Construction Services. Construction Manager shall commence the Construction on the date as established in the NTPC and, unless otherwise modified pursuant to any Change Order, shall conclude within the time stipulated by such NTPC and conclude on the date stipulated in such NTPC. Construction Manager shall not commence Construction Services until the issuance of the NTPC by Owner. The Construction Manager shall provide the following Construction Phase Services: A. Construction of Project. Construction Manager shall work from the beginning of planning through the Substantial Completion of the Project in accordance with the terms this Agreement to manage the construction of the Project. The construction management services provided by Construction Manager to construct the Project shall include without limitation (1) all services necessary and commensurate with established construction standards, and (2) all services described in the RFP and the Proposal except those services specifically described as Preconstruction Services. B. Accountability for Work. It is the intention of the parties hereto that Construction Manager is held accountable for its Work, including but not limited to; (i) coordinating the Work with the physical surveys prepared by others, (ii) compliance with the designs and construction documents prepared by Architect, (iii) compliance with the designs or construction documents prepared by others where such Work is part of Project, and (iv) compliance with Shop Drawings, whether or not such products, systems or equipment covered by such Shop Drawings are purchased by Construction Manager or its contracted agents, or purchased directly by Owner for installation or incorporation into the Project by Construction Manager. 10

14 C. Quality. Constmction Manager shall be responsible for the quality of the Work and shall promptly correct constmction defects without additional compensation. of the Work by Owner shall not relieve Constmction Manager of the responsibility subsequent correction of any constmction defects. D. Project Budget. Constmction Manager shall recommend appropriate alternates in the constmction documents so that any final bid or negotiated proposal will be within Owner's Project Budget. In the event the anticipated total Project Cost exceeds Owner's Project Budget, Constmction Manager shall suggest modifications to the constmction documents to achieve a total Project Cost that does not exceed Owner's Project Budget. Constmction Manager shall constmct the Project so that the Project can be built for a cost not to exceed the GMP established pursuant to Section 3.2.A. Any modification of the constmction documents after the GMP is established that are required as a result of the fault of Constmction Manager or are required at Constmction Manager's request, shall be at the cost and expense of Constmction Manager up to the total of the GMP. If the total cost of the Work exceeds the GMP, the responsibility for the cost and expense will be the obligation of the Constmction Manager. E. Project Schedule. Constmction Manager shall be responsible for the preparation of a Project Schedule which shows a breakdown of all tasks to be performed, and relationship in achieving the completion of each phase of Work, subject to review of Owner and Architect and approval or rejection by Owner. The Project Schedule shall include a constmction commencement date and Project Substantial Completion Date, which dates shall accommodate known or reasonably anticipated geographic, atmospheric and weather conditions. The Schedule shall serve as the framework for the subsequent development of all detailed The Project Schedule shall be used to verify Constmction Manager's perfolmance in relationship to payments claimed and to allow Owner's Representative to monitor Construction ",UU,,,"vL S efforts. All construction Work is anticipated to be completed within the timeframes established in Exhibit D hereto. The updated Project Schedule shall include all phases of procurement, approval of shop drawings, Change Orders in progress, schedules for Change Orders, and performance testing requirements. The Project Schedule may be adjusted pursuant to Section F. Adherence to Project Schedule. The development and equipping of the Project shall be undertaken and completed in accordance with the Project Schedule. The Construction Services portion of the Project Schedule, once established, may be amended, revised and supplemented from time to time by and in the reasonable good faith discretion of Construction Manager and Architect, which revision shall be effective upon receipt by Owner of a written notice of revision; provided, however, that absent an event of Force Majeure or a revision to the Project Schedule authorized by the execution of a Change Order, or adjustments in the Project Schedule in the manner provided for in this Agreement, no revision to the Project Schedule or the Project Substantial Completion Date shall be effective without the prior written approval of Owner. G. RESERVED. II

15 H. Project Management Infornmtion System. Construction Manager shall implement and shall utilize throughout the life of this Agreement all subsystems of a Project Management InfOlmation System (hereinafter referred to as "PMIS"). The reports, documents, and data to be provided through PMIS shall represent an accurate assessment of the current status of the Project and of the Work remaining to be accomplished and shall satisfy the data as required by FT A guidelines and requirements. The PM IS shall provide a sound basis for identifying variances and problems and for making management decisions and identify from the specifications, including substitutions and eliminations. It shall be prepared and furnished to Owner and the Architect monthly and shall accompany each invoice submitted pursuant to Section 3.4. If requested by Owner, Construction Manager shall conduct a comprehensive workshop in Manatee County, Florida, for participants designated by Owner and such additional seminars as are required to provide instruction. The workshop and the seminars shall facilitate each participants' and Owner's Representatives' use and understanding of PMIS. PMIS shall be described in terms of the following major subsystems: (1) Narrative Reporting. Construction Manager shall prepare written reports as described hereunder. All such reports shall be in 8-112" x 11" or other convenient format. Copies shall be maintained at the Project Site and transmitted to Owner and the Architect. A bound copy of the complete narrative report shall be submitted to Owner at the conclusion of the Project. The narrative reporting subsystem shall include the following reports: (a) (b) (c) (d) (e) A monthly executive summary which provides an overview of current issues and pending decisions, future developments and expected achievements, and any problems or delays, including code violations found by any permitting authorities. A monthly cost narrative describing the current construction cost estimate and status of the Project expenditures. A monthly scheduling narrative summarizing the current status of the overall Project Schedule. This report shall include an analysis of the various Project sub-schedules, a description of the critical path, and other analyses as necessary to compare planned performance with actual performance. A monthly accounting narrative describing the current cost and payment status of the Project. This report shall relate current encumbrances and expenditures to the budget allocations. A monthly construction progress report during the construction phase summarizing the Work of the various Subcontractors. This report shall include information such as general conditions, longlead supplies, current deliveries, safety programs, permits, construction problems and recommendations, and plans for the succeeding month. 12

16 (f) A daily construction diary during the construction phase describing events and conditions on the Project Site. (2) Schedule Control. The Project Schedule shall be updated monthly throughout the Project, subject to the requirements of Section 2.4.F. In a manner consistent with the construction schedule, Construction Manager shall prepare and submit to the Architect a schedule, in quadruplicate, graphically depicting the activities contemplated to occur as a necessary incident to performance of the Work required to complete the Project, showing the sequence in which Construction Manager proposes for each such activity to occur and duration (dates of commencement and completion, respectively) of each such activity. Construction Manager shall, at such earlier intervals as circumstances may require, update andlor revise the Project Schedule to show the actual progress of the Work performed and the occurrence of all events which have affected the progress of performance of the Work already performed or will affect the progress of the performance or the Work yet to be performed in contrast with the planned progress of performance of such Work, as depicted on the original or revised Project Schedule last submitted prior to submittal of each such monthly update and revision. Each such update andlor revision to the Project Schedule shall be submitted to Owner and Architect in duplicate. Construction Manager shall prepare and incorporate into the schedule data base, at the required intervals, the following schedules: (a) Construction Manager shall jointly develop with the Architect and Owner a detailed plan, inclusive of punch lists, final inspections, maintenance training, and turn-over procedures, to be used for ensuring accomplishment of a smooth and phased transition from construction to Owner occupancy. The occupancy schedule shall be produced and updated monthly from its inception through final Owner occupancy. (3) Cost Control. The operation of this subsystem shall provide sufficient timely data and detail to permit the Construction Team to control and adjust the Project requirements, needs, materials, equipment and systems by building and site elements so that construction will be completed at a cost which, together with all other Project Costs, will not exceed the GMP. (4) Project Accounting. The operation of this subsystem shall enable the Construction Team to effectively monitor and audit the Construction Manager's expenditure of funds paid by the Owner to the Construction Manager under this Agreement, except for those funds paid to the Construction Manager as part of the CM Fee. (a) The Project accounting subsystem shall be designed, arranged. and provided to Owner in such manner as will effectively and easily communicate all information regarding Construction Manager's 13

17 handling of the Project funds. Such Project Accounting subsystem information shall including the budget, estimates, base commitments, amounts of awarded contracts or obligated amounts, amounts invoiced, amounts paid, amounts remaining to be paid, cash flow, Change Orders, proposed and committed expenditures from the Project Contingency fund, and any other aspects of financial data as may be requested and required by the Owner to verify and audit Construction Manager's; (i) financial obligations relating to Project, (ii) the management of funds paid by Owner to Constmction Manager, and, (iii) the expenditure of funds by Constmction Manager to Subcontractors or vendors. (b) (c) Each Subcontractor or vendor with whom Construction Manager has contracted, and each line item amount as shown on the Schedule of Values for each of these Subcontracts or vendors, shall be integrated into the Project Accounting system. In addition to any other foltilat in which the Project Accounting subsystem information which may be submitted, Constmction Manager shall also submit the Project Accounting information arranged and grouped so as to describe the obligations, invoices, and payments, for each of the Subcontracts or vendors with whom the Constmction Manager has contracted, as well as for each line item amount shown on the Schedule of Values for each of the Subcontracts or vendors listed. I. Interfacing. (1) Constmction Manager shall take such measures as are necessary to ensure proper constmction and delivery of the Project, including but not limited to providing that all procurement of long-lead items, the separate construction Subcontractors, and the general conditions items are performed without duplication or overlap to maintain completion of all Work on schedule. (2) Without assuming any design responsibilities of the Architect, Constmction Manager shall include in the reports required under this Section comments on overlap with any other separate subcontracts, omissions, lack of correlation between drawings, and any other deficiencies noted, in order that the Architect may arrange for necessary corrections. J. Job Site Facilities. Constmction Manager shall arrange for all job site required and necessary to enable Construction Manager and Architect to perform their duties and to accommodate any representatives of Owner which Owner may choose to on the job, the description of which shall be finalized prior to the establishment of 14

18 K. Weather Protection. Construction Manager shall provide temporary protection in order to assure orderly progress of the Work in periods when extreme weather conditions are likely to be experienced. Construction Manager shall also be responsible for providing weather protection for Work in progress and for materials stored on Project Site. A contingency plan shall be prepared upon request of Owner for weather conditions that may affect the construction. L. Performance Bond and Labor and Material Payment Bond. After the execution of an addendum to this Agreement for the acceptance of the GMP, and prior to the of a NTPC, Construction Manager shall obtain, for the benefit of and directed to Owner, a labor and material Payment and Performance Bond satisfying the requirements of Section Florida Statutes, covering the faithful performance by Construction Manager of its obligations under this Agreement, including but not limited to the construction of the Project on the Project Site and the payment of all obligations arising thereunder, including all payments to Subcontractors, laborers, and materialmen. The surety selected by Construction Manager to provide the Payment and Perfomlance Bond shall be approved by Owner prior to the issuance of such Bond, which approval shall not be unreasonably withheld or delayed provided that the surety bond is underwritten by a certified company as listed by the Department of Treasury at M. Construction Phase; Building Permit; Code Inspection. (I) Building Permit. Owner and Architect shall provide such information to any Permitting Authority as is necessary to obtain approval from the Permitting Authority to commence construction prior to beginning construction. Construction Manager shall pull any required building permit, and shall be responsible for delivering and posting the building permit at the Project Site prior to the commencement of construction. The cost of the building permit shall be a Project Cost. Owner and Architect shall fully cooperate with Construction Manager when and where necessary. (2) Code Inspections. The Project requires detailed code compliance inspection during construction in disciplines determined by any Permitting Authority. These disciplines normally include, but are not necessarily limited to, structural, mechanical, electrical, plumbing and general building. Construction Manager shall notify the appropriate inspector(s) and the Architect's representative as appropriate, no less than 24 hours in advance, that the Work is ready for inspection and before the Work is covered up. All inspections shall be made for conformance with the applicable ordinances and building codes. Costs for all re-inspections of Work found defective and subsequently repaired shall not be included as Project Costs and shall be borne by Construction Manager or as provided in the contract between Construction Manager and Subcontractor. IS

19 (3) Construction Manager's Personnel. Construction Manager shall maintain sufficient off-site support Personnel and competent full-time Personnel at the Project Site authorized to act on behalf of Construction Manager to coordinate, inspect, and provide general direction of the Work and progress of the Subcontractors. Exhibit A is anticipated to be updated at the time the GMP is established. Construction Manager shall not change any of those persons named in Exhibit A unless mutually agreed to by Owner and Construction Manager. In such case, Owner shall have the right to approve the qualifications of the replacement Personnel. (4) Lines of Authority. To provide general direction of the Work, Construction Manager shall establish and maintain lines of authority for its Personnel and shall provide this information to Owner and all other affected parties, such as the code inspectors of any Permitting Authority, the Subcontractors, and the Architect. N. Quality Control. Construction Manager shall develop and maintain a acceptable to Owner and Construction Inspector, to assure quality control of the Construction Manager shall be responsible for and supervise the Work of all Subcontractors, providing instructions to each when their Work does not conform to the of the Project Plans and Specifications, and Construction Manager shall continue to the Work of each Subcontractor to ensure that corrections are made in a timely manner so as to not affect the efficient progress of the Work. Should a disagreement occur Construction Manager and the Construction Inspector over the acceptability of the at its reasonable discretion and in addition to any other remedies provided herein, the right to determine the acceptability, provided that such determination is consistent plans and specifications for facilities of this type and generally accepted industry workmanship in the State of Florida. O. Reserved. P. Job Site Requirements. (l) Construction Manager shall provide each of the following activities as a part of its service hereunder: (a) (b) (c) Maintain a log of daily activities, including manpower records, weather, delays, major decisions, etc. Maintain a roster of companies on the Project with names and telephone numbers of key personnel. Establish and enforce job rules governing parking, clean-up, use of facilities, and worker discipline. I' 16

20 (d) (e) (f) (g) (h) Provide labor relations management and equal opportunity employment for a harmonious, productive Project. Provide and administer a safety program for the Project to meet OSHA requirements. Monitor for Subcontractor compliance without rejieving them of responsibilities to perform Work in accordance with best acceptable practice. Provide quality control program as developed under Section 2.4.N above. Provide miscellaneous office supplies that support the construction efforts which are consumed by its own forces. Provide for travel to and from its home office to the Project Site and to those other places within Manatee County as required by the Project. (2) Construction Manager shall provide personnel and equipment, or shall arrange for separate Subcontractors to provide each of the following as a Project Cost: (a) (b) Services of independent testing laboratories, and the necessary testing of materials to ensure conformance to contract requirements. Printing and distribution of all required bidding documents and shop drawings, including the sets required by Permitting Authority inspectors. Q. Job Site Administration. Construction Manager shall provide as part of its job site administrative functions during construction to assure proper documentation, but not limited to the following: (1) Job Meetings. Hold weekly progress and coordination meetings to provide for a timely completed Project. Implement procedures and assure timely submittals, expedite processing approvals and retum of shop drawings, samples, etc. Coordinate and expedite critical ordering and delivery of materials, Work sequences, inspection and testing, labor allocation, etc. Review and implement revisions to the Project Schedule. Monitor and promote safety requirements. In addition, a regular monthly Project status meeting will be held between the Architect, Owner's Representative and Construction Manager. Construction Manager shall use the job site meetings as a tool for (i) pre-planning of Work and enforcing schedules and for establishing procedures, responsibilities, and identification of authority for all to clearly understand; (ii) identifying party or parties responsible for follow up on any problems, delay items or questions, and 17

21 (iii) recording a course for solution. Construction Manager shall review each pending item at each subsequent meeting until resolution is achieved, and shall require all present to make known any problems or delaying event known to those present for appropriate attention and resolution. (2) Shop Drawing and Submittals. Provide staff to check shop drawings, product data and samples, and to implement procedures for submittal and transmittal to the Architect of such items. The Architect will review all submittals for conformance with the design concept for the Project. Any review or approval by Owner or Architect shall not relieve Construction Manager of the obligation to construct the Project in accordance with the Project Plans and Specifications unless, upon request of Construction Manager, the Architect acknowledges and confirms in writing that the shop drawings or submittals represent an acceptable amendment or modification to the Project Plans and Specifications. (3) Material and Equipment Expediting. Provide staff to closely monitor material and equipment deliveries, critically important checking and follow-up procedures on supplier commitments of all Subcontractors, and maintain a material and equipment expediting log. (4) Payments to Subcontractors. Develop and implement a procedure for review, processing, and payment of applications by Subcontractors for progress and final payments. (5) Document Interpretation. Refer to the Architect all questions for interpretation of the documents prepared by the Architect. (6) Reports and Project Site Documents. Record the progress of the Project. Submit written progress reports to Owner and the Architect, including information on Subcontractors Work, and the percentage of completion. Keep a daily log available to Owner, the Architect, and Permitting Authority inspectors. (7) Subcontractors Progress. Prepare periodic punch lists for Subcontractors' Work, including unsatisfactory or incomplete items and schedules for their completion. (8) Pre-Substantial Completion Inspections. Construction Manager, in cooperation with the Architect, shall conduct pre-substantial Completion inspections. Construction Manager shall prepare pre-substantial Completion punch lists from which Construction Manager and Architect will develop completion schedules. Construction Manager shall ascertain when the Work or designated portions thereof are ready for Owner and Architect Substantial Completion inspection. Construction Manager shall provide a complete list of incomplete or unsatisfactory items (preliminary punch list) to Owner and Architect prior to the inspection. Owner and 18

22 Architect will add additional incomplete or unsatisfactory items to this list. Construction Manager shall prepare a punch list of items to be completed and a schedule for their completion indicating Completion Dates for review and approval by Owner and Architect ("Punch List Completion Date"). The Punch List Completion Date shall be scheduled to occur within a reasonable time following the Project Substantial Completion Date, but in no event later than sixty (60) days following the Substantial Completion Date. Construction Manager, Owner, and Architect will jointly decide which punch list items must be completed prior to the issuance of the certificate of Substantial Completion by the Architect. (9) Final Completion. Monitor the Subcontractors' performance on the Substantial Completion of the Project and provide notice to Owner and Architect that the Work is ready for final inspection. Secure and transmit to Owner, through the Architect, all required guarantees, affidavits, releases, bonds and waivers, manuals, record drawings and maintenance books, including a Substantial Completion form. (10) Start-Up. With Owner's personnel, direct the check-out of utilities, operations, systems, and equipment for readiness and assist in their initial start-up and testing by the Subcontractors. (11) Record Drawings. Construction Manager shall monitor the progress of its own forces or its Subcontractors on marked-up field prints so as to provide completed as-built drawings as required herein. (12) Administrative Records. Construction Manager shall maintain at the job site originals or copies or electronic access to copies of, on a current basis, files and records such as, but not limited to, the following: Contracts or Purchase Orders Shop Drawings Submittal! Approval Logs Equipment PurchaselDelivery Logs Contract Drawings and Specifications with Addenda Warranties and Guarantees Cost Accounting Records Labor Costs Material Costs Equipment Costs Cost Proposal Request and Supporting Backup Payment Request Records Meeting Minutes Cost Estimates Lab Test Reports Insurance Certificates and Bonds Contract Changes Purchase Orders 19

23 Material Purchase Delivery Logs Technical Standards Design Handbooks "As-Built" Marked Prints Operating and Maintenance Instruction Daily Progress Reports Transmittal Records Inspection Reports Bid/Award Information Bid Analysis and Negotiations Punch Lists PMIS Schedule and Updates Suspense (Tickler) Files of Outstanding Requirements Correspondence Files The Project records shall be available at all reasonable times to Owner and Architect for reference, review, or reproduction. A records retention schedule and document distribution protocol will be developed. R. Substantial Completion; Liquidated Damages Acceptance. (1) Project Substantial Completion Date. Construction Manager agrees to achieve Substantial Completion of the Project within the Contract Time to be established in an addendum to this Agreement on or prior to the Project Substantial Completion Date to be established in the NTPC. (2) Liquidated Damages. Time is of the essence in this Contract. As of the date of this Contract, the damages that will be suffered by Owner in the event of Construction Manager's failure to timely complete the Project are impossible to determine. In lieu thereof, it is agreed that if Construction Manager fails to achieve Substantial Completion of the Project within (TBD) calendar days of issuance of the NTPC (accounting, however, for any extensions of time granted pursuant to approved Change Orders), Construction Manager shall pay to Owner, as liquidated damages (and not as a penalty), the sum of $ per calendar day for each day beyond the established substantial completion date. Owner shall have the option of withholding said liquidated damages from any Pay Application(s) thereafter submitted by Construction Manager. Alternatively, Construction Manager shall immediately pay said sums to Owner upon Owner's demand for same. (3) Completion of Construction. The Construction Commencement Date, the duration of Construction, the Substantial Completion Date, and the date of Final Completion of the Project will be established in an addendum to this Agreement and as stipulated in the NTPC. The Construction Manager warranty set forth in Section 2.4.S shall commence on the Date the Construction Manager is determined to have achieved Substantial 20

24 Completion as evidenced by a Certificate of Substantial Completion to be issued by the Architect. (4) Owner Acceptance. Constmction Manager shall provide services during the design and constmction phases to provide a smooth, successful and harmonious arrangement for Owner's use of the Project during the constmction and occupancy of the Project. Constmction Manager shall provide consultation and Project management to facilitate Owner's use of the Project and shall provide transitional services to get the Work, as completed by the Subcontractors, "on line" and shall obtain a Celtificate of Occupancy which will allow beneficial use of the facility. Owner shall not take beneficial use of any component of the Project before Substantial Completion. Constmction Manager shall catalog operational and maintenance requirements of the equipment to be operated by maintenance personnel and convey these to Owner in such a manner as to promote their usability. Constmction Manager shall provide operations training in equipment use for operators. Constmction Manager shall secure guarantees and warranties of Subcontractors, equipment suppliers and materialmen, and assemble and deliver same to Owner in a maimer that will facilitate their maximum enforcement and assure their meaningful implementation. (5) As-Built Drawings. Constmction Manager shall continuously review asbuilt drawings and mark up progress prints to provide as much accuracy as possible. Prior to, and as a requirement for authorizing its final payment to Constmction Manager due hereunder, Constmction Manager shall provide to Owner an original set of marked-up, as-built Project Plans and Specifications and an electronic copy of those Project Plans and Specifications, provided in an agreed upon format, showing the location and dimensions or other variations of the Project as constmcted, which documents shall be certified as being correct by Constmction Manager and the Architect. S. Constmction Manager's Warranty. Constmction Manager warrants that all Work, labor and materials will conform to the Project Plans and Specifications and that all Work shall performed in a competent and workmanlike manner. Constmction Manager further warrants that all materials and equipment shall be new, except where otherwise approved by Ow"ner, of good quality and free from defects in material and workmanship. Work, materials, or equipment not conforming to these requirements shall be considered defective. With respect to the same Work, Constmction Manager further agrees to correct or replace as necessary all Wark found by Owner to be defective in material and workmanship or not in confonnance with the Project Plans and Specifications for a period of two (2) years from the Project Substantial Completion Date or such longer period as may be agreed at the time the GMP is established. As part of its Preconstruction Services, Construction Manager will evaluate the feasibility and cost impacts of longer warranty periods and make recommendations to Owner. I' 21

25 ( I) Construction Manager shall use its best efforts and due diligence to ensure that during the warranty period, those entities or individuals who have provided direct warranties to Owner as required by the contract documents perform all required warranty Work in a timely manner and at the sole cost and expense of such warranty providers. During the warranty period, in the absence of such expenses and costs being paid by such warranty providers, all actual costs of litigation, including reasonable attorney fees in any litigation between Construction Manager and Subcontractors relating to the warranties and all out of pocket costs incurred by Construction Manager in providing the warranty Work contemplated by this paragraph, shall be paid by Owner provided that the total of all Project Costs (inclusive of such costs of litigation) paid by Owner are less than the GMP. The direct cost of any warranty Work, and enforcement of any warranties, resulting in such total Project Costs exceeding the GMP shall be paid by Construction Manager. (2) Construction Manager shall secure guarantees and warranties of Subcontractors, equipment suppliers and materialmen, and assemble and deliver same to Owner in a manner that will facilitate their maximum enforcement and assure their meaningful implementation. Construction Manager shall collect and deliver to Owner any specific written guanmties or warranties given by others as required by subcontracts. (3) Construction Manager shall conduct, jointly with Owner and the Architect, warranty inspections six (6) months, twelve (12) months, eighteen (18) months, and twenty-three (23) months after the Project Substantial Completion Date. (4) Owner, Owner's Representative, governmental agencies with jurisdictional interests will have access to the Work at reasonable time for their observation, inspecting and testing (Construction Manager shall give Architect timely notice of readiness of the Work for all required approvals and shall assume full responsibility, including costs, in obtaining required tests, inspections, and approval certifications and/or acceptance, unless otherwise stated by Owner). (5) If the Work is defective, or Construction Manager fails to supply sufficient skilled workers, or suitable materials or equipment, or fails to furnish or perform the Work in such a way that the completed Work will conform to this Agreement, Owner may order Construction Manager to stop the Work, or any portion thereof and terminate payments to Construction Manager until the cause for such order has been eliminated. Construction Manager shall bear all direct, indirect and consequential costs for satisfactory reconstruction or removal and replacement with non-defective Work, including, but not limited to fees and charges of engineers, architects, attorneys and other professionals and any additional expenses experienced by Owner due to delays to other Construction Managers

26 performing additional Work. Construction Manager shall further bear the responsibility for maintaining schedule and shall not be entitled to an extension of the Contract time and the recovery of delay damages due to correcting or removing defective Work. (6) If Construction Manager fails within seven (7) days after written notice to correct defective Work, or fails to perform the Work in accordance with the Contract Documents, or fails to comply with any other provision of the Contract Documents, Owner may correct and remedy any such deficiency to the extent necessary to complete corrective and remedial action. Owner may exclude Construction Manager from all or part of the site, take possession of all or part of the Work, Construction Manager's tools, construction equipment and machinery at the site or for which Owner has paid Construction Manager but which are stored elsewhere. All direct and indirect costs of Owner in exercising such rights and remedies will be charged against Construction Manager in an amount approved as to reasonableness by Architect and a change order will be issued incorporating the necessary revisions. (7) If within two (2) years after the date of Substantial Completion or such longer period of time as may be prescribed by laws or regulations or by the terms of any applicable special guarantee required by this Agreement, any Work is found to be defective, Construction Manager shall promptly, without cost to Owner and in accordance with Owner's written instructions, either correct such defective Work or if it has been rejected by Owner, remove it from the site and replace it with non-defective Work. If Construction Manager does not promptly comply with the terms of such instruction, Owner may have the defective Work corrected/removed and all direct, indirect and consequential costs of such removal and replacement will be paid by Construction Manager. T. Lien Free Construction. Construction Manager recognizes the Project is one public construction which is not subject to construction liens under Florida Law. Construction Manager shall timely pay its subcontractors in accordance with its contractual obligations. Construction Manager shall include a similar provision in its subcontracts to notify its Subcontractors that the Project is not subject to construction liens and of the Subcontractor's to pay its sub-subcontractors. u. Quality of Work, Labor and Materials. If at any time the materials and appliances to be used appear to Owner as insufficient or improper for securing the quality of Work required or the required rate of progress, Owner may order Construction Manager to efficiency or to improve the character of its Work, and Construction Manager shall, AI"lTr.t n1 to such an order. The failure of Owner to demand any increase of such efficiency or improvement shall not release Construction Manager from its obligation to secure the quality of Work or the rate of progress necessary to complete the Work within the limits imposed by this Owner may require Construction Manager to remove from the Work such employees as Owner deems incompetent, careless, insubordinate or otherwise objectionable, or 23

27 continued employment on the Work is deemed to be contrary to Owner's interest. Construction Manager shall provide good quality workmanship and shall promptly conect defects without additional compensation. Acceptance of the Work by Owner shall Construction Manager of the responsibility for subsequent conection of any defects. V. Materials. All materials and equipment shall be of good quality and new, as otherwise provided in this Agreement. If required by Architect, Construction Manager satisfactory evidence (including reports of required tests) as to the kind and quality materials and equipment. All materials and equipment shall be applied, installed, connected, used, cleaned and conditioned in accordance with the instruction of the applicable supplier except as otherwise provided in this Agreement. W. Insurance, Overhead and Utilities. Unless otherwise specified, Manager shall furnish and assume full responsibility for all bonds, insurance, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities and all other facilities and incidentals necessary for the furnishing, performance, testing, start-up and completion of the Work. X. Safety and Protection. Construction Manager shall comply with the Florida Department of Commerce Safety Regulations and any local safety regulations. Construction Manager shall be responsible for initiating, maintaining and supervising all safety "'-"',UH'VUJ and programs in connection with the Work. Construction Manager shall take all precautions for the safety of and shall provide the necessary protection to prevent injury or loss to: (1) All Personnel on the Work and other persons and organizations who may be affected thereby; (2) All the Work and materials and equipment to be incorporated therein, whether in storage on or off the Project Site; and (3) Other property at the Project Site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, utilities and underground facilities not designated for removal, relocation or replacement in the course of construction. Construction Manager shall comply with all applicable laws and regulations of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or and shall erect and maintain all necessary safeguards for such safety and protection. Construction Manager shall provide and maintain all passageways, guard fences, lights and other for the protection required by public authority or local conditions. Constmction >",Al,,,,;;",,. shall provide reasonable maintenance of traffic way for the public and preservation of Owner's business, taking into full consideration all local conditions. Construction Manager's duties and responsibilities for safety and protection with regard to the Work shall continue until as all the Work is completed. 24

28 Y. Suitability of Project Site. Construction Manager has, by careful satisfied itself as to the nature and location of the Work and all other matters can in any way affect the Work, including, but not limited to details pertaining to as shown on the drawings. Such boring information is not guaranteed to be more than indication of the materials likely to be found adjacent to holes bored at the Project approximately at the locations indicated. Construction Manager has examined boring data, available, made its own interpretation of the subsurface conditions and other preliminary has based its Proposal on its own opinion of the conditions likely to be encountered. In no event shall an extension of time be considered for any known conditions that existed at the proposing, which Contractor should have accounted for nor shall Construction Manager compensation above the GMP for completion of the Project. No verbal agreement or with any officer, agent or employee of Owner, before or after the execution of this shall affect or modify any of the terms or obligations herein contained. Project Specification Errors. If Construction Manager, in the course of the that the Project Plans and Specifications cannot be followed, Construction Manager immediately inform Owner in writing, and Owner shall promptly check the accuracy of information. Any Work done after such discovery, until any necessary changes are will be done at Construction Manager's risk. AA. Remediation of Contamination: Because the presence or extent of any!hhlih,"! is not known, any remediation Work which Construction Manager agrees to perform after establishment of the GMP shall be done pursuant to a Change Order or consistent with the following: (1) The dates of Substantial Completion shall be equitably adjusted based on delays, if any, incurred in connection with remediation efforts. (2) Construction Manager, and any Subcontractors which have mobilized on the Project Site, shall be paid for demonstrated costs of overhead operations at the Project Site during any period of delay in excess of seven (7) days, except to the extent that Work proceeds concurrently with remediation. The categories of costs to be reimbursed are limited to those reasonably incurred at the jobsite during the delay period (such as trailers or offices, telephones, faxes, and the like); equipment dedicated to the Project and located at the Project Site; salaries and associated costs of Personnel dedicated to the Project to the extent that they do not perform Work on other projects; and other jobsite costs that are reasonable and which are incurred during the delay period. Subcontractors and suppliers which have not mobilized are limited to the costs set forth in subparagraph (3). (3) Construction Manager and any Subcontractor or supplier on the Project who is eligible for compensation shall be paid any demonstrated costs of escalation in materials or labor, and reasonable costs of off-site storage of materials identified to the Project, arising as a result of any delay in excess 11 25

29 of seven (7) days. Such Construction Manager, Subcontractors and suppliers are obligated to take all reasonable steps to mitigate escalation costs, such as through early purchase of materials. (4) Construction Manager, for itself and all Subcontractors and suppliers on the Project, hereby agrees that the extension of time for delays under Section subparagraph (1), and payment of the costs identified in subparagraph (2) andlor subparagraph (3), are the sole remedies for delays described in this Section, and waives all claims and demands for extended home office overhead (including, but not limited to, "Eichleay" claims), lost profit or lost opportunities, and any special, indirect, or consequential damages arising as a result of delays described in this Section. The GMP shall be adjusted to reflect payment of such costs, subject to the provision of Section 3.2. (5) Construction Manager and any Subcontractor or supplier seeking additional costs under this Section shall promptly submit estimates or any costs as requested by Owner, and detailed back-up for all costs when payment is sought or whenever reasonably requested by Owner. All costs are auditable, at Owner's discretion. Bid, estimate and pricing information reasonably related to any request for additional compensation will be provided promptly upon request. (6) Construction Manager shall include provisions III its subcontracts and purchase orders consistent with this Section. If contamination becomes known during the preconstruction phase, it will be addressed in ARTICLE III COMPENSATION 3.1 Compensation for Preconstruction Services. Preconstruction services shall be compensated monthly based upon percentage completion of Construction Manager's required the Preconstruction Services provided pursuant to Section 2.3. Payments for Preconstruction Services shall constitute sole and full compensation for all such inclusive of all costs and expenses, including, but not limited to any item listed in Exhibit BU. All applications for payment of preconstruction services shall be submitted on an Owner supplied application for payment form along with a current Schedule of Values. 3.2 Compensation for Construction Services; GMP. A. Establishment of GMP. Within forty-five (45) days of Owner's written request to Construction Manager and receipt of 100% Construction 26

30 Documents, Construction Manager shall establish and submit in writing to Owner a Guaranteed Maximum Price (GMP), which Owner may accept, accept with negotiated changes, or reject. At the request of Construction Manager and with the written approval of Owner to the Construction Manager, this forty-five (45) day period may be extended. In the event that Owner and Construction Manager reach an agreed GMP, it shall be established and memorialized pursuant to an addendum supplementing this Agreement substantially in the form attached hereto as Exhibit "D"- Fonn of Addendum. Such Addendum shall, among other things, stipulate the cost of the Work, including the cost of General Conditions Expenses proposed by the Construction Manager, the Project Contingency, and the amount of CM Fee to be paid the Construction Manager. In the event that the Owner elects to not accept the GMP, the Owner may tenninate this Agreement pursuant to Article 15, and Construction Manager shall be entitled to no compensation other than the amount to be paid pursuant to Section 3.1. Such Guaranteed Maximum Price shall be subject to modification for changes in the Project only as provided in Article V or as otherwise specifically provided for in this Agreement. However, the actual price paid for the Work by Owner shall either be: (1) the actual Project Cost or (2) the GMP, whichever is the lesser when the Work is finally complete. Owner or his authorized agent shall be pennitted to examine an documents relating to the development of the cost of the Work, including general conditions expenses, reimbursable expenses and the GMP. When requested by Owner or its authorized agent, The Construction Manager shall provide copies of any or all such documents. B. Effect of GMP. The GMP shall constitute the guaranteed maximum price to Construction Manager for all services rendered, and all costs and expenses incurred, with the construction of the Project, such that Construction Manager shall a Construction Manager at risk, and shall bear all risk, and be responsible for all costs, the GMP. Once established in the GMP Addendum, the GMP may be increased to: (i) a subsequent addendum to this Agreement, or (ii) a Change Order approved to Article V. C. All Matters to be Included in GMP. The Project Schedule, all anticipated Prczject amount of Construction Manager's Compensation, and manner of disbursing compensat.ion to Construction Manager during the construction of the Project, the identity of Manager's key staff during construction of the Project, a comprehensive review of required pursuant to Alticle X, and any other items that are material to the cost of the Project or orderly and timely construction, shall be addressed as part of the establishment of GMP and shall be addressed in the GMP Supplement. The GMP will include those applicable taxes the Project Cost which are legally enacted at the time the GMP is established. Should any applicable taxes be enacted after the GMP, then the GMP shall be increased by the same amount D. Taxes Included in GMP. The GMP will include all applicable taxes that are enacted and in effect at the time the GMP is established. Should any change to applicable taxes be enacted and become effective after the date of the addendum incorporating the GMP, then the GMP shall be increased or decreased by an amount equal to the amount the 27

31 taxes are added to or removed from the GMP. The Construction Manager shall provide evidence in support of any reduction or increase in taxes affecting the GMP. Project Costs. in Exhibit "B". The categories of Project Costs are more specifically F. Discounts. Construction Manager shall advise Owner of opportunities to obtain discounts, rebates and refunds for prompt payment. Any and all such discounts, rebates or refunds obtained shall accrue solely to the benefit of Owner. To the extent that any discounts, rebates or refunds are achieved by the actions of either Owner or Construction Manager, the GMP shall be reduced by an amount equal one hundred percent (100%) of such discounts, rebates or refunds. Cash discounts obtained on payments made by the Construction Manager shall accrue to the Owner if (1) for making the payment, the Construction Manager included them an Application For Payment and received payment from the Owner, or (2) Owner has deposited funds with Construction Manager with which to make payments; otherwise, cash discounts shall accrue to the Construction Manager. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner and the Construction Manager shall make provisions so that they can be obtained. G. Project Savings. Construction Manager shall use its best efforts to construct the Project in a timely and cost efficient manner in order to achieve savings in the Project Costs incurred. All amounts of such savings resulting from actual Project Costs savings, as described above, totaling less than the GMP shall be and accrue to the benefit of Owner. 3.3 Schedule of Compensation. All payments for services and material under this shall be made in accordance with the following provisions. A. Periodic Payments for Services. Construction Manager shall be entitled to payment for Preconstruction Services rendered pursuant to Section 2.3 and paid in accordance with Section 3.1. Construction Manager shall be entitled to receive payment for Services rendered pursuant to Section 2.4 in periodic payments established and authorized in the GMP Supplement, which shall reflect a fair apportionment of cost and schedule of services furnished prior to payment, subject to the provisions of this Section 3.3. B. Adjustment to Payment Schedule. If at any time following the commencement date it can be reasonably concluded that the total duration for the phase of the Project will exceed the number of months set forth in the Project Schedule, the remaining sums due pursuant to subsection A shall be divided over the revised duration the constmction phase. In the event that the Project Substantial Completion Date to expiration of the construction phase as set forth in the Project Schedule, the entire balance of the Construction Manager's fee shall be due and payable to Construction completion and acceptance of the Punch List.. The last payment shall not be due prior to date of Acceptance of the Project by Owner, or the date on which all of the Project is Substantially Complete even though final approvals of governmental authorities may have been withheld reasons not related to the Project; provided, however, one hundred and fifty percent (1 the value of any uncompleted Punch List Items, the value of each item detemlined by 28

32 the Architect, may be withheld until such Punch List Items are accepted per Article 3.3 D, Final C. Payment for Materials and Equipment. In addition to the periodic authorized hereunder, payments may be made for material and equipment not incorporated in the Work but delivered and suitably stored at the Project Site, or another subject to prior approval and acceptance by Owner on each occasion. D. Final Payment. Final payment constituting the unpaid balance of the GMP, if shall be due and payable in accordance with Florida Statute after the entire is completed, the final inspection made, approved as-builts received and the Project is ['J'p ntp,1 by Owner, and the surety providing the Payment and Pelformance Bond consents to same. However, if there should remain Work to be completed, Construction Manager, Owner and Architect shall list those items prior to receiving final payment and Owner may retain a sum to one hundred and fifty percent (150%) of the established cost of completing any unfinished Work, provided that said unfinished items are listed separately along with estimated cost completing each item. Thereafter, Owner shall pay to Construction Manager, within thirty days of receipt of a complete and satisfactory application for payment, the amount retained from each incomplete item after each of said items is completed and Accepted. E. Credit toward GMP. All payments for Construction Services made hereunder shall be credited toward the payment of the GMP as Construction Manager's sole compensation for the construction of the Project. 3.4 Invoice and Payment. All payments for services and materials under this Agreement shall be invoiced and paid in accordance with the following provisions. A. Invoices. Construction Manager shall submit to Owner periodic invoices for payment, in a form acceptable to Owner's Representative, which shall include a SWOl11 statement certifying that, to the best of Construction Manager's knowledge, information and belief, the construction has progressed to the point indicated, the quality and the Work covered by the invoice is in accord with the Project Plans and Specifications, and Construction Manager is entitled to payment in the amount requested, along with the cost reports required pursuant to Article II, showing in detail all monies paid out, Project Costs accumulated, or Project Cost tncun-ed during the previous period. This data shall be attached to the invoice. B. Payment. In accordance with Florida Statute , the amount of the invoice deducting any required retainage shall be due and payable to Construction Manager twenty (20) business days after the invoice has been approved by Owner. On or before the end of such twenty (20) business day period, Owner's Representative shall advise Construction Manager any amount in dispute and payment for any undisputed amount shall be made in with Florida Statute Any disputes shall be handled in accordance with the of Article IX. All invoicing shall be addressed to the attention of: Manatee County Property Management Department, 1112 Manatee Avenue West, Suite 802, Bradenton, Florida

33 C. Additional Information; Processing of Invoices. Should an invoiced amount appear to exceed the Work effort believed to be completed, Owner may, prior to of the invoice for payment, require Construction Manager to submit satisfactory to support the invoice. All progress reports and invoices shall be mailed to the attention of Owner's Representative. Invoices not properly prepared (mathematical errors, billing not rchecting actual Work done, no signature, etc.) shall be returned to Construction correction. D. Architect's Certificate. Payment for Work completed shall be subject to a of the Architect approving the payment requested by Construction Manager and the amount thereof that has been properly incurred and is then due and payable to Construction Manager, and identifying with specificity any amount that has not been properly inctlitcd and that should not be paid. After approval by the Architect, such certificate of payment shall be presumptive evidence of Construction Manager's entitlement to the payment in said certificate. Warrants of Construction Manager Against Claims. Construction *.."._,..,_. warrunts that (1) upon payment of any retainage, materials and equipment covered by a partial payment request will pass to Owner either by incorporation in construction or upon payment by Construction Manager, whichever occurs first; (2) Work, materials and covered by previous partial payment requests shall be free and clear of liens, claims, or encumbrances, hereinafter referred to as "liens"; and (3) no Work, materials or equipment covered by a partial payment request which has been acquired by Construction Manager or any other person performing Work at the Project Site, or furnishing materials or equipment for the Project, shall be subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by Construction Mar1ager or other person. F. All Compensation Included. Construction Manager's compensation, for the preconstruction phase and the construction phase, includes full payment for services set forth in this Agreement, including but not limited to overhead, profit, salaries or other compensation of Construction Manager's officers, partners and/or employees, general operating expenses incuited by Construction Manager and relating to this Project, including the cost of management, supervision and data processing staff, job office equipment and supplies, and other similar items as shown in Exhibit B, Part I, and necessary for Construction Manager to perform its services hereunder, specifically excluding any items described in Exhibit B, Parts II. Construction Manager's compensation for both the Preconstruction Services and the Construction Services is lump sum, and is not subject to the audit provisions of this Agreement. 30

34 ARTICLE IV SUBCONTRACTORS 4.1 Management of Subcontractors. Construction Manager shall solely control the low that A. A ward. Construction Manager shall award subcontracts to the qualified after Construction Manager and Owner have reviewed each proposal and are satisfied Subcontractor/supplier is qualified to perform the Work. Construction Manager shall available to each proposed Subcontractor, prior to the execution of the subcontract, copies contract documents to which the Subcontractor will be bound. Each Subcontractor shall make copies of such documents available to its sub-subcontractors. 4.4 Subcontracts. A. Subcontracts Generally. All subcontracts shall: (1) require each to be bound to Construction Manager to the same extent Construction Manager is bound to Owner by the terms of this Agreement, as those terms may apply to the portion of the Work performed by the Subcontractor, (2) provide for the assignment of the subcontracts from Construction Manager to Owner at the election of Owner, upon termination of Construction provide that Owner will be an additional indemnified patty of the subcontract, (4) Owner will be an additional insured on all insurance policies required to be provided Subcontractor, except workman's compensation, (5) assign all warranties directly to B. No Damages for Delay. Except when otherwise expressly agreed to by in writing, all subcontracts shall provide: "LIMITATION OF REMEDIES - NO DAMAGES FOR DELAY The Subcontractor's exclusive remedy for delays in the performance of the contract caused by events beyond its control, including delays claimed to be caused by Owner or Architect or attributable to Owner or Architect and including claims based on breach of contract or negligence, shall be an extension of its contract time and shall in no way involve any monetary claim." Each subcontract shall require that any claims by the Subcontractor for delay must be submitted to Construction Manager within the time and in the manner in which Construction rnust submit such claims to Owner, and that failure to comply with the conditions for and submitting claims shall result in the waiver of such claims. C. Subcontractual Relations. Construction Manager shall require each Subcontractor to assume all the obligations and responsibilities which Construction Manager owes Owner, under the agreement, by the parties to the extent of the Work to be performed by the Subcontractor. Said agreements shall be made in writing and shall preserve and protect the rights of Owner and Architect, with respect to the Work to be performed by the Subcontractor, so 31

35 that subcontracting thereof will not prejudice such rights. Where appropriate, Construction Manager shall require each Subcontractor to enter into similar agreements with its sub-s ubcontractor. D. Insurance; Acts & Omissions. Insurance requirements for Subcontractors shall no more stringent than those requirements imposed on Construction Manager by Owner. Construction Manager shall be responsible to Owner for the acts and omissions of its employees, agents, Subcontractors, their agents and employees, and all other persons performing any of the or supplying materials under a contract to Construction Manager. 4.5 Direct Materials Acquisition by Owner. Each Subcontractor shall be required to include Florida State and other applicable sales taxes for all material, supplies, and equipment in its bid. Owner may, if not prohibited by law purchase directly various construction materials, and equipment that may be part of the subcontract. The methods shall be as detailed in 4.6 Relationship and Responsibilities. Except as specifically set forth herein with to direct materials acquisitions by Owner, nothing contained in this Agreement or in any contract document does or shall create any contractual relation between Owner or Architect and Subcontractor. Specifically, Construction Manager is not acting as an agent of Owner with 1""1J"'~1, to any Subcontractor. The utilization of any Subcontractor shall not relieve Construction Manager from any liability or responsibility to Owner, or obligate Owner to the payment of any compensation to the Subcontractor or additional compensation to Construction Manager. As provided in Section 2.4.0, Construction Manager shall be fully responsible to Owner for all acts and U'~'''U'JUJ of the Subcontractors, sub-subcontractors, suppliers and other persons and performing or furnishing any of the Work under a direct or indirect Contract with Manager just as Construction Manager is responsible for Construction Manager's own acts and omissions. 4.7 Payments to Subcontractors; l\tfonthly Statements. Construction Manager responsible for paying all Subcontractors from the payments made by Owner to Manager pursuant to Article III, subject to the following provisions: A Retainage. Construction Manager shall withhold ten percent (10%) on each subcontract until the subcontract is fifty percent (50%) complete, except (i) to the approval of Owner's Representative, certain suppliers and Subcontractors may be paid the amount due when such payment is generally the practice of the industry, and (ii) a subcontract is fifty percent (50%) complete the retainage may be reduced, if requested by Construction Manager and approved by Owner's Representative, but to an amount not less than five (5%). Alternatively, at the point when retainage is equal to five percent (5%) of the GMP, Owner may elect to limit retainage deductions to that necessary to maintain a retainage level percent (5%) of the GMP. B. Certificate of Payment. Owner shall require the Architect (i) to review all payment based on the Architect's observations, inspection and evaluation of Construction Manager's request for payment and consistent with the requirements of this the Architect will within four (4) calendar days after receipt of Construction request for payment, and (ii) to execute a certificate of payment approving the 32

36 requested by Construction Manager an certifying the amount thereof that has been incuned and is then due and payable to Construction Manager, and identifying with any amount that has not been properly incuned and that should not be paid. After by the Architect, such certificate of payment shall be presumptive evidence of Manager's entitlement to the payment described in said certificate. C. Payment. In accordance with Florida State Statute, Construction shah, no later than ten (10) days after receipt of payment from Owner, out of the amount paid to Construction Manager on account of such Subcontractor's Work, pay each to each Subcontractor the amount to which the Subcontractor is entitled in accordance with the terms Construction Manager's contract with such Subcontractor, less the applicable amount of required pursuant to Section 4.6.A. Construction Manager shall, by appropriate with each Subcontractor, require each Subcontractor to make payments to sub Subcontractors in a similar manner. After receipt of payment from Owner, if the need should to withhold payments to Subcontractors for any reason, as solely determined by Construction Manager, Construction Manager shall adjust subsequent pay requests and Project bookkeeping as required. D. Final Payment of Subcontractors. The final payment of retainage to Subcontractors shall not be made until the Project has been inspected by the Architect or other person designated by Owner for that purpose, and until both the Architect and Construction Manager have issued a written certificate that the Project has been constructed in accordance with the Project Plans and Specifications and approved Change Orders. Before issuance of final payment to any Subcontractor without any retainage, the Subcontractor shall submit satisfactory evidence that all payrolls, material bills, and other indebtedness connected with the Project have been paid or otherwise satisfied, wananty information is complete, as-built markups have been submitted, and instruction for Owner's operating and maintenance personnel is complete. Final payment may be made to certain select Subcontractors whose Work is satisfactorily completed prior to total completion of the Project, but only upon approval of Owner's Representative. 4.8 Contingent Assignment of Subcontractors. Each subcontract agreement for a the Work is assigned by Construction Manager to Owner, provided that: (1) assignment is effective only after termination of this Agreement by the Owner for cause pursuant to Article 15 and only for those subcontract agreements that Owner accepts by notifying the Subcontractor and Construction Manager in writing; and (2) assignment is subject to the prior rights of the surety, if any, obligated under bond relating to this Agreement. When accepts the assignment of a subcontract agreement, Owner assumes Construction Manager's rights :md obligations under the subcontract. Upon such assignment, if the Work has been suspended for more than thirty (30) days, the Subcontractor's compensation shall be adjusted for increases in cost resulting from the suspension. Upon such assignment to Owner, Owner may further assign the subcontract to a successor Construction Manager or other 33

37 ARTICLE V CHANGE ORDERS 5.1 :Minor Changes in the Project. The Architect shall have authority to order minor changes in the Project not involving a change in cost or an extension of the Project Completion Date and not inconsistent with the intent of the Project Plans and l\wuuvuli. and Construction Manager shall abide by and perform such minor changes. Such shall be effected by written order. Documentation of changes shah be determined by the Team, included monthly in the PMIS. Such changes shall be approved by Owner's and Architect. Such changes shall not affect the GMP to be paid to Construction and therefore shall not require a Change Order pursuant to Section Emergencies. In any emergency affecting the safety of persons or property, Manager shall act at its discretion to prevent threatened damage, injury, or loss. in the G MP or extension of time claimed by Construction Manager on account of Work shall be determined as provided in Section 5.5. However, whenever Construction Manager shall obtain verbal concurrence of Owner's Representative where the act will or may affect the GMP or Project Schedule. 5.3 Concealed Conditions. Subject to the requirements of Section 5.5, should '-'''''''''-o"''.. ou conditions be encountered in the performance of the Work below the surface of the ground at the Project Site which are: (1) subsurface or otherwise concealed physical conditions which materially from those indicated in the Project Plans and Specifications and Ownerfumished infomlation, or (2) unknown physical conditions of any unusual nature, which differ from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in this Agreement, and which reasonably should not have been discovered by Construction Manager as part of its scope of Project Site investigative services required hereunder, the GMP and the Project Substantial Completion Date may be equitably adjusted by Change Order upon request, in accordance with Section Hazardous Materials. In the event Construction Manager encounters on the Project Site material reasonably believed to be hazardous, petroleum or petroleum related products, or other hazardous or toxic substances, except as provided in Section 2.4.AA, Construction Manager shall immediately stop Work in the area affected and report the condition to Owner and the Architect in writing. The Work in the affected area shall not thereafter be resumed except by written agreement of Owner and Construction Manager if in fact the material has not been rendered harmless. The Work in the affected area shall be resumed Project Site has been rendered harmless, by written agreement of Owner and Manager, or in accordance with the final determination by the Architect or other appropriate professional employed by Owner. Construction Manager shall not be required to without its consent any Work relating to hazardous materials, petroleum or petroleum products, or other hazardous or toxic substances. In the event Construction Manager encounters on the Project Site materials believed in good faith to be hazardous or contaminated and the presence of such hazardous or contaminated material was not known and at the time the GMP was established, and it is necessary for Construction Manager to 34

38 Work in the area affected and delays the critical path for more than a seven (7) day period, to Construction Manager compensation shall be made in accordance with Section Project Schedule shall be adjusted accordingly_!l.~ Change Orders; Adjustments to GMP. No adjustments to the GMP shall be to implement Sections 5.2, 5.3 or 5.4 above, or any other additional compensation to Manager authorized in this Agreement, so long as funds are available in Project Use of Project Contingency shall be governed by Sections 3.2.E and 7.6 of this The increase or decrease in the Guaranteed Maximum Price resulting from a change in Section 5.2, 5.3 or 5.4 or an Owner-directed change shall be determined (i) by mutual acceptance of a lump sum amount properly itemized and supported by sufficient data, to permit evaluation by the Architect and Owner; or (ii) by unit prices stated Agreement or subsequently agreed upon; or (iii) by any other method mutually agreeable and Construction Manager. A Change Order, if required, will establish the basis for Construction Manager's compensation if a condition described in Sections 5.2, 5.3 or 5.4, the Substantial Completion Date or Final Completion Date or necessitates additional costs, those costs may be included in the pricing for the change. If Owner and Manager are unable to agree upon increases or decreases in the GMP, and the certifies that the Work needs to be commenced prior to any such agreement, Manager, provided it receives a written Change Order signed by or on behalf of promptly proceed with the Work involved. The cost of such Work shall then be on the basis of the reasonable expenditures of those performing the Work attributed to However, in the event a Change Order is issued under these conditions, Owner, through the Architect, will establish an estimated cost of the Work and Construction Manager shall not perform any Work whose cost exceeds that estimated without prior written approval by Owner. In such case, Construction Manager shall keep and present in such form as Owner may an itemized accounting, together with appropriate supporting data of the increase in overall costs of the Project. The amount of any decrease in the GMP to be allowed by Construction Manager to Owner for any deletion or change which results in a net decrease in costs will the amount of the actual net decrease. 5.6 Unit Price. If unit prices are stated in this Agreement or subsequently agreed upon, and if the quantities originally contemplated are so changed in a proposed Change Order that application of the agreed unit prices to the quantities of Work proposed will cause substantial inequity to Owner or Constmction Manager, the applicable unit prices and GMP shall be equitably adjusted. 5.7 Owner-Initiated Changes. Without invalidating the Agreement and without notice to any Surety, Owner may, at any time, order additions, deletions or revisions in the Work. These will be authorized by a written amendment, a Change Order, or a minor change to the Project, as the case may be. Upon receipt of any such document, Construction Manager shall promptly proceed with the Work involved which will be performed under the applicable conditions of the Contract Documents (except as otherwise specifically provided). 5.8 Unauthorized Work. Construction Manager shall not be entitled to an increase in GMP or an extension of the Contract Time with respect to any Work perfonned that is not required the Contract Documents. I' 35

39 5.9 Defective Work. Owner and Construction Manager shall execute appropriate Orders (or written amendments) covering changes in the Work which are ordered by or which may be required because of acceptance of defective Work, without adjustment GMP Estimates for Changes. At any time Architect may request a quotation from Manager for a proposed change in the Work. Within twenty-one (21) calendar receipt, Construction Manager shall submit a written and detailed proposal for an A~<"'U.,,,, or decrease in the GMP or Contract Time for the proposed change. Architect shah have twenty one (21) calendar days after receipt of the detailed proposal to respond in writing. The proposal shall include an itemized estimate of all costs and time for performance that will result directly or indirectly from the proposed change. Unless otherwise directed, itemized estimates shall be sufficient detail to reasonably permit an analysis by Architect of all material, labor, equipment, subcontracts, overhead costs and fees, and shall cover all Work involved in the whether such Work was deleted, added, changed or impacted. Notwithstanding the quotation, Construction Manager shall carryon the Work and maintain the progress schedule. ARTICLE VI ROLE OF ARCHITECT 6.1 Administration. The Architect will provide administration of this Agreement as to observation of the Project during construction and shall at all times have access to the wherever it is in preparation and progress. Owner shall, in accordance with this and Owner's agreement with Architect, use its best efforts to maintain cooperation the Architect and Construction Manager. 6.2 Observation of the Work. The Architect will visit the Project Site at intervals appropriate to the stage of construction to become familiar with the progress and quality of the Work and to determine in general if the Work is proceeding in accordance with this Agreement and the Project Plans and Specifications. On the basis of the Architect's on-site observations as an architect, the Architect will keep Owner informed of the progress of the Work, and will endeavor to protect Owner against defects and deficiencies in the Work of Construction Manager The Architect will not have control or charge of and will not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, which shall be the obligation of Construction Manager. 6.3 Interpretation of Project Plans and Specifications. The Architect will be the of the requirements of the Project Plans and Specifications. Upon receipt of comments or objections by Construction Manager or Owner, the Architect will make decisions on all claims, disputes, or other matters pertaining to the interpretation of the Project Plans and Specifications, The Architect's decisions in matters relating to artistic effect will be final if consistent with the Project Plans and Specifications. 36

40 6.4 Rejection of Non-Conforming Work. The Architect shall have the authority to Work which does not conform to the Project Plans and Specifications. 6.S Uncovering of Work. If any portion of the Work should be covered contrary to the request of the Architect, it must, if required in writing by the Architect, be uncovered its observation and shall be re-covered at Construction Manager's expense. If any other portion the Work has been covered which the Architect has not specifically requested to prior to being covered, the Architect may request to see such Work and it shall be uncovered by Construction Manager. If such Work is found to be in accordance with the Project Plans and Specifications, the cost of uncovering and re-covering shall, by appropriate Change Order, added to the Project Cost. If such Work is found not in accordance with the Project Plans and Specifications, and if such Work was not reviewed by the Architect in a timely manner, vvhich resulted in a portion of the Work being covered by Construction Manager and uncovered at the request of the Architect, then Construction Manager shall pay such costs. 6.6 Correction of Work. Construction Manager shall promptly correct all Work by the Architect for being defective or as failing to conform to the Project Plans and Specifications, whether observed before or after the Final Completion Date and whether or not installed, or completed. Construction Manager shall bear all costs of correcting such. Work, including compensation for Architect additional services made necessary thereby. 6.7 Timely Performance of Architect. Construction Manager shall identify which information or response from the Architect have the greatest urgency and those require prioritizing in response by the Architect. Construction Manager shall also preferred time period for response and shall request a response time which is and demonstrably related to the needs of the Project and Construction Manager. In event that Architect claims that Construction Manager's expectations for a response are Owner shall require Architect to communicate such claim to Construction writing together with the specific time necessary to respond and the date upon which such will be made. In the event that Construction Manager believes that Architect is not providing timely services or responses, Construction Manager shall notify Owner of same in not less than two (2) weeks before Construction Manager believes performance or time from Architect is required without risk of delaying the Project. ARTICLE VII OWNER'S RESPONSIBILITY 7.1 Project Site; Title. Owner hereby represents to Construction Manager that it currently has and will maintain up through and including the Project Substantial Completion Date, title to au of the real property constituting the Project Site. Owner agrees to resolve, any disputes relating to Ownership and use of the Project Site which might arise course of constmction. 37

41 7.2 Permits and Best Efforts. Owner shall be responsible for obtaining all necessary and governmental authorizations as may be necessary to the commencement of as contemplated by this Agreement, and to the Substantial Completion of the Such permits and governmental authorizations shall include the building permit, subject to Construction Manager responsibilities as set forth in Section 2.4 and any necessary variances, or other land use approvals. Upon receipt of all surveys, soils tests, and other Project information, Construction Manager shall promptly advise Owner of any inadequacies in such information and of the need for any additional surveys, soils or subsoil tests. In perfolming Work, Construction Manager shall use the standard of care of experienced Construction Managers or contractors and will use its best efforts timely to identify all problems or omissions. shall not be responsible for any delay or damages to Construction Manager for any or disclosed site conditions or disclosed deficiencies in the Project Site except as provided in Section 2.4 and lack of access to the Project Site which should have been identified by Construction Manager and corrected by Owner prior to the establishment of the GMP. 7.3 Project Plans and Specifications; Architect. The parties hereto acknowledge and that Owner has previously entered into an agreement between Owner and Architect dated 13, Pursuant to the terms of such agreement, the Architect, as an agent and representative of Owner, is responsible for the preparation of Project Plans and Specifications consist of drawings, specifications, and other documents setting forth in detail the requirements for the construction of the Project. All of such Project Plans and Specifications shall be provided either by Owner or the Architect, and Construction Manager shall be under no to provide same and shall be entitled to rely upon the accuracy and completeness of Plans and Specifications provided by the Architect and all preliminary drawings connection therewith. Construction Manager will be furnished a reproducible set of and specifications reasonably necessary for the performance of Constmction s services hereunder and otherwise ready for printing. Constmction Manager shall be notified of any written modification in the agreement between Owner and Architect. Construction Manager shall review the Agreement between Owner and Architect and shall identify contlicting obligations before the GMP is established to allow Owner an opportunity to conflict. 7.4 Surveys; Soil Tests and Other Project Site Information. Owner shall be for providing a legal description and certified land survey of the Project Site in a form content and with such specificity as may be required by the Architect and Construction Manager to perform their services. To the extent deemed necessary by Owner and Architect, and solely Owner's expense, Owner may engage the services of a geotechnical consultant to TlP,"tnrlrn test borings and other underground soils testing as may be deemed necessary by the or Construction Manager. Constmction Manager shall not be obligated to provide such or soil tests and shall be entitled to rely upon the accuracy and completeness of the provided to Construction Manager. Owner shall provide Constmction Manager, as soon as reasonably possible following the execution of this Agreement, all surveys or other information in its possession describing the physical characteristics of the Project Site, together with soils reports, subsurface investigations, utility locations, deed restrictions, easements, and legal descriptions then in its possession or control. These documents are listed on 38

42 7.5 Information; Communication; Coordination. Owner's Representative shall any documents or requests for information submitted by Construction Manager and Construction Manager of Owner's decisions pertaining thereto within a reasonable time to avoid unreasonable delay in the progress of Construction Manager's services. Manager shall indicate if any such documents or requests warrant priority However, decisions pertaining to approval of the Project Schedule as it relates to of Subst,mtial Completion, the Project Cost, Construction Manager's compensation, documentation relating to use of Project Contingency except as provided below, approving or the GMP shall only be effective when approved in writing by Owner. Owner reserves to designate a different Owner's Representative provided Construction Manager is in writing of any such change. Neither Owner nor the Architect shall attempt to direct of or otherwise interfere with any Subcontractor, materialmen, laborer, or supplier, or interfere with the Work of Construction Manager. 7.6 Project Contingency. Owner delegates to Owner's Representative the authority to approve expenditures from Project Contingency. The Project Contingency is included in the GMP Addendum. 7.7 Governmental Body. Construction Manager recognizes that Owner is a body with certain procedural requirements to be satisfied. Construction Manager will make reasonable allowance in its performance of services for such additional time required for approvals and decisions by Owner and any other necessary govemment 7.8 Pre-Completion Acceptance. Owner shall have the right to take possession of use any completed portions of the Work, although the time for completing the entire Work or portions may not have expired, but such taking possession and use shall not be deemed of any Work not completed in accordance with the Contract Documents, or to waive or diminish Owner's rights under this Agreement, including without limitation (a) the right to liquidated damages pursuant to Section 2.4.R(2) and (b) the right to enforce the of the Construction Manger pursuant to Section 2.4.S. 7.9 Ownership and Use of Project Plans and Specifications. (1) The Architect and the Architect's consultants shall be deemed the authors and owners of their respective Instruments of Service, including the Project Plans and Specifications, and will retain all common law, statutory and other reserved rights, including copyrights. Construction Manager, Subcontractors, sub-subcontractors, and material or equipment suppliers shall not own or claim a copyright in the Project Plans and Specifications. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with this Project is not to be constructed as publication in derogation of the Architect's or Architect's consultants' reserved rights. (2) Construction Manager, Subcontractors, sub-subcontractors and material or equipment suppliers are authorized to use and reproduce the Instruments of Service provided to them solely and exclusively for execution of the 39

43 Work. All copies made under this authorization shall bear the copyright notice, if any, shown on the Project Plans and Specifications. Construction Manager, Subcontractors, sub-subcontractors, and material or equipment suppliers may not use the Instruments of Service on other projects or for additions to this Project outside the scope of the Work without the specific written consent of Owner, Architect and the Architect's consultants. ARTICLE VIII PROJECT BUDGET; COST OVERRUNS; PROJECT CONTINGENCY 8.1 Limited to Project Budget. The Project Budget established by Owner sets forth amount available for completing all aspects of the Project. Constmction Manager that Owner is limited in the total sum available to complete the Project and has a lesser and specific sum for the constmction thereof. The Project Budget by the Owner for all aspects of the Project is Two Million Five Hundred Thousand 00/100 ($2,500,000). The amount estimated by the Owner as available for the Work is One Million Nine Hundred Eighty-six Thousand dollars ($1,986,000). The estimated Project Budget includes the costs of design services, the Work, Owner purchased items, development permits, the cost of Owner administration, and certain services necessary to or related constmction provided by, third-parties. 8.2 CM Fee Percentages. The CM Fee percentage shall be four and one-half percent (4.5 %) of Project Costs. 8.3 Preconstruction Services Fee. The Preconstmction Services Fee shall be one percent (1 %, not to exceed $19,860) of the Project Cost". 8.-' Cost Overruns. If at any time during the design of the Project Budget is or anticipated by Owner's Representative to be exceeded, Owner may: (1) approve an increase in the Project Budget, (2) authorize rebidding or renegotiation of the Project or portions of the Project within a reasonable time, (3) cooperate with the Architect and Constmction Manager to revise the Project scope and quality as required to reduce the constmction cost or (4) abandon the Project and terminate this Agreement in accordance with Article 15, hereof. Construction Manager shall be solely responsible for pay cost overmns during constmction, except to the extent an adjustment to the GMP is approved pursuant to Article V. 8.5 Project Contingency. Owner and Constmction Manager have agreed to include in the GMP, a sum to serve as Project Contingency. The purpose of the Project Contingency shah be for Owner to pay for anticipated Work not included by Constmction Manager in the cost of the Work as well as certain unforeseen costs which may arise during the Work. 40

44 8.6 Construction J\lIanager's Contingency - In preparing the Construction GMP price proposal the Construction Manager shall include its contingency for the Manager's exclusive use to cover those costs considered reimbursable as the cost of the Work, but not included in a Change Order. ARTICLE IX RESOLUTION OF DISAGREEMENTS; CLAIMS FOR COMPENSATION 9.1 Owner to Decide Disputes. Owner shall reasonably decide all questions and any nature whatsoever, that may arise in the execution and fulfillment of the provided for under this Agreement, in accordance with the Purchasing Ordinance. 9.2 Finality. The decision of Owner upon all claims, questions, disputes and shall be final and conclusive, and shall be binding upon all parties to this Agreement, to judicial review in accordance with applicable law. 9.3 Permitted Claims Procedure. Where authorized or permitted under this all claims for additional compensation by Construction Manager, changes in the GMP, extensions of time affecting the date of Substantial Completion, for payment by Owner of darnages or losses due to casualty, Force Majeure, Project Site conditions or otherwise, shall govemed by the following conditions: All claims must be submitted as a request for Change Order in the manner as in Article V. B. Construction Manager must submit a notice of claim to Owner's Representative and to the Architect within twenty (20) days of when Construction Manager was or should have been aware of the fact that an occurrence was likely to cause delay or increased costs. C. Within twenty (20) days of submitting its notice of claim, Construction Manager shall submit to Owner's Representative its request for Change Order, which shall include a written statement of all details of the claim, including a description of the Work D. After receipt of a request for Change Order, Owner's Representative, in consultation with the Architect, shall deliver to Construction Manager, within twenty (20) days after receipt of request, its written response to the claim. In the event Owner and Construction Manager are unable to agree on the terms a Change Order, Owner shall have the option to instruct Construction Manager to proceed with the Work. In that event, Owner shall agree to pay for those parts of the Work, the 41

45 and price of which are not in dispute. The balance of the disputed items in the order to 1"",,,.1'''1'''' will be resolved after completion of the Work, based upon completed actual cost. 9.4 Disputed Contract Claims. Except as otherwise provided herein, any dispute under this Agreement shall be decided by the Purchasing Director in accordance with of the Manatee County Code. The decision of the Board of County Commissioners in accordance with Section of the Manatee County Code shall be the final conclusive county decision subject to exclusive judicial review in the circuit court by a certiorari. ARTICLE X INSURANCE, INDEMNITY, AND WAIVER OF SUBROGATION 10.1 Indemnity. Indemnity in General. Construction Manager shall indemnify and hold Owner and its officers and employees, from liabilities, damages, losses, and costs, but not limited to reasonable attorney's fees, to the extent caused by the negligence, or intentionally wrongful conduct of Construction Manager, its personnel, Subcontractors, sub-subcontractors and other persons employed or utilized by Manager in the performance of this Agreement, including without limitation, construction, or errors or omissions that result in material cost increases to Owner. B. Claims by Employees. In claims against any person or entity indemnified under Section 10.1 by an employee of Construction Manager, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the obligation under Section 1O.1.A. shall not be limited by a limitation on amount damages, compensation or benefits payable by or for Construction Manager or a under workers' compensation acts, disability benefit acts or other employee 10.2 No Waiver of Sovereign Immunity. Nothing herein shall be interpreted as a waiver Owner of its rights, including the limitations of the waiver of immunity, as set forth in Florida Statutes , or any other statutes, and Owner expressly reserves these rights to the full extent allowed by law Duty to Defend. Construction Manager shall defend Owner in any action, mediation or arbitration caused by the negligence, recklessness or intentionally wrongful conduct of Construction Manager and other persons employed or utilized by Construction Manager in the performance of this Agreement. So long as Construction through its own counsel, performs its obligation to defend Owner pursuant to this Construction Manager shall not be required to pay Owner's costs associated with s participation in the defense. 42

46 10.4. Construction Manager's Insurance. A. Furnishing Insurance. Construction M,mager shall furnish the insurance set out this Article throughout the duration of this Agreement. All insurance policies shall be with qualified and doing business in Florida, and must be with insurers with not less than an rating. Insurance shall be in the name of Construction Manager and not in the name of the individual legal entities comprising Construction Manager. All insurance policies maintained pursuant to this Article shall remain in effect for at least two years after the termination of this B. Worker's Compensation Insurance. Construction Manager shall maintain life of this Agreement, workers' compensation insurance for all his employees meclc:u with the Work of the Project and, in case any Work is sublet, Construction Manager shall require Subcontractors and sub-subcontractors similarly to provide workers' compensation for all of their employees unless such employees are covered by the protection by Construction Manager. Such insurance shall comply with the Florida Workers' Compensation Law. C. Builder's Risk Coverage. Construction Manager shall take out and during the term of this Agreement a builder's risk policy, completed value form, to provide coverage on all risk basis, theft including but not limited to materials stored and materials in transit. This coverage shall not be lapsed or canceled because of partial by Owner prior to final Acceptance of the Project. Construction Manager shall recommend to Owner any additions to the Project Costs resulting from any casualty described in XIII hereof, including those costs, expenses and other charges (including normal and compensation to Construction Manager) necessary for reconstruction of the Project in accordance with the Project Plans and Specifications. The nature, level and type s risk coverage (including completed value or replacement cost coverage) shall be determined by Owner through insurers selected by Construction Manager and approved by Owner. be D. Subcontractor's Public Liability and Property Damage Insurance. Manager shall require each Subcontractor to procure and maintain during the term subcontract insurance of the type specified above, or insure the activities of Subcontractors as approved by Owner prior to performance of any services. Any reduction in the insurance coverage required by Construction Manager's standard form subcontract shall by Owner. E. Loss Deductible Clause. The payment of deductibles for insurance Construction Manager by this Agreement shall be the sole responsibility of Manager, excluding Builder's Risk deductible Liability and Property Damage Insurance. Construction Manager shall and maintain during the life of this Agreement; Commercial General Liability and Automobile Liability insurance. The certificate holder must be named as "ADDITIONAL INSURED" with the proper endorsement to the policy(s), and evidenced, on the Insurance 43

47 for Commercial General Liability and Auto Liability. Manatee County Board of Commissioners shall be named as the certificate holder, and should be as follows: Manatee County, a political subdivision of the State of Florida Board of County Commissioners Bradenton, FL type, and amount, of coverage shall be at a minimum as follows: A. Comprehensive General Liability: $1,000,000 each occunence and $2,000,000 in the aggregate for bodily injury and property damage. B. Automobile Liability: $1,000,000 bodily injury & property damage, each occunence and in the aggregate. C. Excess Liability, Umbrella Fornl: $3,000,000 each occunence and in the aggregate Certificate of Insurance. A celtificate of insurance form shall be furnished to Owner and approved before a notice to proceed will be issued. It shall be completed and signed by the authorized agent. This certificate shall include the following: A. The name of the Insured, the name of the Insurer, policy number, its effective date, and its termination date. B. A statement that the Insurer will mail notice to Owner and a copy to Construction Manager at least thirty (30) days prior to any reduction in coverage by endorsement or cancellation of the policy mandated by the Insurer. Constmction Manager shall otherwise to Owner within the thirty (30) day period, and the Insurer shall give prompt notice to any such changes or cancellation upon the Insurer's knowledge of same. C. The certificate of insurance shall be in the form as approved by Owner and such certificate shan clearly evidence insurance as required pursuant to this Section Complete Policies. The entire and complete insurance policies required herein shah be provided to Owner upon request Waiver of Subrogation. To the extent that property damage is covered by insurance, Owner and Constmction Manager agree to waive all subrogation rights against each other, except such rights as they may have to the proceeds of such insurance. Construction Manager shall require a similar waiver of subrogation from each of its Subcontractors and sub-subcontractors, and Construction Manager shall provide satisfactory confirmation to Owner of these additional waivers. A. Adjacent Properties. Owner waives subrogation against Constmction Manager on all property and consequential loss policies canied by Owner on adjacent properties,;)", 44

48 property and consequential loss policies purchased for the Project after its final B. Endorsement. If the policies of insurance referred to in this Article require an endorsement to provide for continued coverage where there is a waiver of subrogation, Owner policies will cause them to be so endorsed. Failure to obtain proper endorsement waiver of subrogation. ARTICLE XI ACCOUNTING RECORDS; OWNERSHIP OF DOCUMENTS shall 11.1 Accounting Records. Records of expenses pertaining to all services performed kept in accordance with generally accepted accounting principles and procedures Inspection and Audit. Construction Manager's records shall be open to and subject to examination, audit, and/or reproduction during normal working hours s agent or authorized representative to the extent necessary to adequately permit and verification of any invoices, payments or claims submitted by Construction or any of his payees during the performance of this Agreement. These records shall but not be limited to, accounting records, written policies and procedures, Subcontractor files (including proposals of successful and unsuccessful bidders), original estimating worksheets, correspondence, Change Order files (including documentation negotiated settlements), and any other supporting evidence necessary to substantiate related to this Agreement as they may apply to costs associated with this Agreement. For the purpose of such audits, inspections, examinations and evaluations, Owner's agent or authorized representative shall have access to said records from the effective date of this Agreement, for the duration of Work, and until three (3) years after the date of final payment by Owner to Construction Manager pursuant to this Agreement Access. Owner's agent or authorized representative shall have access to Constll1ction Manager's facilities and all necessary records in order to conduct audits in compliance with this Article. Owner's agent or authorized representative shall give Constll1ction Manager reasonable advance notice of intended inspections, examinations, and/or audits Ownership of Project Documents. Upon completion or tennination of this Agreement, all records, documents, tracings, plans, specifications, maps, evaluations, reports, transcripts and other technical data, other than working papers, prepared or developed by Construction Manager under this Agreement shall be delivered to and become the property of Owner Construction Manager at its own expense may retain copies for its files and internal usc. Owner shall not reuse any design plans or specifications to construct another Project at a different location without Construction Manager's specific written verification or adaptation or 45

49 ARTICLE XII PUBLIC CONTRACT LAWS 12.1 Equal Opportunity Employment. A. Construction Manager shall not discriminate against any employee or for employment because of race, creed, sex, color, national origin, disability or age, take affirmative action to insure that all employees and applicants are afforded equal opportunities without discrimination because of race, creed, sex, color, national disability or age. Such action will be taken with reference to, but shall not be limited to, employment, job assignment, promotion, upgrading, demotion, transfer, layoff or rates of training or retraining, including apprenticeship and on-the-job training. B. No person shall, on the grounds of race, creed, sex, color, national origin, or age, be excluded from participation in, be denied the proceeds of, or be subject to in the performance of this Agreement Independent Contractor; Immigration Reform and Control Act of Manager acknowledges that it is functioning as an independent contractor in under the terms of this Agreement, and it is not acting as an employee of Manatee Construction Manager acknowledges that it is responsible for complying with the the Immigration Reform and Control Act of 1986, located at 8 U.S.c. Section and regulations relating thereto. Failure to comply with the above provisions of contract shall be considered a material breach and shall be grounds for immediate of this Agreement No Conflict of Interest. Construction Manager warrants that it has not employed any company or person, other than a bona fide employee working solely for Manager to solicit or secure this Agreement, and that it has not paid or agreed to person, company, corporation, individual, or firm other than a bona fide employee solely for Construction Manager, any fee, commission, percentage, gift or any other contingent upon or resulting from the award or making of this Agreement. A. By accepting award of this Agreement, Construction Manager, which shall directors, officers and employees, represents that it presently has no interest in and shall acquire no interest in any business or activity which would conflict in any manner with the of services required hereunder, including without limitation as described in Construction Manager's own professional ethical requirements. An interest in a business or activity which shall be deemed a conflict includes but is not limited to direct financial interest in any of the material and equipment manufacturers, suppliers, distributors, or contractors who will be to supply material and equipment for the Project for which Construction Manager is its services required hereunder. B. Construction Manager shall not knowingly engage in any contractual or obligations that create an appearance of a conflict of interest with respect to the services provided pursuant to this Agreement. Construction Manager has provided the Affidavit 46

50 No Conflict, incorporated into this Agreement as Exhibit "G", as a material inducement for entering into this Agreement. If, in the reasonable discretion of the County, a conflict of interest is deemed to exist or arise during the term of the contract, the Administrator may cancel this Agreement, effective upon the date so stated in a written cancellation, without penalty to Owner Truth in Negotiations. By execution of this Agreement, Constmction Manager to truth-in-negotiations and that wage rates and other factual unit costs supporting the compensation are accurate, complete and current at the time of contracting. Further, the original contract amount and any additions thereto shall be adjusted to exclude any significant sums Owner determines the contract price was increased due to inaccurate, incomplete or nonrates and other factual unit costs. Such adjustments must be made within one (1) the end of this Agreement Public Entity Crimes. Construction Manager is directed to the Florida Public Crimes Act, section , Florida Statutes, specifically section 2(a), and Owner's requirement that Construction Manager comply with it in all respects prior to and during the term this Agreement. ARTICLE XIII FORCE MAJEURE, FIRE OR OTHER CASUAL TV 13.1 F'orce Majeure. A. Delays in any performance by any party contemplated or required to fire, flood, sinkhole, earthquake or hurricane, acts of God, unavailability of equipment or fuel, war, declaration of hostilities, revolt, civil strife, altercation or strike, labor dispute, or epidemic, archaeological excavation, lack of or failure of facilities, or any law, order, proclamation, regulation, or ordinance of any or any subdivision thereof, or for any other similar cause to those enumerated, beyond reasonable control and which with due diligence could not have been reasonably anticipated, shall be deemed to be events of Force Majeure and any such delays shall be excused. In event such party is delayed in the performance of any Work or obligation pursuant to this for any of the events of Force Majeure stated in this Section 13.1, the date for u""","'" required or contemplated by this Agreement shall be extended by the number of such party is actually delayed in such Substantial Completion. B. If a delay is caused for any reason provided in B.l.A. or as a result of an extension time provided by Change Order, and during the same time period a delay is caused by Construction Manager, the date for performance shall be extended as provided in 13.l.A. but only to extent the time is or was concurrent. 47

51 The party seeking excuse for nonperfonnance on the basis of Force Majeure shall give written notice to Owner if with respect to Construction Manager, or to Construction Manager if with respect to Owner, specifying it's actual or anticipated duration. seeking excuse from nonperformance on the basis of Force Majeure shall use its best efforts to rectify any condition causing a delay and will cooperate with the other party, except that neither pm1y shall be obligated to incur any unreasonable additional costs and expenses to overcome any loss of time that has resulted Casualty; Actions by Owner and Construction Manager. During the construction period, if the Project or any pm1 thereof shall have been damaged or destroyed, in or in pm1, Construction Manager shall promptly make proof of loss and Owner and Construction Manager shall proceed promptly to collect, or cause to be collected, all valid claims which may have arisen against insurers or others based upon such damage or destruction. Construction Manager shall diligently assess the damages or destruction and shall prepare an estimate of the cost, expenses, and other charges, including nonnal and ordinary compensation to Construction Manager, necessary for reconstruction of the Project substantially in accordance with the Project Plans and Specifications. Within fifteen (15) days following satisfaction of the conditions described in subsections A, Band C below, Construction Manager covenmlts and diligently to commence reconstruction and to complete the reconstruction or repair of any loss or damage by fire or other casualty to the Project to substantially the same size, floor area, content, and general appearance as prior to such loss or damage: A. Receipt by Owner of the proceeds derived from collection of all valid claims against insurers or others based upon such damage or destruction, and receipt of other sums from any source such that the funds necessary to pay the Project Cost and any additions to Cost necessitated for repair or reconstruction are available. B. Written agreement executed by Construction Manager and Owner, by to this Agreement or otherwise, authorizing and approving the repair or and any additions to the Project Cost necessitated thereby, induding any required "'''''U~'H to the GMP pursuant to Section 5.5. C. Final approval by Owner of the Project Plans and Specifications for such or reconstruction and issuance of any required building pennit Approval of Plans and Specifications. Owner agrees to approve the plans and for such reconstruction or repair if the reconstruction or repair contemplated by and specifications is economically feasible, and will restore the Project, or the portion thereof, to substantially the same condition as prior to such loss or damage, and such plans and specifications conform to the applicable laws, ordinances, codes, and regulations. Owner that all proceeds of any applicable insurance or other proceeds received by Owner or Construction Manager as a result of such loss or damage shall be used solely for payment of the expenses, and other charges of the reconstruction or repair of the Project Notice of Loss or Damage. Construction Manager shall promptly give Owner written notice of any significant damage or destruction to the Project, defined as loss or damage which it is contemplated by Construction Manager will increase the GMP or extend the date of 48

52 Completion, stating the date on which such damage or destruction occurred, the then of Construction Manager as to the effect of such damage or destruction on the use and the then proposed schedule, if any, for repair or reconstruction of the Project. damage which Construction Manager determines will not affect the GMP or date of Completion will be reported to Owner and Architect immediately, and associated actions will be undertaken without delay. ARTICLE XIV REPRESENTATIONS AND WARRANTIES 14.1 Representations and Warranties of Construction Manager. Construction represents and warrants to Owner that each of the following statements is presently true A. Construction Manager is a construction company, organized under the State of Florida, authorized to transact business in the State of Florida, and has all power and authority to carryon its business as now conducted, to own or hold its and to enter into and perform its obligations hereunder and under each instrument to it is or will be a party, and is in good standing in the State of Florida. B. Each document in connection with the Project to which Construction Manager is or will be a party has been duly authorized by all necessary action on the part of, and has or will be duly executed and delivered by, Construction Manager and neither the and delivery thereof nor compliance with the terms and provisions thereof or hereof: the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein; (b) contravenes an existing law, judgment, governmental rule, or order applicable to or binding on Construction Manager; or (c) contravenes or breach of, default under, or results in the creation of any lien or encumbrance upon of Construction Manager, within or without the State of Florida, under any mortgage, deed of trust, bank loan, or credit agreement, or any other agreement or to which Construction Manager is a party. C Each document contemplated by this Agreement to which Construction is or will be a party constitutes, or when entered into will constitute, a legal, valid, and obligation of Construction Manager enforceable against Construction Manager in with the terms thereof, except as such enforceability may be limited by applicable insolvency, or similar laws from time to time in effect which affect creditors' rights and subject to usual equitable principles in the event that equitable remedies are the D. There are no pending or, to the knowledge of Construction Manager, actions or proceedings before any COlllt or administrative agency, within or without Florida, against Construction Manager or any partner, officer, or agent of 49

53 Manager which question the validity of any document contemplated hereunder, or which are likely in any case, or in the aggregate, to materially adversely affect the consummation of transactions contemplated hereunder, or materially adversely affect the financial condition Construction Manager. Constmction Manager has filed or caused to be filed all federal, state, foreign tax returns, if any, which were required to be filed by Construction Manager, paid, or caused to be paid, all taxes shown to be due and payable on such returns or on assessments levied against Constmction Manager. As it relates to constmction of the Project as contemplated by this the offices for Constmction Manager's operations in the State of Florida are in Florida, and the office where it keeps its records concerning the Project and all licenses, and similar rights relating thereto is in Sarasota, Florida. G. Constmction Manager warrants that neither Constmction Manager nor any person employed or retained by Constmction Manager has acted fraudulently or in bad or in violation of any statute or law in the procurement of this Agreement. terms H. Constmction Manager shall timely fulfill or cause to be fulfilled all of the conditions expressed herein which are within the control of Constmction Manager or are the responsibility of Constmction Manager to fulfill. L It is recognized that neither the Architect, Constmction Manager, nor control over the cost of labor, materials, or equipment, over a Subcontractor's methods of determining bid prices, or over competitive bidding, market, or negotiating J. During the term of this Agreement, and the period of time that the of Constmction Manager under this Agreement shall be in effect, Constmction shall cause to occur and to continue to be in effect those instruments, documents, and events contemplated by this Agreement that are applicable to and the responsibility of Construction Manager. K. Constmction Manager shall assist and cooperate with Owner and shall accomplish the constmction of the Project in accordance with this Agreement and the Project Plans and Specifications, and will not knowingly violate any laws, ordinances, mles, regulations, or that are or will be applicable thereto Representations of Owner. To the extent permitted by law, Owner represents and warrants to Construction Manager that each of the following statements are presently tme and accurate: A. Owner is a validly existing political subdivision of the State of Florida. 50

54 B. Owner has all requisite corporate or governmental power and authority to on its business as now conducted and to perform its obligations under this Agreement and document contemplated hereunder to which it is or will be a party. C. This Agreement and each document contemplated hereby to which Owner a party has been duly authorized by all necessary action on the part of, and has been duly executed and delivered by Owner, and neither the execution and delivery thereof nor compliance with the terms and provisions thereof or hereof: (a) requires the approval and consent of any other person or party, except such as have been duly obtained or as are noted herein~ (b) contravenes any existing law, judgment, governmental rule, or order applicable to or binding on Owner; or (c) contravenes or results in any breach under, or result in the creation of any lien or encumbrance upon Owner under any mortgage, deed of trust, bank loan, or credit agreement, the charter, ordinances, or any other agreement or instrument to which Owner is a party, specifically any covenants of any bonds, notes, or other forms of indebtedness of Owner on the date of this Agreement. D. This Agreement and each document contemplated hereby to which Owner be a party constitutes, or when entered into will constitute, a legal, valid, and binding of Owner enforceable against Owner in accordance with the terms thereof, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws from in effect which affect creditors' rights generally, and subject to usual equitable in the event that equitable remedies are involved. There are no pending or, to the knowledge of Owner, threatened actions or before any court or administrative agency against Owner which question the validity of this Agreement or any document contemplated hereunder, or which are likely in any case or in the to materially adversely affect the consummation of the transactions contemplated hereunder or the financial or corporate condition of Owner. F. Owner shall use due diligence to timely fulfill or cause to be fulfilled all of the conditions expressed in this Agreement which are within the control of Owner or which are the responsibility of Owner to fulfill. G. During the pendency of this Agreement and while the obligations of Owner under this Agreement shall be in effect, Owner shall cause to occur and to continue to be in and take such action as may be necessary to enforce those instruments, documents, certificates and events contemplated by this Agreement that are applicable to and the of Owner. II. Owner shall assist and cooperate with Construction Manager in accomplishing the development of the Project in accordance with this Agreement and the Project Plans Specifications, and will not knowingly violate any laws, ordinances, rules, regulations, orders, contracts, or agreements that are or will be applicable thereto or, to the extent permitted by law, enact or adopt any resolution, mle, regulation, or order, or approve or enter into any contract or agreement, including issuing any bonds, notes, or other forms of indebtedness, that will in this Agreement or any part thereof, or any other instrument contemplated by and 11 51

55 to the timely and effective performance of a party's obligations hereunder, to be in thereof. 15 ARTICLE XV TERMINATION 15.1 Termination for Cause. This Agreement may be terminated by either party (30) days written notice to the other party should either party fail substantially to accordance with the terms of this Agreement through no fault of the other party. In Owner terminates for cause and it is later determined by a court of competent that such termination for cause was not justified, then in such even such tennination cause shall automatically be converted to a termination without cause pursuant to Section A. If Constmction Manager fails to timely perform any of its obligations Agreement, including any obligation Construction Manager assumes to commence to with its own forces, Owner may, after fourteen (14) days written notice, during Construction Manager fails to perform such obligation, make good such and perform such actions. The GMP, or the actual Cost of the Project, whichever is reduced by the cost to Owner of making good such deficiencies, and Construction s compensation shall be reduced by an amount required to manage the making good of Provided, however, nothing contained herein shall limit or preclude Owner additional damages from Construction Manager as a result of its breach. B. If Construction Manager is adjudged bankrupt, or if it makes a general benefit of its creditors, or if a receiver is appointed on account of its or if it persistently or repeatedly refuses or fails, except 1Il case for which extension provided, to supply enough properly skilled workmen or proper materials, or fails, without excused, to maintain an established schedule (failure to maintain schedule shall be defined as any activity on the critical path that falls thirty (30) days or more behind schedule) which has been adopted by the Construction Team, or it fails to make prompt payment to Subcontractors for materials or labor, or disregards laws, rules, ordinances, regulations, or orders of public authority having jurisdiction, or otherwise is guilty of substantial violations of the then Owner may, without prejudice to any other right or remedy, and after giving Construction Manager and its surety, if any, fourteen (14) days written notice, and during which period Construction Manager fails to cure (or, in the event such violation cannot be cured within 14 days, fails to commence and make reasonable effort to cure within a reasonable time the violation, terminate the employment of Construction Manager. C. As it relates to this project Owner may terminate the Contract if Construction Manager disregards laws or regulations of any public body having jurisdiction. D. In the event Owner terminates this Agreement for cause, Owner may, after Construction Manager and the Surety seven (7) days written notice and to the extent 1; 52

56 permitted by laws and regulations and subject to any prior rights of the surety, terminate the of Construction Manager; exclude Construction Manager from the site and take possession of the 'Work and of all Construction Manager's tools, construction equipment and machinery at the site and use the same to the full extent they could be used (without liability to Construction Manager for trespass or conversion); incorporate in the Work all materials and equipment stored at the site or for which Owner has paid Construction Manager but which are stored elsewhere, and finish the Work as Owner may deem expedient. In such case, Construction Manager shall not be entitled to receive any further payment beyond an amount equal to the value of material and equipment not incorporated in the Work, but delivered and suitably stored, less the aggregate of payments previously made. If the direct and indirect costs of completing the Work exceed the unpaid balance of the GMP, Constmction Manager shall pay the difference to Owner. Such costs incurred by Owner shall verified by Owner and incorporated in a Change Order; but in finishing the Work, Owner shall not be required to obtain the lowest figure for the Work performed. Constmction Manager's obligations to pay the difference between such costs and such unpaid balance shall survive termination of the Agreement Termination Without Cause by Owner. Owner, through its County or designee, shall have the right to terminate this Agreement, in whole or in part, without cause upon one hundred and twenty (120) calendar days written notice to Constmction Manager. In the event of such termination for convenience, Owner shall compensate Constmction Manager for payments due through the date of termination, and one subsequent payment to cover costs of Work performed through the date of termination, subject to the terms and conditions of Section 3.2. Construction Manager shall not be entitled to any other further against Owner, including, but not limited to, anticipated fees or profit on Work not to be performed, or consequential damages or costs resulting from such termination. A. As a condition of Owner's termination rights provided for in this Constmction Manager shall be released and discharged from all obligations arising or under the terms of this Agreement, and the Payment and Performance Bond shall Owner shall assume and become responsible for the reasonable value of Work by Subcontractor prior to termination plus reasonable direct close-out costs, but in no any Subcontractor be entitled to unabsorbed overhead, anticipatory profits, or early termination. Owner B. Construction Manager hereby waives any right to protest the exercise by rights under this Section that may apply under the Purchasing Ordinance. 15,3 Termination Based Upon Abandonment, Casualty or Force IVlajeure. If, after the construction commencement date (i) Owner abandons the Project (which for purposes of this paragraph shall mean the cessation of all constmction and other activities relating to the Project, excluding those which are necessary to wind down or otherwise terminate all outstanding obligations with respect to the Project, and no recommencement of same within one hundred twenty (1 days following the date of termination), or (ii) the Project is stopped for a period of thii1y consecutive days due to an instance of Force Majeure or the result of a casualty resulting in a loss that cannot be corrected or restored within one hundred twenty (120) days the time required to assess the damage and complete the steps contemplated under 53

57 Owner shall have the right to terminate this Agreement and pay Construction compensation earned or accrued to date Vacation of Project Site; Delivery of Documents. Upon termination by Owner to Section 15.2, 15.3 or 15.4, Construction Manager shall withdraw its employees and equipment, if any, from the Project Site on the effective date of the termination as specified in of termination (which effective date shall not be less than two (2) working days after delivery of the notice), regardless of any claim Construction Manager mayor may not Owner. Upon termination, Construction Manager shall deliver to Owner all papers, records, documents, drawings, models and other material set forth and described in this Agreement Termination by Construction Manager. If, through no act or fault of Manager, the Work is suspended for a period of more than ninety (90) days by Owner or under an order of court or other public authority, or Owner fails to act on any application or fails to pay Construction Manager any sum finally determined to be due; then Manager may, upon fourteen (14) days written notice to Owner terminate the Documents and recover from Owner payment for all Work executed, any expense plus reasonable termination expenses. In lieu of terminating the Agreement, if Owner to act on any application of payment or Owner has failed to make any payment as Construction Manager may upon fourteen (14) days written notice to Owner stop the until payment of all amounts then due. ARTICLE XVI REMEDIES 16.1 Remedies. Each party hereto shall have such remedies as are available pursuant to applicable law for any breach or non-performance by the other party, subject to the rights and set forth in this Agreement.,~~'U"".ll"'j'1L 16.2 Attorneys Fees and Costs. Each party hereto shall be solely responsible for attorneys fees and costs in any dispute, litigation, dispute resolution proceeding, negotiation or pre-litigation negotiation arising under this Agreement. The parties all rights to trial by jury Interest on Judgments. In the event of any disputes between the parties to this l:!re:enlei1it. including without limited thereto, their assignees and/or assigns, arising out of or any way to this Agreement, which results in litigation and a subsequent judgment, or decree against either party, any entitlement to post judgment interest, to either party attorneys, shall be fixed by the proper court at the rate of five percent (5%), per annum, simple interest. Under no circumstances shall either party be entitled to pre-judgment parties expressly acknowledge and, to the extent allowed by law, hereby waive the to assert any provision of federal or state statute that conflicts with this Section. 54

58 16.4 No Damages for Delay. If at any time Construction Manager is delayed in the of Construction Manager's responsibilities under this Agreement as the result of a or failure to perform in a timely manner by Owner or Owner's agents or employees, Manager shall not be entitled to any damages. Construction Manager's sale be a right to extend the time for performance. Nothing herein shall preclude Manager from any available remedy against any responsible party other than 16.5 lvlutua! Waiver of Consequential Damages. Notwithstanding any other provision neither party shall be liable to the other for contingent, consequential or other damages including, without limitation, damages for loss of use, revenue or profit (direct operating costs and facility downtime; or other similar business interruption losses, same may be caused. This mutual waiver of consequential damages shall apply the fault, breach of contract, tort (including negligence), strict liability or otherwise their employees or subconsultants. The parties agree that this mutual waiver of as set forth herein shall not be interpreted as a form of indemnification. This mutual damages shall not be construed to limit or prohibit the liquidated damages available to Owner pursuant to Sections 2.4.R (2) and ARTICLE XV11 MISCELLANEOUS PROVISIONS 19.1 Notices. All notices, comments, consents, objections, approvals, waivers, and which any party shall be required or requested or may desire to make or give under this shall be in writing and shall be given only by hand delivery for which a receipt is obtained, or certified mail, prepaid with confirmation of delivery requested, or facsimile transmission. All such communications shall be addressed to the applicable addressees set forth below or as any party may otherwise designate in the manner prescribed herein. Owner: Manatee County Property Management Department Director Property Management 1112 Manatee Avenue West, Suite 802 Bradenton, Florida Construction Manager: Halfacre Construction Company 7015 Professional parkway East Sarasota, Florida Attn: John J. Cox III, President 55

59 v Ln,,,",', comments, consents, objections, approvals, waivers, and election shall be deemed when received by the party for whom such communication is intended at such party's herein specified, or such other address or fax number as such party may have therefore by notice to the other Disclaimer of Third-Party Beneficiaries. This Agreement is solely for the of the parties hereto, and no right, privilege, or cause of action shall by reason hereof accrue to, or for the benefit of any third party. Nothing in this Agreement is intended or construed to confer upon or give any person, corporation, partnership, trust, private or other governmental entity any right, privilege, remedy, or claim under or by this Agreement or any provisions or conditions hereof Construction. A. Entire Agreement. This Agreement represents the full agreement of the B. Equal Construction. Each of the parties hereto has had the benefit of by counsel and equal input into drafting of this Agreement such that no provision Agreement shall be strictly construed against one party as the drafter thereof. ",~\",lll(ui\"lll C. Headings and Captions. The headings and captions of articles, sections, and paragraphs used in this Agreement are for convenience of reference only and are not intended to define or limit their contents, nor are they to affect the construction of or be taken consideration in interpreting this Agreement. D. Singular, Masculine as the Case May be Feminine. All pronouns and any thereof shall be deemed to refer to the masculine, feminine and neuter, singular or plural, as the identities of the party or parties, personal representatives, Subcontractors, successors or assigns may require. E. Legal References. All references to statutory sections or chapters shall be construed to include subsequent amendments to such provisions, and to refer to the successor of any such provision. References to "applicable law" and "general law" shall be construed to include provisions of local, state and federal law, whether established by legislative action, administrative rule or regulation, or judicial decision Amendments; Waivers; Assignment. A. Amendments. This Agreement may be amended only pursuant to an instrument in writing that has been jointly executed by the parties hereto and duly authorized and approved by the Board of County Commissioners of Owner and by an authorized officer of Construction Manager. R Waivers. Neither this Agreement nor any poltion of it may be modified or waived orally_ However, each party (through its governing body or properly authorized officer) shall the right, but not the obligation, to waive, on a case-by-case basis, any right or 56

60 herein reserved or intended for the benefit or protection of such party without being or considered to have waived such right or condition for any other case, situation, or and without being deemed or considered to have waived any other right or condition. No such waiver shall be effective unless made in writing with an express and specific statement of the intent of such governing body or officer to provide such waiver. C. Assignment. The rights and obligations of either party to this Agreement may be assigned to a third party only pursuant to a written amendment hereto. the 19.5 Validity. Each of Owner and Construction Manager represents and warrants to its respective authority to enter into this Agreement Covenant To Defend. Neither the validity of this Agreement nor the validity of any portion hereof may be challenged by any party hereto, and each party hereto hereby waives right to initiate any such challenge. Furthermore, if this Agreement or any portion hereof is challenged by a third party in any judicial, administrative, or appellate proceeding (each party hereby covenanting with the other party not to initiate, encourage, foster, promote, cooperate or acquiesce to such challenge), the parties hereto collectively and individually agree, at individual sole cost and expense, to defend in good faith its validity through a final judicial determination or other resolution, unless all parties mutually agree in writing not to defend such or not to appeal any decision invalidating this Agreement or any portion thereof. 19,7 Severability. The provisions of this Agreement are declared by the parties hereto severable. In the event any term or provision of this Agreement shall be held invalid by a competent jurisdiction, such invalid term or provision should not affect the validity of term or provision hereof; and all such terms and provisions hereof shall be enforceable to fullest extent permitted by law as if such invalid term or provision had never been part of this Agreement; provided, however, if any term or provision of this Agreement is held to be invalid due to the scope or extent here thereof, then, to the extent permitted by law, such term or provision shall be automatically deemed modified in order that it may be enforced to the maximum scope and extent permitted by law Governing Law; Venue. This Agreement shall be governed by the laws of the State of Florida. Venue for any action to enforce any of the provisions of this Agreement shall be Circuit Court of the Twelfth Judicial Circuit in and for Manatee County, Florida. 57

61 19.9 Effective Date. This Agreement shall take effect as of the date set forth above. WHEREFORE, the parties hereto have executed this Agreement No DC for Utilities Operations Department Business Operations Facilities as of the date and year first above written. By: ~~ ~~ Tov\", S. (ox ~\\ Name and Title I Y,,(::.,cl.et\t Date: -="-+-.:::...!-J..!..-I. the County Melissa M. Wendel, CPPO Purchasing Official OJ) 58

62 EXHIBIT A CMAR FOR SEWRF MAINTENANCE BUILDING KEY TEAM MEMBERS Project Manager: Tom Rees or Greg Witt Superintendent: Mike Lawton Administrator: Kim Johnson

63

64

65

66

67

68 EXHIBIT C CMAR FOR SEWRF MAINTENANCE BUILDING CONSTRUCTION MANAGER RATES Project Manager: $90/ Hour Superintendent: $75/ Hour Administrator: $35/ Hour Other Rates: General Uability Insurance: Flat rate percentage of O. 15% of contract amount Job Trailer: $300/ Month Telephone: $150/ Month

69 EXHIBIT D CMAR FOR SEWRF MAINTENANCE BUILDING FORM OF GMP ADDENDUM Attached: Proposed Form.

70 EXHIBIT D FORl\1 OF GlVIP ADDENDUlVI TO AGREElVlENT FOR CONSTRUCTION lvlanager AT RISK SERVICES FOR UTILITIES DEPARTlVIENT BUSINESS OPERATIONS I<~ACILITIES Between MANATEE COUNTY And HALFACRE CONSTRUCTION COMPANY THIS GMP ADDENDUM TO THE AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES FOR THE UTILITIES DEPARTMENT BUSINESS OPERATIONS FACILITIES is (GMP) entered into this day of,2014, by and between Manatee County, a of the State of Florida, referred to herein as "Owner" and the firm of Halfacre Company incorporated in the State of Florida and registered and licensed to do State of Florida, referred to herein as "Construction Manager". WHEREAS, Owner and Construction Manager have entered into the Agreement for Manager at Risk Services for Utilities Department Business Operations Facilities under which the Construction Manager shall provide the professional construction services requisite to the implementation of the construction of a Utilities Department Operations Facilities (as further defined in the Agreement as the "Project"), and WHEREAS, the Agreement provides that prior to commencement of construction of the Construction Manager and Owner must agree upon a guaranteed maximum price construction of the Project, to be established and memorialized in an addendum the Agreement; and WHEREAS, the Project has been designed and permitted to a point sufficient that Manager and Owner have agreed upon a GMP, as set forth herein. NOW THEREFORE, County and Construction Manager, in consideration of the mutual hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as Establishment of GMP. Pursuant to Section 3.2A of the Agreement, the GMP is hereby as ). Construction Manager shall include with the GMP, a written statement of its basis, which shall include the following:

71 a. A list of the drawings and specifications, including ail addenda thereto. b. A list of the clarifications and assumptions made by Construction Manager in the preparation of the GMP proposal to supplement the information provided by Owner and contained in the Drawings and Specifications. c. A statement of the GMP, including a statement of the estimated Cost of the Work organized by trade categories or systems, allowances, contingencies, and the Construction Manager's fee. A date by which the must accept the GPM. Construction Manager shall achieve substantial completion of the Project within calendar days of receipt of the Notice to Proceed for Construction (NTPC). This Addendum shall constitute the GMP Addendum for purpose of satisfying the requirements of Section 3.2A of the Agreement, and shall supplement the Agreement such that all references to the GMP shall be construed to refer to the GMP set forth in Section 1 hereof, as such GMP may be adjusted pursuant to the terms of the Agreement. All terms of the Agreement, as supplemented hereby, shall remain in full force and effect. the parties hereto have executed this Addendum as of the date and first above written. HALFACRE CONSTRUCTION COMPANY 8y: Date: Manatee County, Florida Melissa M. Wendel, CPPO Purchasing Official