AGREEMENT

Exhibit 10.212

 

AIA Document A121 ^TM CMc 2003 and AGC

Document 565

 

Standard Form of Agreement Between Owner and Construction Manager

where the Construction Manager is Also the Constructor

 

 

 

 

 

 

 

 

 

ARTICLE I GENERAL PROVISIONS

 

§ 1.1 RELATIONSHIP OF PARTIES

 

The Construction Manager accepts the relationship of trust and confidence established with the Owner by this Agreement, and covenants with the Owner to furnish the Construction Manager’s reasonable skill and judgment and to cooperate with the Architect in furthering the interests of the Owner. The Construction Manager shall furnish construction administration and management services and use the Construction Manager’s best efforts to perform the Project in art expeditious and economical manner consistent with the interests of the Owner. The Owner shall endeavor to promote harmony and cooperation among the Owner, Architect, Construction Manager and other persons or entities employed by the Owner for the Project.

 

§ 1.2 GENERAL CONDITIONS

 

For the Construction Phase, the General Conditions of the contract shall be the AIA ^® Document A201 ^™ - l997, General Conditions of the Contract for Construction, which is incorporated herein by reference. For the Preconstruction Phase, or in the event that the Preconstruction and Construction Phases proceed concurrently, A201 ^™ - l997 shall apply to the Preconstruction Phase only as specifically provided in this Agreement. The term “Contractor” as used in A201 ^™ - l997 shall mean the Construction Manager.

 

§1.3 CONSTRUCTION MANAGER’S REPRESENTATIVES

 

The Construction Manager’s Project Executive shall be Randy Grubb, the Senior Preconstruction Manager shall be Reid Miller, the Senior Project Manager shall be Scott Johns, and the General Superintendent shall be Mike Higgins The Construction Manager’s Senior Project Manager, Assistant Project Manager, General Superintendent and Superintendent shall be full —time employees of the Construction Manager. These individuals will only be replaced with someone that is mutually agreeable to both the Construction Manager and the Owner.

 

ARTICLE 2 CONSTRUCTION MANAGER’S RESPONSIBILITIES

 

The Construction Manager shall perform the services described in this Article. The services to be provided under Sections 2.1 and 2.2 constitute the Preconstruction Phase services. If the Owner and Construction Manager agree, after consultation with the Architect, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases will proceed concurrently.

 

§ 2.1 PRECONSTRUCTION PHASE

 

§ 2.1.1 PRELIMINARY EVALUATION

 

The Construction Manager shall provide a preliminary evaluation of the Owner’s program and Project budget requirements, each in terms of the other.

 

§ 2.1.2 CONSULTATION

 

The Construction Manager with the Architect shall jointly schedule and attend regular meetings with the Owner. The Construction Manager shall consult with the Owner and Architect regarding site use and improvements and the selection of materials, building systems and equipment. The Construction Manager shall provide recommendations on construction feasibility; actions designed to minimize adverse effects of labor or material shortages; time requirements for procurement, installation and construction completion; and factors related to construction cost, including estimates of alternative designs or materials, preliminary budgets and possible economies.

 

§ 2.1.3 PRELIMINARY PROJECT SCHEDULE

 

When Project requirements described in Section 3.1.1 have been sufficiently identified, the Construction Manager shall prepare, and periodically update, a preliminary Project schedule for the Architect’s review and the Owner’s approval. The Construction Manager shall obtain the Architect’s approval of the portion of the preliminary Project schedule relating to the performance of the Architect’s services. The Construction Manager shall coordinate and integrate the preliminary Project schedule with the services and activities of the Owner, Architect and Construction Manager, As design proceeds, the preliminary Project schedule shall be updated to indicate proposed activity sequences and durations, milestone dates for receipt and approval of pertinent information, submittal of a Guaranteed Maximum Price proposal, preparation and processing of shop drawings and samples, delivery of materials or equipment requiring long-lead-time procurement, Owner’s occupancy requirements showing portions of the Project having occupancy priority, and proposed date of Substantial Completion. If preliminary Project schedule updates indicate that previously approved schedules may not be met, the Construction Manager shall make appropriate recommendations to the Owner and Architect.

 

 

§ 2.1.4 PHASED CONSTRUCTION

 

The Construction Manager shall make recommendations to the Owner and Architect regarding the phased issuance of Drawings and Specifications to facilitate phased construction of the Work, if such phased construction is appropriate for the Project, taking into consideration such factors as economies, time of performance, availability of labor and materials, and provisions for temporary facilities.

 

§ 2.1.5 PRELIMINARY COST ESTIMATES

 

§ 2.1.5.1 When the Owner has sufficiently identified the Project requirements and the Architect has prepared other basic design criteria, the Construction Manager shall prepare, for the review of the Architect and approval of the Owner, a preliminary cost estimate utilizing area, volume or similar conceptual estimating techniques.

 

§ 2.1.5.2 When Schematic Design Documents have been prepared by the Architect and approved by the Owner, the Construction Manager shall prepare, for the review of the Architect and approval of the Owner, a more detailed estimate with supporting data. During the preparation of the Design Development Documents, the Construction Manager shall update and refine this estimate at appropriate intervals agreed to by the Owner, Architect and Construction Manager. In addition, the Construction Manager shall identify team members, schedule, conduct and attend project coordination meetings with Architect and/or Owner, meet with local environmental and building officials and agencies as needed, review documents and provide construction related comments, develop list of potential subcontractors and suppliers, discuss possible pre-selection of major subcontractors for construction input, prepare budget estimates in approved format, provide value engineering recommendations to the Owner and Architect for major construction components, including cost evaluations of alternative materials, equipment and systems, and provide anticipated construction schedule.

 

§ 2.1.5.3 When Design Development Documents have been prepared by the Architect and approved by the Owner, the Construction Manager shall prepare a detailed estimate with supporting data for review by the Architect and approval by the Owner. During the preparation of the Construction Documents, the Construction Manager shall update and refine this estimate at appropriate intervals agreed to by the Owner, Architect and Construction Manager. In addition, the Construction Manager shall revise list of team members to include selected subcontractors and suppliers if applicable, attend project meetings with Architect and/or Owner, meet with local officials and agencies as needed, review documents and provide construction related comments, provide and review lists of potential subcontractors and suppliers, revise the budget estimate in approved format, update the construction schedule, and discuss long lead time items, building components and their effect on the construction schedule. During the preparation of the Design Development Documents and the Construction Documents, the Construction Manager shall review the Design Development Documents and the Construction Documents for clarity, consistency, constructability and coordination among the subcontractors and suppliers.

 

§ 2. 1.5.4 If any estimate submitted to the Owner exceeds previously approved estimates or the Owner’s budget, the Construction Manager shall make appropriate recommendations to the Owner and Architect.

 

§ 2.1.6 SUBCONTRACTORS AND SUPPLIERS

 

The Construction Manager shall seek to develop subcontractor interest in the Project and shall furnish to the Owner and Architect for their information a list of possible subcontractors, including suppliers who are to furnish materials or equipment fabricated to a special design, from whom proposals will be requested for each principal portion of the Work. The Architect will promptly reply in writing to the Construction Manager if the Architect or Owner know of any objection to such subcontractor or supplier. The receipt of such list shall not require the Owner or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the Owner or Architect later to object to or reject any proposed subcontractor or supplier.

 

§ 2.1.7 LONG-LEAD-TIME ITEMS

 

The Construction Manager shall recommend to the Owner and Architect a schedule for procurement of long-lead-time items which will constitute part of the Work as required to meet the Project schedule. If such long-lead-time items are procured by the Owner, they shall be procured on terms and conditions acceptable to the Construction Manager. Upon the Owner’s acceptance of the Construction Manager’s Guaranteed Maximum Price proposal, all contracts for such items shall be assigned by the Owner to the Construction Manager, who shall accept responsibility for such items as if procured by the Construction Manager. The Construction Manager shall expedite the delivery of long-lead-time items.

 

§ 2.1.8 EXTENT OF RESPONSIBILITY

 

The Construction Manager does not warrant or guarantee estimates and schedules except as may be included as part of the Guaranteed Maximum Price. The recommendations and advice of the Construction Manager concerning design alternatives shall be subject to the review and approval of the Owner and the Owner’s professional consultants. It is not the Construction Manager’s responsibility to ascertain that the Drawings and Specifications are in accordance with applicable laws, statutes, ordinances, building codes, rules and regulations. However, if the Construction Manager recognizes that portions of the Drawings and Specifications are at variance therewith, the Construction Manager shall promptly notify the Architect and Owner in writing. By performing the reviews described herein, the Construction Manager is not acting in a manner so as to assume responsibility or liability for all or any part of the project design and/or design documents.

 

§ 2.1.9 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION

 

The Construction Manager shall comply with applicable laws, regulations and special requirements of the Contract Documents regarding equal employment opportunity and affirmative action programs.

 

§ 2.2 GUARANTEED MAXIMUM PRICE PROPOSAL AND CONTRACT TIME

 

§ 2.2.1 During the Pre-Construction Phase, the Owner will require that the Construction Manager provide a Guaranteed Maximum Price for the Project. The Guaranteed Maximum Price shall be submitted to the Owner by July 4, 2005 based upon the construction drawings being 65% complete by June 4, 2005. The Guaranteed Maximum Price shall be the sum of the estimated Cost of the Work and the Construction Manager’s Fee.

 

§ 2.2.2 As the Drawings and Specifications may not be finished at the time the Guaranteed Maximum Price proposal is prepared, the Construction Manager shall provide in the Guaranteed Maximum Price for further development of the Drawings and Specifications by the Architect that is consistent with the Contract Documents and reasonably inferable therefrom. Such further development does not include such things as changes in scope, systems, kinds and quality of materials, finishes or equipment, all of which, if required, shall be incorporated by Change Order.

 

(Paragraph deleted)

 

§ 2.2.2 [Intentionally Deleted]

 

§ 2.2.4 BASIS OF GUARANTEED MAXIMUM PRICE

 

The Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement of its basis, which shall include:

 

1.

A list of the Drawings and Specifications, including all addenda thereto and the Conditions of the Contract, which were used in preparation of the Guaranteed Maximum Price proposal.

 

2.

A list of allowances and a statement of their basis.

 

3.

A list of the clarifications and assumptions made by the Construction Manager in the preparation of the Guaranteed Maximum Price proposal to supplement the information contained in the Drawings and Specifications.

 

4.

The proposed Guaranteed Maximum Price, including a statement of the estimated cost organized by trade categories, allowances, contingency, and other items and the Fee that comprise the Guaranteed Maximum Price.

 

5.

The Date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based, and a schedule of the Construction Documents issuance dates upon which the date of Substantial Completion is based.

 

6.

The Guaranteed Maximum Price has been calculated and Contract Time established on the basis of the Preliminary Documents, which represent approximately sixty-five percent (65%) completion of Construction Documents. In determining the Guaranteed Maximum Price and Contract Time, the Construction Manager has taken into account the level of completeness of the Preliminary Documents and has exercised all commercially reasonable efforts to make: (i) appropriate judgments and inferences in connection with the requirements of such Preliminary Documents, and (ii) all inquires of the Owner to clarify the Preliminary Documents as necessary to calculate and establish both the Guaranteed Maximum Price and the Contract Time. As final Drawings and Specifications are developed, the Construction Manager shall be permitted to verify the Guaranteed Maximum Price and Contract Time as set forth in Paragraph 2.2.4 (hereinafter referred to as the “Scope Verification Process”).

 

7.

Promptly upon execution of this Agreement, the Construction Manager shall furnish the Owner with (i) an initial Schedule of Values as required by Paragraph 9.2 of the General Conditions and (ii) an initial Construction Schedule as required under Paragraph 3.10 of the General Conditions. Both such documents shall be in form and substance satisfactory to the Owner and include such data and documents as the Owner in consultation with the Architect may reasonably require. The initial Schedule of Values and initial Construction Schedule shall also each include a written narrative which sets forth any clarifications, assumptions, conditions and qualifications to the information and data set forth therein, such as any line-items in the initial schedule of values or Milestone Dates in the initial Construction Schedule (collectively the Planning Criteria). The Owner and the Construction Manager intend to use the Planning Criteria as the basis for determining if any supplemental documents (defined in Paragraph 2.2.4.9) constitute further refinement and detailing of the Scope of the Work, for which no adjustments in the Guaranteed Maximum Price or Contract Time are required, or a Scope Change (as defined in Paragraph 2.2.4.10). Upon review and acceptance by the Owner of the initial Schedule of Values and initial Construction Schedule, a list of the Planning Criteria shall be compiled by the Owner for approval by the Construction Manager and attached to this Agreement and made a part hereof as Exhibit B. Throughout the Scope Verification Process, the Owner shall furnish the Construction Manager, to the extent reasonably possible, with information and materials in the Owner’s possession to resolve issues raised by the Planning Criteria. The Construction Manager shall promptly revise and resubmit the Schedule of Values and Construction Schedule, as appropriate, to both the Owner and the Architect based upon such additional information. The Construction Manager shall not be permitted to claim any adjustment in either the Guaranteed Maximum Price or Contract Time iii connection with the completion of the final Drawings and Specification, except for Scope Changes as described below in Paragraph 2.2.4.10.

 

8.

The Owner will cause the Architect to prepare additional and revised drawings and specification which shall supplement, add to, particularize, refine and detail the Preliminary Documents as necessary to furnish the Construction Manager with a set of final drawings and specifications with which to perform the Work. The Owner may request the Construction Manager to review and comment on such drawings and specifications under Paragraph 2.1.5.3 and not as part of this Scope Verification Process. After the Owner accepts such drawings and specifications as final Drawings and Specifications (hereinafter referred to as “Supplemental Documents”), the Construction Manager shall review the Supplemental Documents in detail and notify the Owner and the Architect of any known or apparent errors, inconsistencies or discrepancies between the Supplemental Documents and Preliminary Documents. Upon completion of such review, the Construction Manager shall also notify the Owner in writing of any item in the Supplemental Documents which, in the Construction Manager’s opinion, represents a Scope Change, as defined in Paragraph 2.2.4.10 below, setting forth, with particularity, the reasons the Construction Manager contends that information or requirements of the Supplemental Documents represent a Scope Change (such a notice is a “Scope Verification Request”). Construction Manager acknowledges and agrees that (i) Supplemental Documents are not intended to change the scope, quality, quantity, function or design intent of information set forth in the Preliminary Documents and (ii) not all differences between the Preliminary Documents and Supplemental Documents, or information first appearing in the Supplemental Documents constitute Scope Changes but rather may constitute scope detailing. Each Scope Verification Request shall set forth the increased costs that the Construction Manager attributes to the Work covered by such Scope Verification Request and the estimated adjustment to any Milestone Date. Failure of the Construction Manager to so notify the Owner within thirty (30) days after the date of receipt by the Construction Manager of any known or apparent errors, inconsistencies or discrepancies between the Supplemental Documents and Preliminary Documents is hereby deemed to mean: (1) such Supplemental Documents are consistent with the Preliminary Documents; (2) RO) Scope Changes exist; and (3) the Construction Manager is willing and able to perform all of the Work for the Guaranteed Maximum Price and in accordance with all the requirements of the then current Schedule of Values and Construction Schedule and all Contract Documents.

 

9.

A “Scope Change” is hereby deemed to mean Work described in Supplemental Documents which is not reasonably inferable from either the Preliminary Documents or any other previously furnished Contract Documents by a contractor of similar skill, experience and expertise as necessary for the proper, timely and orderly completion of the Work and is (i) materially inconsistent with the Planning Criteria or (ii) a material change in the quantity, quality, programmatic requirements or other substantial deviation in the then current Contract Documents.

 

10.

If the Contractor timely submits to the Owner a Scope Verification Request, then the Owner shall have the following options:

 

(1)

within fifteen (15) days of receipt of a Scope Verification Request, the Owner shall direct the Architect in writing, with a copy to the Construction Manager, to redesign that aspect of the Supplemental Documents to which the Construction Manager objects. The Construction Manager shall cooperate with the Owner and the Architect during the redesign effort and shall make recommendations appropriate to correct such portions of the Supplemental Documents. The Architect shall submit to the Construction Manager the revised Supplemental Documents as approved by the Owner. The Construction Manager shall promptly re-examine such revised Supplemental Documents as described in Paragraph 2.2.4.9;

 

(2)

if, upon review of a Scope Verification Request, the Owner believes that the portion of the Work described therein does not constitute a Scope Change, the Owner shall so advise the Construction Manager within fifteen (15) days of receipt of such Scope Verification Request. The Owner and the Construction Manager will attempt to resolve their disagreement and identify elements of the Scope Verification Request which can be revised. If such disagreement is not resolved, the Work described in the Scope Verification Request shall be identified in a schedule (the “Disputed Work Schedule”) to be prepared and periodically updated by the Owner. Whenever possible, the Owner and the Construction Manager shall resolve items set forth in the Disputed Work Schedule, confirming such resolution in a written memorandum signed by both parties. An appropriate Change Order, if necessary, will then be issued. All items remaining in the Disputed Work Schedule shall be performed by the Construction Manager as required by the Construction Documents and a tentative adjustment shall be made to the Guaranteed Maximum Price of fifty percent (50%) of the amount of the disputed Scope Verification Request. The Construction Manager shall keep a separate accounting of any Work covered by a Scope Verification Request and upon completion of such Work any tentative adjustment to the Guaranteed Maximum Price shall be reallocated based upon such accounting and other materials the Owner may reasonably request. Adjustments to the Construction Schedule will not be permitted on a tentative basis;

 

(3)

if the Owner notifies the Construction Manager, in writing of the approval of the Scope Verification Request, or any part thereof, then such Scope Verification Request, or any part thereof, shall be deemed approved by the Owner and a Change Order issued to cover such request

 

11.

Upon identification of all items to be set forth in the Disputed Work Schedule, a Change Order shall be issued covering the entire aggregate adjustment to the Guaranteed Maximum Price and Contract Time caused by Scope Verification Requests that have been approved by the Owner. The Scope Verification Process shall then be considered concluded except for the Disputed Work Schedule. Any Change Orders issued thereafter not involving the Disputed Work Schedule shall be deemed to relate to the Contract Documents, as completed. Except as set forth in Paragraph 2.2.4, nothing contained in Paragraph 2.2.4 relating to Scope Changes shall be deemed to limit the Change Order procedures applicable to final Drawings and Specifications.

 

§ 2.2.5 The Construction Manager shall meet with the Owner and Architect to review the Guaranteed Maximum Price proposal and the written statement of its basis. In the event that the Owner or Architect discovers any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis, or both.

 

§ 2.2.6 Unless the Owner accepts the Guaranteed Maximum Price proposal in writing on or before the date specified in the proposal for such acceptance and so notifies the Construction Manager, the Guaranteed Maximum Price proposal shall not be effective without written acceptance by the Construction Manager. The Owner is under no obligation to accept the Guaranteed Maximum Price proposal by the Construction Manager.

 

§ 2.2.7 Prior to the Owner’s acceptance of the Construction Manager’s Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, the Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work, except as the Owner may specifically authorize in writing.

 

§ 2.2.8 Upon acceptance by the Owner of the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price and its basis shall be set forth in Amendment No. 1 and in accordance with paragraph 2.2.4 of this Agreement. The Guaranteed Maximum Price shall be subject to additions and deductions by a change in the Work as provided in the Contract Documents, and the Date of Substantial Completion shall be subject to adjustment as provided in the Contract Documents.

 

§ 2.2.9 The Owner shall authorize and cause the Architect to revise the Drawings and Specifications to the extent necessary to reflect the agreed-upon assumptions and clarifications contained in Amendment No. 1. Such revised Drawings and Specifications shall be furnished to the Construction Manager in accordance with schedules agreed to by the Owner, Architect and Construction Manager. The Construction Manager shall promptly notify the Architect and Owner if such revised Drawings and Specifications are inconsistent with the Construction Manager’s agreed-upon assumptions and clarifications. Nothing in this Agreement shall be deemed to require or permit the Construction Manager to perform any act which would constitute design services, laboratory testing, or the practice of architecture, professional engineering, certified public accounting or law. With the exception of the Guaranteed Maximum Price referred to in this Agreement, the recommendations, advice, budgetary information and schedules to be furnished by Construction Manager under this Agreement shall not be deemed to constitute the performance of licensed professional services.

 

§ 2.2.10 The Guaranteed Maximum Price shall include in the Cost of the Work only those taxes which are enacted at the time the Guaranteed Maximum Price is established.

 

§ 2.3 CONSTRUCTION PHASE

 

§ 2.3.1 GENERAL

 

§ 2.3.1.1 The Construction Phase shall commence on the Owner’s issuance of a Notice to Proceed for the Work contemplated in

this agreement.

 

§ 2.3.2 ADMINISTRATION

 

§ 2.3.2.0 The Construction Manager shall provide and maintain a management team on the Project site to provide contract administration and the Construction Manager shall establish and implement coordination and communication procedures between the Construction Manager, Owner and the Architect.

 

§ 2.3.2.1 Those portions of the Work that the Construction Manager does not customarily perform with the Construction Manager’s own personnel shall be performed under subcontracts or by other appropriate agreements with the Construction Manager. The Construction Manager shall obtain bids from Subcontractors and from suppliers of materials or equipment fabricated to a special design for the Work from the list previously reviewed and, after analyzing such bids, shall deliver such bids to the Owner and Architect. Unless the Owner agrees otherwise in writing, the Construction Manager shall obtain bids from at least three (3) separate Subcontractors for each site, foundation, plumbing, structural, electrical and mechanical Work, as well as from any other trade Work identified by the Owner or Architect to the Construction Manager in writing. The Owner will then determine with the advice of the Construction Manager and consultation with the Architect, which bids will be accepted. The Owner may designate specific persons or entities from whom the Construction Manager shall obtain bids; however, if the Guaranteed Maximum Price has been established, the Owner may not prohibit the Construction Manager from obtaining bids from other qualified bidders. The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection.

 

§ 2.3.2.2 If the Guaranteed Maximum Price has been established and a specific bidder among those whose bids are delivered by the Construction Manager to the Owner and Architect (1) is recommended to the Owner by the Construction Manager; (2) is qualified to perform that portion of the Work; and (3) has submitted a bid which conforms to the requirements of the Contract Documents without reservations or exceptions, but the Owner requires that another bid be accepted, then the Construction Manager may request that a change in the Work be issued to adjust the Contract Time and the Guaranteed Maximum Price which request shall not be unreasonably withheld by the Owner.

 

§ 2.3.2.3 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall conform to the payment provisions of Sections 7.1.8 and 7.1.9 and shall not be awarded on the basis of cost plus a fee without the prior consent of the Owner; however, early release packages may be awarded on a unit price amount plus fee basis to such trades as Architectural Precast and Glass/Window Wall systems with the Owner’s approval

 

§ 2.3.2.4 The Construction Manager shall schedule and periodically conduct coordination meetings at the Project site with all Subcontractors, the Owner, and Architect. The Construction Manager shall prepare and promptly distribute coordination meeting minutes. The Construction Manager shall attend periodic progress meetings that are scheduled and conducted by the Architect.

 

§ 2.3.2.5 Promptly after the Owner’s acceptance of the Guaranteed Maximum Price proposal, the Construction Manager shall prepare a schedule in accordance with Section 3.10 of A2O1TM_l997, including the Owner’s occupancy requirements.

 

§ 2.3.2.6 The Construction Manager shall provide monthly written reports to the Owner and Architect on the progress of the entire Work. The Construction Manager shall maintain a daily log containing a record of weather, Subcontractors working on the site, nu