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5.4. SR 05-21-2007 City of EI ~ River REQUEST FOR ACTION To Ci Council Agenda Section Administration Meeting Date May 21, 2007 Item Number 5.4. Prepared by Bill Maertz, Parks and Recreation Director Reviewed by Lori ohnson, Ci Administrator Reviewed by Item Description Consider Approval of Contract with RJM Construction to be Construction Manager as Constructor for the YMCA Project Action Requested Approve contract with RJM Construction to be construction manager as constructor for the Elk River YMCA Project. Background/Discussion A request for proposals for construction management services was sent out to a select list of well qualified, construction firms. Based on proposed fees and similar project experience three firms were selected for interviews. The interview panel consisted of YMCA staff and representatives, city staff, and Council Member Jerry Gumpbrey. The proposals from the three firms are as follows R M Construction Krauss Anderson Knutson Construction FEE 2.35% 2.5% 3.5% GENERAL CONDITIONS $344,100 $373,300 $447,150 Fee is based on ercenta eo construction cost. Genera! conditions are basic overhead items. Based on the interviews, price, and similar project experience, the interview panel unanimously recommends selecting RJM Construction as the construction manager as constructor for the Elk River YMCA. Similar RJM Construction projects include the Andover YMCA, Chaska Community Center, Plymouth Ice Center and the Rogers Community Arena. A complete list of RJM projects is included in the attached proposal. Financial Impact RJM Construction is proposing a fee of 2.35% of construction cost, and general conditions of $344,100. This was the lowest cost of the five proposals received. Attachments . Memo regarding a construction manager as constructor contract: Kennedy and Graven RJM Construction: Response to Request for Proposal Contract . . c: \Documents and Settings \imiller\Locat Settings \ Temporary Internet Piles\ OLK3E\ l1vfCA Construction Contract Action Requested Memo,doc Action Follow Up Motion by_ Second by _ Vote C:\Documents and Settings\jrniller\Lornl Settings\Temporary Internet Files\OLK3E\l:'MCA Construction Contract Action Requested Memo.doc Jmnes~.Strornrnen 470 US Bank Plaza 200 South Sixth Street Minneapolis MN 55402 & (612) 337-9233 telephone (612) 337-9310 fax jstronunen@kermedy-graven.com CHARTERED MEMORANDUM TO: Lori Johnson, City Manager FROM: Jim Strommen, Legal Counsel DATE: May 16, 2007 RE: Construction Contracts with RIM Construction INTRODUCTION This is a short memorandum highlighting certain elements of the Construction Manager Agreement and General Conditions we reviewed for the YMCA-City construction of a recreation center. The RIM-City Agreement contemplates a newly-developing type of contractual relationship between cities and construction managers ("CM"). It incorporates public bidding followed by assignment of owner-prime contractor contracts to the CM and a guaranteed maximum price ("GMP") committed to by the CM. In order to effectuate this type of relationship and benefits to the City, competitive bidding law requirements must be met. CONTRACT ELEMENTS This proposed agreement with RIM as construction manager ("CM") is not the traditional City-CM agreement for public improvement projects. It shifts the risk of the cost of the project to the CM by a GMP commitment and by allowing the CM to work directly with the prime contractors. This is a common method used in the private sector. The private sector, however, is not subject to the competitive bidding laws governing city public improvement projects. To address that issue, the City-CM contract and the general conditions governing the work by the contractors includes, among other things, as follows: 311328vl JMS ELl 85-6 1. The CM performs pre-construction phase services for the City in the same manner it would in the traditional CM model. 2. Multiple prime contract bids are submitted to the City for award (or rejection of all bids) establishing the cost of work. 3. The CM combines the cost of work with its CM fee which equals a GMP. The CM fee is discussed with City staff and known prior to the determination of GMP. 4. When GMP is agreed upon and the project is a go, the City assigns its contracts with the prime contractors to the CM. 5. The CM then assumes the duties of a contractor with more direct control over the work of the prime contractors, including direct performance of miscellaneous work not to exceed the minimum threshold for competitive bidding. 6. The owner pays the CM directly who is authorized to pay the prime contractors subject to proper performance of the work and other appropriate progress milestones. 7. The CM assumes responsibility to complete the job for the GMP, subject to change orders that may be requested by the City. As noted above, the City retains its traditional right and responsibility for a public project to submit competitive bids and award or reject as appropriate. The contractors are aware of the assignment right. The CM becomes more directly involved in working with the prime contractors than it is in the traditional CM -owner controlled contract with a city. The claimed benefit is a better value for cities through targeted, lower bids and direct CM control over the work. Time will tell. 311328vl JMS ELI 85-6 2 I . I I I I I~ I. I I I I I I I I I I I I CONSTRUCTION PREPARED FOR ELK RIVER COMMUNITY YMCA PROJECT OVERVIEW RJM Construction is pleased to be among the firms being considered for the Elk River Community YMCA project. We understand the City of Elk River is seeking a constructor to join their project team to provide cost estimating, constructability review, schedule management, bidding strategy/administration, and. in general lead the construction process to.deliver the project goals. BWBR Architects has been retained to provide design services for the new facility consisting of 57,730 SF of new construction including a field house and natatorium. In addition, we understand the YMCA and their representative, the LaSalle Group is part of the project team. ~ To RJM Construction. building a structure is not merely a succession of steps; a formula or a continuum of tasks resulting in a box. An on time, on budget box. We think differently. We. believe that "a building is not just a place to be. It is a way to be." In delivering that belief we look beyond the expressed wants and needs of the City of Elk River. We visualize your desire. We think about the bigger picture. How the project impacts your services, and is it strategi- cally aiigned with your long term goals. With efficient competence we let our thinking antici- pate, resolve, create, enhance, and do whatever it takes to deliver on the vision not represented on the blueprint. We believe we can best meet the City of Elk River's goals/needs because of the following: . We have proposed a construction team that is both experienced and competent in community center construction. This team has extensive experience with othe.r city's community centers. We have complet- ed several facilities with your team mem- bers BWBR, YMCA and the LaSalle Group. . We embrace collaboration with the project team from concept to completion in order to define the final project parameters and establish a Guaranteed Maximum Price. . Our ability to contribute to the identification of design and construction solutions that consider both short and long term life cycle costs is highly valued by our clients who operate similar facilities. . RJM, as a company, has a long history of on time, on budget deiivery for all of its projects. Our passion goes beyond the box, which makes us more than a construction company. Through smart, sophisticated, strategic thinking we will complete your project and deliver a rewarding construction experience that will stand the test of time. f President tLK RIVER COMMUNITY YMCA I ~ I 12 I I I I I I I I I I I I I I I I I I I RESPONSE TO REQUEST FOR PROPOSAL (CONTINUED) B.3) Project Team (continued) Brian Recker, Project Executive Brian Recker will be responsible for all contract administration, budget manage- ment and the project schedule. Brian will write the bid packages and administer the bidding and award process. Brian will also manage the project budget keeping the team abreast at all times of its status by means of personal meetings with the project team. Working with the entire project team he will also issue and manage the project schedule. Rick McKelvey, Project Manager Rick McKelvey's skills will be used to assist with the management of documen- tation and information flow. He will issue meeting minutes, coordinate RFI's, manage change estimates, and interact with the project manager and project superinten- dent on a daily basis. Rick's excellent com- munication skills will keep the entire project team informed of construction status dur- ing all phases of this project. Mike Houdyshell. Project Superintendent Mike Houdyshell will be responsible for the daily coordination of all on site construction. He will coordinate material EL.K RIVER COMMUNITY YMCA I ~I 14 RESPONSE TO REQUEST FOR PROPOSAL (CONTINUED) 0.1) Project Experience (continued) Chaska Community Center The project was finished on time, and the budget managed so well that several additional improvements were able to be incorporated. We are currently providing construction management services on our third consecutive project for the City of Chaska. Please refer to the project profile included in this response. Eden Prairie Community Center and Ball Fleld Expansion As part of their long range plan, the City of Eden Prairie Parks and Recreation Department is expanding their existing community center, adding a third sheet of ice, relocating a softball field and upgrading a baseball field. RJM was retained as the Construction Manager as Constructor to assist the Owner and design team with the complex budgeting . and integration of several projects with multiple sources of revenue. We recent- ly completed pre-construction services and are scheduled to break ground on April 16th with the $14,000,000 project. E.l) How do you assure qualified subcontractors? RJM Construction is providing construction services on continuous bases for communi- ties like Elk River. This experience has ELK RIVER COMMUNITY YMCA ) ~I 16 I I I I I I I I I I I I I I I I I I I RESPONSE TO REQUEST FOR PROPOSAL (CONTINUED) G.3) General Conditions Project General Conditions costs are affected primarily be the size and length of the project. These costs will be issued as small bid packages. $155,800 67,500 12,900 19,500 8,600 4,700 7,400 3,800 2,500 3,400 2,900 4,000 16,300 28,500 6.300 $344,100 Supervision Project Management Safety Director Trucking Temporary Utilities Temporary Sanitation Construction Dumpsters Site Office Printing, Postage, Delivery Temporary Controls Telephone and Fax Site Fence Consumables and Equipment General Clean-Up Safetv TOTAL G.4) Builders Risk Based on a $9,000,000 value, a 12 month schedule and typical community center construction systems, we can provide Builders Risk premium for an estimated cost of $9,800. G.5) Performance Bond Based on a project described for Builders Risk, RJM Construction can provide Performance and Payment Bonds for an estimated cost of $63.200. G.6) Equipment Rental Rates There will be very little equipment required for this project as the contractors will include in the cost of the work. However, should it be necessary for RJM to provide El.K RIVER COMMUNITY YMCA I ~ I Is I I I I r I I I I I I I I I RESPONSE TO REQUEST FOR PROPOSAL (CONTINUEO) K.ll Why your firm should be selected for this project. Beyond the delivery of our services we understand your need to have confi- dence in your constructor, to be a part of a collaborative team, and to have a sense of accomplishment at the end of the project. There are many reasons to choose a contractor. We believe that the. commitment to your success is the foundation for all. Extensive and Specific Experience -We understand the need to balance the relationship between the City of Elk River, the YMCA and the Community. -There is no learning curve, we have done this successfully several times. -We will offer multiple solutions to project requirements. The Strength of Our Project Team -Our Team has completed multiple community centers. -Each member has excellent communica- tion skills. -Our Team understands how to work with all the stake holders. - We become an integral part of your team, a virtual extension of your staff. Proven Performance -We have delivered every community faCility on time, on budget, with exceptional quality. -There is no substitute for a proven track record. . ELK-RIVE:R COMMUNITY YMCA I ~I 110 I I I PROFESSIONAL PROFILE I I RESPONSIBILITIES: I Bob Jossart entered the construction industry in 1973 as a general foreman who was responsible for multiple projects with a light commercial contractor. As a technical representative for a construction specialties and formwork company, he was responsible for design. estimating, and appiicatlon of concrete forming, shoring, and construction chemical systems. I I I Bob has held positions in estimating, field engineering, project engineering and project management on a diverse group of projects. His experience from project conception to completion includes preparation of budget estimates, value engineering. system cost analysis, subcontract negotiation and award, project administration. scheduling, cost control and general direction of field activities. I I I Bob's experience with NFL football stadiums, NBA arenas, and heavy construction has given him a thorough understanding of virtually every type of construction method. This experience will provide insight for the project team as decisions about cost and schedule are made. He has provided construction services under a variety of formats including competitive bid, cost plus fixed fee. construction management and owner representative. I I I I I I I ROBERT JOSSART President I ~I I I PROFESSIONAL PROFILE I RESPONSIBiliTIES: Rick McKelvey began his construction career with RJM Construction in 2002 as a project engineer while attending college at North Dakota State University. After graduation, Rick was hired as a fulHime project engineer and has since been promoted to Project Manager. As Project Manager with RJM Construction since 2004. Rick's responsibilities include contract administration. RFJ and submittal coordination and the general management of the project's daily activities. Rick excels at bringing positive leadership to help create an enjoyable construction experience for the entire project team. RICK MCKELVEY Project Manager I I I AN DOVER/YMCA COMMUNITY CENTER ~ I CONSTRUCTION Andover, Minnesota I The Andover/YMCA Community Center project was a joint venture with the City of Andover and the YMCA. RJM Construction served as an ice arena, a three.court field I pre-cast concrete. masonry and I I I I I I I I I I I I RJM COnstrur;tlon I 5455 Hwy 169 I Plymouth,. Minnesota I 55442 763/383-7600 I f8J( 7631383.7601 I bid fax 7631553-9670 For more information an this or any of our other projects, visit: www.rjmconstructlon.com I I I PLYMOUTH ICE CENTER ~I I I CONSTRUCTION Plymouth, Minnesota I The construction and renovation of the Plymouth Ice Arena involved coordinating the completion of several upgrades to the facility and the installation of a third sheet. while remaining conscientious of the I I I I I I I I I I I I RJM const.rud:kin I 5455 Hwy 169 I Plymcnrth. Minnesota I SS442 763/383-7600 I fax 763/383-7601 I bk1 fax 763/5S3-9670 For more /nformatiOll on thi~ or any of our otf>er projects, visit www.rjmeonstrudloru:om I I I ROGERS COMMUNITY ARENA ~ CONSTRUCTION I Rogers. Minnesota I The Rogers Community Arena includes seatIng for 540. varsity locker rooms, as well as a 3000 SF community room. The facility utilizes a two story lobby with seating and viewing on the upper level which Will~,~rve as The structures exterior incorporoates.,Q,! to the adjacent Rogers High School. I I I I I I I I I I I I I RJM Construction I 5455 Hwy 169 I Plymouth, Minnesota I 5544Z 763/383.760Q ! fax 763/383-7601 I bid f~ 763/553-9670 For more informatir:m on this or any of our other projects, visit: _w.rJmr;om;trur;tlon.com I I I APPLE VALLEY AQUATIC CENTER Apple Valley, Minnesota liP ! ! . , , . . , . CONSTRUCTION I RJM Construction served as prime contractor in conjunction with OUf pool contractor for the pool and water feature portIon of this facility. The project features a zero-depth recreation and a RJM ConstructlOfl t 5455 HwV 169 f Plymouth, Minnesota J 55442 763/383-7600 I fax 763/383-7601 I bid fax 763/553-9670 For more information on this or any of our other projects, II/sII: www.rJmcl;lnstructIOll.com I I I ICE MIDWEST ~ CONSTRUCTION I Overland Park, Kansas I Ice Midwest is a first-class indoor Ice facility that provides recreational and retail opportunities to the hockey and figure skating communities of the greater Kansas City area. The complex is part of a larger office and developme~.!_,~,~!~~,~?~,,~,~~,~~s!_js home to ",c:~::,~c",^c2'-':>;i':~':_:""i: ._-~. sheets, one studio rink. an aerobjc'ba'l~f~o-rn;-:-as;we.r the community's interest in organized "" I I I ~I I ~I I I I I I I I RJM Construction I 5455 HwV 169 I Plymouth, Minnesota I 55442 763/383-7600 I fax 763/383-7601 I bid fax 763/55~70 For more information on this or any of our other proj~ds, visit www,rJmconstructlon;com I CERTIFICATE OF LIABILITY INSURANCE Page 1 of 2 o 9/0":i200 6 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. ACORD", PRODUCER 877-945-7378 willis North America, Inc. 26 Century Blvd. P. O. Box 305191 Nashvill., T.H 372305191 INSURED INSURERS AFFORDING COVERAGE NAlC# R.3H Ccnstruction 5455 llwy 169 Ply.Duth, MN' 55442 INSURER A.; Zurich 1taericiiUl :rnS1U'aDC8 au: 16535.000 INSURERB:Amerie~ Guarantee and Liabilit Insuranc 26247-001 INSURER C: INSURER 0: INSURER E: THE POUCIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO lHE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NDlWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WllH RESPECT TO WHICH lHlS CERTlACATE MAY BE ISSUED OR MA Y PERTAIN, lHE INSURANCE AFFORDED BY lHE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL lHE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. _ TYPE,OFINSURANCE POUCYNUMBER ~EfFEC'T1VE P I A _!!..ENERALUASIUTV GL0372604804 9/1/2006 9/1/2007 X COMMERCIAl.G.ENERALUABILfTY I CLAIMS MADE [iJ OCCUR CANCELLATION llOHPAnamT/S'l'A'rtl'l'ORY SHOULD ANY OFTltE ABOVE DESCRIBED POUCIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIl.. ~ DAYS WR~ NOTICE TO THE CEFlTlFlCATE HOLDER NAMED TO THE LEFT, BUT FAlWRE TO DO SO SHALL IMPOSE NO OBUGATlON OR LIABILITY OF ANY KIND UPON THE INSURER,. ITS AGENTS OR REPRESENTATI AUTH COVERAGES '- B ~N'LAGGR~LIMIT AP~S PER: I POUCY I X I ~&'Ri I I LOC ..A.UTOUOBILE UABIUTV ..x ANY AUrO 9/1/2007 BAP372604904 9/1/2006 - - - - - ALl OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON-OWNEO AUTOS ~I!UABIUTY ~ ANY AUTO B EXCESS UABIUTY ~ OCCUR D CLAIMS MADE R DEDUCTIBLE RETENTION $ WORKERS COMPENSA'1'1ON AND EMPLOYERS' UABlUT"f ANY PROPRIETOFIIPARTNERlEXECUTIVE OFFICERlMEMBER EXCLUDED? ~~Ct'=~~~NSbeIOW OTHER AtlC927424305 9/1/2006 9/1/2007 A WCJ72604705 9/1/2006 9/1/2007 DESCFlIPTION OF OPEltA'1'1ON$ILOCA T1ONliiVB1lC1.EStCWSIONS ADDED BY ENDORSEMENTISPECIAL PROVISIONS Evidence of Covera.ge CERTlFlCA TE HOLDER S~le Certificate ..IIN ACORD 25 (2001108) Coll.O Tpl:536168 Cart.O' UMrrs EACH OCCURRENCE ~~t1,~.9"~ENre,g,oe\ MEDEXP (Anvoneoeraori) 1 ono ono 'on.nno 1n.noo l..OnO..Oon 2.000..000 2 ooo..onn $ $ $ $ $ PRODUCTS - COMPfQP AGG $ PERSONAL &.AOV INJURY GENERAl AGGREGATE COMBINED SINGLE LIMIT $ 1,000,000 (Eaaccldent) BODILY INJURY $ (Perperson) BODILY INJURY $ (PerBCCIdent) PROPERTY DAMAGE $ (PeraccJdent) AUTO ONLY -EAACCIOENT $ OTHEFl THAN EA ACe $ AUTO ONLY; AGO $ EACH OCCURRENCE $ .. nnn 000 AGGREGATE $ 6 oon.nnn $ $ $ x I ~N~Ws I IOlll" E.L EACH ACCIDENT S E.L. DISEASE - EA EMPLOYEE $ E.L. DISEASE. POLICY LIMIT $ 500,000 500 000 '00 000 I!:I ACORD CORPORATION 1988 I I I . I I I I I I I I I I I I I I I I 11.3 If your organization is a corporation. answer the following: S 1.3.1 Date of incorporation: 3/31/97 S 1.3.2 State of incorporation: Minnesota S 1.3.3 President's name: Robert J. Jossort S 1.3.4 Vice-president's name(s) Joseph J. Maddy S 1.3.5 Secretary's name: Joseph J. Maddy S 1.3.6 Treasnrer's name: Robert J. Jossart S 1.4 If yonr organization is a partnership, answer the following: S 1.4.1 Date of organization: S 1.4.2 Type of partnership (if applicable): S 1.4.3 Narne(s) of general partner(s) S 1.5 If yonr organization is individually owned, answer the following: S 1.5.1 Date of organization: S 1.5.2 Name of owner: S 1.6 If the form of yonr organization is other than those listed above, describe it and name the principals: S 2. LICENSING S 2.1 Ustjllrisdictions and trade categories in which yonr organization is legally qualified to do business, and indicate registration or license numhers, if applicahle. Federal EIN #41-1868150 Minnesota ill #3125130 Licensed in various Minnesota cities as required S 2.2 Ustjurisdictions in which yonr organization's partnership or trade name is filed. S 3. EXPERIENCE S 3.1 List the categories of work that yonr organization normally performs with its own forces. General Conditions Demolition Carpentry Masonry Repair Concrete Concrete Repair S 3.2 Clairns and Suits. (Jf the answer to any of the questions below is yes, please attach details.) S 3.2.1 Has yonr organization ever failed to complete any work awarded to it? No S 3.2.2 Are there any judgments, claims. arbitration proceedings or suits pending or outstanding against your organization or its officers? AlA Document A305T111 -1986. COpyright @ 1964, 1969, 1979 and 1966 by The Amertcan Institute of Architects. An rights reserved. WARNING: This AlAe Document Is protected by U.S. .Copyrlght Law and International Treaties. Unauthorized reproduction or distribution of this AlAe Document, or 2 any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent pO$Slble under the law. This document was produced by AlA software at 15:01:02 on 04lO3I2007 under Order No.1 000279691_1 which expires on 1/1612008, and is not for resale. User Notes: (1852122226) ""..~".. I 1 1 1 I I 1 1 1 1 I. I I I I I I I I ~ 4.3 Surety: ~ 4.3.1 Name of bonding company: Lynn Davis Safeco Surety Department 12100 Singletree Lane. Suite 130 Eden Prairie, MN 55344 952/746-1352 ~ 4.3.2 Name arid address of agent: Dennis Loots Willis 4000 Olson Memorial Highway #300 Minneapolis, MN 55422 763/302-7100 ~ 5. FINANCING ~ 5.1 Financial Slatement. ~ 5.1.1 Attach a financial slatement, preferably audited, including your organization's latest balance sheet and income statement showing the following items: Current Assets (e.g., cash, joint venture accounts, accounts receivable, notes receivable, accrued income, depnsits, materials inventory and prepaid expenses); Net Fixed Assets; Other Assets; Current Liabilities (e.g., accounts payable, notes payable, accrued expenses, provision for income taxes, advances, accrued salaries and accrued payroll taxes); Other Liabilities (e.g., capital, capital stock, authoriz.ed and outstanding shares par valnes, earned surplus and retained earnings). i 5,1,2 Name and address of firm preparing attached financial statement, and date thereof: Boo:tergRoach & Han.m, Pll.C 9800ShelardPmkway Suite if2lJl Minneapolis, MN 55441 763/277 -<EIJ3 i 5.1.31s the attached financial statement for the identical organization named on page one? Yes i 5.1 A If not, explain the relationship and financial responsibility of the organization whose financial statement is provided (e.g., parent-subsidiary). ~ 5.2 Will the organization whose financial slatement is attached act as guarantor of the contract for conslruCtion? Yes AlA Document A3051M -1986. Copyright @ 1964, 1009, 1979 and 1986 by The American Institute of Architects. Ali rlghls reserved. WARNING: This AlA'*' Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproductton or distribution of this AlAe Document, or any portton of it, may resull in severe civil and criminal penahles, and will be prosecuted to the maximum extent possible under the law. This document was produced by AlA software at 15:01:02 on 04lO3l2OO7 under Order No.1 000279691_1 which expires on 111&'2008, and is not for resale. User Notes: (1852122228} 4 ~'f I . ~!RUCTION AlA Document A305 Attachment "A' Contractor's Qualification Statement PROJECTS IN PROGRESS COMPo PROJECT NAME OWNER ARCHITECT CONTRACT % DATE AMOUNT COMP OS/24/07 Excelsior Office Building Excelsior Holdings, L. L.C Ankeny Kell Archfiects $3,012,500 90"k Dan Hessburg Steve Wohfford 651-294-0011 651-645-6806 06101/07 St Michael - Albertville Clinic Albertville Medical Offic HDRlJordan Archfiects, P. $3,000,000 75% Robert J. Jossart Don Roif 763-363-7600 651-291-2701 07/10/07 OPPA - Spine Rehab & Restrooms Orthopaedic Partners P A RJ Johnson Archfiecture & $109,667 20% Build Out Becky Anderson Robert Johnson 763-425-0177 04116/07 On-Sfie Clinic Addfiion - Northfield Cfiy of Northfield Mohagen/Hansen Architectu $4,415,700 95% Hospfial Dave Oliver Steve Oliver 507-646-1003 952-473-1985 06/15107 Chaska Communfiy Center, Lodge Cfiy of Chaska Ankeny Kell Archfiects $2,000,000 60% Addfiion Tom Redman Rick Mack 952-448-2851 651-645-6806 06101/07 Albertville Medical Build-<>ut Buffalo Clinic HDRlJordan Architects, P. $1,300,000 70% Linda Dircks Don Rolf 763-684-3677 651-291-2701 07/01/07 Suburban Imaging - Blaine Build Out Suburban Imaging. MMEC 1 Archfiects, Rego & Youngq $600,000 10% Jerry Board Paul Youngquist 763-792-1900 952-544-8941 06/15/07 . UMMC Unfi J - 5D/6A Remodel Fairview-University Medic BWBR Archfiects $2,138,531 50% (UofM #948-06-2028) John Marshall Jeffery Griesinger 612-273-9333 651-290-1899 04107/07 . Methodist Hospfial OR 21 Park Nicollet Heatlh SelV Ellerbe Becket $570,000 95% Robert Riesselman Bob Friddle 952-993-5103 612-376-2000 04/27/07 Robins, Kaplan, Miller & Ciresi - Robins Kaplan Miller Cire Wilson & Associates Arch; $1,036,883 70% 22nd Floor Tom Jacques David Wilson 612-349-8500 612.344-1975 April 03,2007 Projects In Progress...Page 1 I ~.....""~ I ~ AlA Document A305 I Attachment'S' Contractor's Qualification Statement I PROJECTS COMPLETED I COMPo FINAL DATE PROJECT NAME OWNER ARCHITECT CONTRACT I 08/31/03 Word of Peace Lutheran Church Word of Peace Lutheran Ch Sjoquist Architects, Inc. $3,450,000 Scott Anderson Mike Berg 763-428-2555 612-379-9233 I 09/30/02 PNHS Crystal Care Ring Road Park Nicollet Heatth Serv Sunde Engineering, Inc. $337,040 Harlan Nelson Mike Kettler I 952-993-3863 952-881-3344 08115/03 Radisson Road (CSAH 52), SP C. S. McCrossen, Inc. MNlDOT $505,000 9Q-080-11 CSM #1622 Randy Reiner I 763-425-4167 651-296-6101 .11/15102 Tires Plus - Champlin Market Place Tires Plus Reprise Design $817,063 I Tom Comstock Brian Johnson 651-690-5007 952-808-2606 I 05101/03 Sheet Metal Connectors Sheet Metal Connectors DJR Archttecture Inc. $2,700,000 Marty Wetzel scOtt Nelson 763-572-0000 612-352-0431 I 12/01/02 JItfy Lube - Plymouth Reliance Development Reprise Design $387,912 John TraUlz Brian Johnson I 612-338-1000 952-808-2606 02/07/03 Hays Companies Hays Companies Ellerbe Becket $1,493,927 I Stephen Lerum Karen Kjos 612-333-3323 612.376-2323 01/31/03 Northwest Family Physicians Northwest Family Physicia Skaaden-Helmes Archttects $437,548 I Mark Pottenger L. Scott Helmes 763-287-6500 612-339-9260 I 12/31/02 Jiffy Lube - Hastings Reliance Development RJM Construction $512,211 Vince Driessen John Patterson 612-336-1 000 763-383-7600 I 12/20/02 Rldgewood Church Remodel Ridgewood Church ArchRecls, Rego & Y oungq $649,590 John Buyert Paul Youngquist I 952-474-0858 952-544-8941 I April 03, 2007 Projects Completed ...Page 3 ~~IIIII'" II.bJ . CDNSTIl:UCTlOrd AlA Document A305 Attachment "a" Contractor's Qualification Statement ~".. ~1,Jl CONSTRUCTION AlA Document A305 Attachment 'B' Contractorls Qualification Statement PROJECTS COMPLETED COMPo FINAL DATE PROJECT NAME OWNER ARCHITECT CONTRACT 08130/05 YMCA Northlown - AddttionlRemodel YMCA of Metropolitan Minn BWBR ArchUects $1,133,077 Phil Nyvall Greg Fenton 612-465-0450 651-222-3701 02125/05 IRS (Internal Revenue Service) Zeller Realty Corporation Nelson Architects $1,949,140 Tom Erdman Cris Johnson 612-317-2903 612-822-121 1 02125105 IRS (Intemal Rev. Service) Landlord Zeller Realty Corporation Nelson ArcMects $322,473 Work Tom Erdman Cris Johnson 612-317-2903 612-822-1211 06/30/05 Northem Trust Bank Northem Trust Byrne Design, LLC $640,000 Helene Hamilton Seamus Bume 312-630-6000 312-944-9800 06101/05 PNHS HVC Retail Park Nicollet Health Serv Tanek Inc. $355,960 Robert Riesselman Ryan Haro 952-993-5103 612-998-8300 08101/05 Suburban Imaging - Coon Rapids Suburban Imaging - MMEC 1 Archttects, Rego & Youngq $750,000 Jerry Board Paul Youngquist 763-792-1900 952-544-8941 10/14/05 GSA Lease LMN17426 Base Management, LLC Walsh Bishop Associates, $400,000 Lauri Pierce Gillian Machacek 612-332-6300 612-276-3593 09130/06 Peters BlUiards Peters Billiards Archnet - The Archttactur $5,924,907 Greg Peterson Jim Kampmann 612-866-6433 65 1 -430-0606 07/01105 PNHS Meth. MMB E-215 Endoscopy Park Nicollet Heallh Serv Ellerbe Becket $340,000 (Digestive Center) Jim Holm Kim Gunther 952.993-6479 612-376-2100 11/30/05 TSI, Inc. TSI, Inc. 20 Below studio $939,746 Paul Girard Kevin Rolles 651-490-4073 612.378.2021 April 03, 2007 Projects Completed ...Page 11 I ~~ 1 I CONSTRUCTION AlA Document A305 I Attachment "S" Contractorls Qualification Statement I PROJECTS COMPLETED I COMPo FINAL DATE PROJECT NAME OWNER ARCHITECT CONTRACT I 10131/05 EV3 Uberty Property Trust WCL Associates, Inc. $564,815 Rick Weiblen Weld Ransom 952-947-1100 952-541-9969 I 03/17/06 Meagher & Gear Meagher & Geer 20 Below Studio $2,105,774 David Steinhauser Kevin RoHes I 612-338-0661 612-378-2021 12/15105 PNHS Bank Building 1 st Floor Lean Park Nicollet Health Serv Jordan Architects, P.A. $327,877 Renovation Jim Holm Don RoH I 952-993-6479 651-291-2701 03110/06 GSA Project - Tenant Work Zeller Really Group Nelson $1 ,536,495 I Tom Erdman Jenniler Frohm 612-317-2903 612-822-1211 I 04/14106 Methodist 2nd FI. ICU Renovation Park NlcoIlet Health Serv BWBR Archilects $485,000 Robert Rlesseiman Brad Krump 952-993-5103 651-290-1893 I "06/01/06 Orthopaedic Partners. Interior Build Out Orthopaedic Partners P A RJ Johnson Archilecture & $685,108 Becky Anderson Robert Johnson I .763-717-4100 763-425-0177 Hagen, Christensen & Mcll $1 ,468,744 05130106 Gyrus Medical Clean Room Remodel Gyrus Medical I Shelley Chase Olsen Roger Christensen 763-416-301 1 612-904-1332 08101/06 TSI, Phase 4 TSI Incorporated 20 Below Studio $710,000 I Paul Girard Kevin Rolfes 651-490-4073 612-378-2021 I 05/19/06 Ford and Harrison, LLP Ford and Harrison, LLP Baker Barrios Archilects $313,550 Pam Morris Diana Slmasn 404-868-3800 404-781-0155 I 12/15/06 Farmington - Family Health Medical CRy of Northfield MohagenlHansen Archltectu $2,537,000 Clinic Dave Oliver Steve Oliver I 507-646-1003 952-473-1985 I April 03, 2007 Projects Completed ...Page 13 BALANCE SHEET AS OF DECEMBER 31, 2006 . ASSETS . LIABILITIES Current Assets Other Assets $13,505,492 $568,117 Short Term Liabilities Long Term Liabilities $12.355,109 $390.250 $1.328.249 14,073,608 ~ SUPPLEMENTARY CONDITIONS #1 SUPPLEMENTARY CONDITIONS TO GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION AIA-A 201 ELECTRONIC VERSION 1997, BETWEEN OWNER THE CITY OF ELK RIVER AND CONTRACTOR (RJM CONSTRUCTION) MADE AS OF THE DAY OF ,2007 (the "AGREEMENT") (1997 Electronic Version) 1.1.1 Subparagraph; Line 7; After "Architect" add "pursuant to Paragraph 7.4.1." 1.1.2 Subparagraph; Line 6; After "Subcontractor" add "(except as provided in Paragraph 5.4 hereof)"; line 8; After "obligations" add "of Contractor". 1.5.2. Subparagraph; Delete in its entirety 1.5.2 and add in its place: Contractor represents and warrants to the Owner that Contractor (a) is experienced and skilled in the construction of structures and improvements of the type described in the Contract Documents, and (b) has, by careful examination, satisfied itself as to and has taken into account (i) the nature, location and character of the Project site, including, without limitation, the surface and subsurface (by review of available reports and information) condition of the land and all structures and obstructions thereon, both natural and man-made, and all surface and subsurface (to the extent reasonably identified by review of available reports and information) water conditions of the Project site and the surrounding area; (ii) the nature, location and character of the general area in which the Project site is located; and (iii) all other matters or things which, in the reasonable judgment of the Contractor, could in any manner affect the performance of the Work. 1.6.1 Subparagraph; Delete the first two grammatical sentences and substitute the following: The Drawings, Specifications, and other similar or related documents and copies thereof are furnished to the Contractor for the purpose of performing the Work and are, and shall remain, the property of the Owner. Beginning in Line 6; Delete: and other documents prepared by the Architect, and unless otherwise indicated the Architect shall be deemed the author of them and will retain all common law, statutory and other reserved rights, in addition to the copyright. All copies of them, except the Contractor's record set, shall be returned or suitably accounted for to the Architect, on request, upon completion of the Work. Doc# 230188111 and Add: and other similar or related documents, and Owner will retain all common law, statutory, and other reserved rights, in addition to the copyright (including, without limitation, the right to create derivative works therefrom). All copies of such documents shall be returned to the Owner upon Completion of the Work. Beginning in Line 11; Delete "and other documents prepared by the Architect" and add "and other similar or related documents"; Beginning in Line 16; Delete "and Architect and Architects consultants"; Beginning in Line 18; Delete "prepared by the Architect and Architects consultants"; Line 19; After "and" add "solely"; Beginning in Line 21; Delete "prepared by the Architect and Architects consultants" and add "any". 2.1.2 Subparagraph; Delete in its entirety. 2.2.1 Subparagraph; Delete in its entirety. 2.2.3 Subparagraph; Add at end: The furnishing of these surveys and the legal description of the site shall not relieve the Contractor from its duties under the Contract Documents in general and Subparagraphs 1.5.2 of the Supplementary Conditions and Subparagraphs 1.2.1 of the General Conditions in particular. Neither Owner nor the Architect shall be required to furnish Contractor with any information concerning subsurface characteristics or conditions of the areas where the Work is to be performed. When the Owner or Architect has made investigations of subsurface characteristics or conditions of the areas where the Work is to be performed, such investigations, if any, were made solely for the purposes of Owner's study and Architect's design. Neither such investigations nor the records thereof are a part of the Contract between Owner and Contractor. To the extent such investigations or the records thereof are made available to Contractor by the Owner, or Architect, such information is furnished solely for the convenience of Contractor. Neither Owner nor Architect assumes any responsibility whatsoever in respect of the sufficiency or accuracy of the investigations thus made, the records thereof, or of the interpretations set forth therein or made by the Owner or Architect in its use thereof, and there is no warranty or guaranty, either express or implied, that the conditions indicated by such investigations or records thereof are representative of those existing throughout the areas where the Work is to be performed, or any part thereof, or that unforeseen developments may not occur, or that materials other than or in proportions different from those indicated may not be encountered. The Contractor shall undertake such further investigations and studies as may be necessary or useful to locate existing utilities. In connection with the foregoing, Contractor shall be solely responsible for locating (and shall locate 31 1340vl JMS ELI 85-6 2 prior to performing any Work) all utility lines, telephone company lines and cables, sewer lines, water pipes, gas lines, electrical lines, including, without limitation, all buried pipelines and buried telephone cables and shall perform the Work in such a manner so as to avoid damaging any such lines, cables, pipes, and pipelines. 2.3.1 Subparagraph; Line 2; After-"or" delete "persistently"; Line 3; After "Documeuts" add "or fails or refuses to provide a sufficient amount of properly supervised and coordinated labor, materials, or equipment so as to be able to complete the Work within the Contract Time or disregards the instructions of Architect or Owner when based on the requirements of the Contract Documents". 2.4.1 Subparagraph; Beginning in Line 4; After "promptness" add "or fails within such seven- day period to eliminate (or diligently commence to eliminate) the cause of any stop work order issued under Subparagraph 2.3.1 hereof," and delete "the Owner may after such seven-day period give the Contractor a second written notice to correct such deficiencies within a three-day period. If the Contractor within such three-day period after receipt of such second notice fails to commence and continue to correct any deficiencies,"; and delete the fourth grammatical sentence beginning "Such action by the owner" in its entirety. 3.2.1 Subparagraph; Line I; Delete the second "the" and add the following "in addition to and not in derogation of Contractors' duties under Subparagraphs 1.5.2 and 1.2.1 hereof,"; Line 9; After "Architect: add "and Owner". 3 .2.1.1: Add the following Subparagraph If any errors, inconsistencies, or omissions in Contract Documents are recognized by the Contractor, any member of its organization, or any of its Subcontractors, the Contractor shall be responsible for notifying the Owner and Architect in writing of such error, inconsistency, or omission before proceeding with the Work. The Architect will take such notice under advisement and within a reasonable time commensurate with job progress render a decision. The Architect's decision shall be subject to Owner's approval. If Contractor fails to give such notice and proceeds with such Work, it shall correct any material errors, inconsistencies, or omissions that effect the performance of the work at no additional cost to the Owner. 3.2.3 Subparagraph; Line 8; After "unless" add "such errors, inconsistencies, omissions, or differences should reasonably been discovered by a prudeut and experienced contractor or"; Line 9; Delete "knowingly". 3.3.1 Subparagraph; Line 2; After "solely" add "(subject to the terms and provisions of Article 4 hereof)". 3] 1340v 1 lMS EL185-6 3 3.4.4: Add the following Subparagraph: Materials shall conform to manufacturer's standards in effect at the date of execution of the Agreement and shall be installed in strict accordance with manufacturer's directions. The Contractor shall, ifrequired by the Owner or Architect, furnish satisfactory evidence as to the kind and quality of any materials. All packaged materials shall be shipped to the site in the original containers clearly labeled, and delivery slips shall by submitted with bulk materials identifying thereon the source, and warranting quality and compliance with Contract Documents. 3.5.1 Subparagraph; Line 3 After "from" add "faults and"; and Line 9; After "by the" add "Owner or". And add the following Subparagraph: Warranties shall become effective on a date established by the Owner and Architect in accordance with the Contract Documents. This date shall be the Date of Substantial Completion of the entire Work, unless otherwise provided in any Certificate of Partial Substantial Completion approved by the parties." 3.5.2 Add the following Subparagraph: "Except when a longer warranty time is specifically called for in the Specification Sections or is otherwise provided by law, the General Warranty shall be for twelve (12) months and shall be in form and content otherwise satisfactory to the Owner." 3.5.3 Add the following Subparagraph: "Warranties shall become effective on a date established by the Owner and Architect in accordance with the Contract Documents. This date shall be the Date of Substantial Completion of the entire Work, unless otherwise provided in any Certificate of Partial Substantial Completion approved by the parties. " 3.7.3 Subparagraph; Line I; Add at beginning: "Subject to the other terms and conditions of these Supplementary Conditions and the General Conditions in general and Subparagraphs 1.5.2, and 1.2.1 in particular," and replace "It" with "it"; delete the entire second sentence and insert the following: "Should the Contractor become aware that any portion of the Contract Documents violate any applicable laws, statutes, ordinances, building codes, rules or rules and regulations, the Contractor shall promptly notify the Architect and Owner in writing, and necessary changes shall be accomplished by appropriate Modification." 3.8.3 Clause; Line 2; After "avoid" add "unreasonable". 3.14.2 Subparagraph; Line 4; After "with" add "prior"; and beginning in Line 5; Delete "; such consent shall not be unreasonably withheld". 311340vl JMS EL185.{i 4 3.18 Paragraph; Delete paragraph in its entirety (see our changes to Article II, Paragraph 11.6 of these Supplementary General Conditions). 4.1.3 Subparagraph; Line I; After "terminated, the," delete the balance of the Subparagraph and add: Owner may at any time employ or retain a licensed architect to perform all or any part of the duties respectively of the Architect hereunder or to exercise any of its rights hereunder. Owner shall notify all parties in writing (setting forth the scope of said replacement Architect's duties and responsibilities) prior to making this change. 4.2.1 Subparagraph; Beginning in Line 2; After "Documents" delete the balance of the first sentence ofthis Subparagraph. 4.2.2 Subparagraph; Line 2; After "operation" add "and the status of the Project"; and after "become" delete "generally"; Beginning in Line and into Line 4; After "Work" delete "completed"; Beginning in Line 5; Before "if' delete "in general"; and after "is" delete the balance of the first sentence and add "proceeding in accordance with the Contract Documents."; Beginning in Line 6; Delete the second sentence of this Subparagraph in its entirety; Beginning in Line 9; Delete "the construction means, methods, techniques, sequences or procedures, or for"; and beginning in Line 10; After "Work" insert a period "." and delete the balance of the Subparagraph and add: The Architect shall be responsible for promptly notifying the Owner of the failure of Contractor, Subcontractor, or any other person performing any of the Work, in failing to use proper construction means, methods, techniques, sequences, procedures, safety precautions and programs but only to the extent Architect become aware of, or should, exercising due professional diligence, be aware of same. The Architect shall also promptly notify Owner in writing of the failure of any of the foregoing parties to carry out the Work in accordance with the Contract Documents. The number of inspections required by the Architect may be further clarified in writing by the Owner and Architect. " 4.2.4 Subparagraph; Line 3; After "authorized" add "by the Owner"; Line 4; After "contract" add: provided, however, that Owner may instruct, correspond or negotiate with Contractor directly and in such event shall forward a copy of any writing to the Architect and shall advise the Architect of any significant instruction, correspondence, or negotiation and shall afford the Architect an opportunity to attend any formal discussions directly between Owner and Contractor, if appropriate. 311340v 1 JMS EL185-6 5 4.2.5 Subparagraph; Beginning in Line 1; After "evaluations of delete the balance of the Subparagraph and add "the progress and quality of the Work and Contractor's application for payment and of all other information available, the Architect shall review and, after consultation with the Owner, certify the amounts due Contractor." 4.2.6 Subparagraph; Line 3; After "have" add "the responsibility and"; Beginning in Line 2 After "Contract documents" add ", and shall do so unless, after consultation in each instance with the Owner, Owner instructs otherwise."; Line 2; After "advisable add "to insure the proper implementation of the language and"; Line 3; After "authority" add ", subject to the Owner's prior approval,"; and delete the last sentence ofthis Subsection. 4.2.7 Subparagraph; Line 1; After "will" add "promptly" and after "approve" add "or reject"; Beginning in Line 2; Delete "but only for the limited purpose of checking"; and delete the third and fifth sentences in their entirety. 4.2.8 Subparagraph; Add at end: "All Change Orders and Construction Change Directives shall require the approval of Owner in writing to be binding on Owner." 4.2.12 Subparagraph; Line 1; After "with the" add "language and"; Line 3; After "drawings" add ", as required by Owner" and after "such" add "initial"; and Line 4; After "Contractor," add "and" and delete everything after "either". 4.2.13 Subparagraph; Delete in its entirety. 4.3.2 Subparagraph; Line 3; After "recognizes" add ", or reasonably should have recognized,". 4.3.3 Subparagraph; Line 2; Delete "agreed" and add "directed by Owner"; Line 2; delete "Subparagraph 9.7.1 and". 4.4.1 Subparagraph; Beginning in Line 1; Delete ", including those alleging an error or omission by the Architect, shall" and add "may, upon request of both the Contractor and the Owner,"; and delete the second grammatical sentence in its entirety. 4.6,4.6.1,4.6.2,4.6.3,4.6.4,4.6.5 and 4.6.6; Delete all sections in their entirety 4.6 Add the following paragraph: 4.6 LITIGATION 4.6.1 Any Claim arising out of or relating to the Contract shall, after a decision by the Architect or thirty (30) days after submission of the Claim to the Architect, be subject an action in any court of competent jurisdiction." 5.2.1 Delete the last sentence. 5.2.3 Subparagraph; Delete the last two sentences in their entirety. 311340vl JMS ELl85-{; 6 5.3.1 Subparagraph; Beginning in Line 1; After "appropriate" add ''written'' and delete "written where legally required for validity,". 6.2.3 Subparagraph; Line I; Delete "The" and add: "Subject to Paragraph 8.3 hereof the," Line 3; Delete "The" and add "Subject to Paragraph 8.3 hereof the". 6.2.4 Subparagraph; At end of subparagraph delete period and add: "or to other completed or partially completed construction or property on the site or to property of any adjoining owner or other party." 7.1.2 Subparagraph; Line 4; Delete "alone" and add "and is subject to the approval of Owner." 7.3.6 Subparagraph: line 3, change the words "Architect" to "Owner". 7.4.1 Subparagraph; Line 1; After "authority" add ", subject to the approval of the Owner's representative in each instance,"; At the end of Line 3; After ''with the" add "language and". 8.1.3 Subparagraph; Line 3; After "Architect" add "and approved by the Owner". 8.2.2 Subparagraph; Line 1; Delete "knowingly". 8.3.1 Subparagraph; Line 3; After "Work" delete the balance ofthe Subparagraph and add: or by occurrences beyond the control and without the fault or negligence of the Contractor and which by the exercise of reasonable diligence the Contractor is unable to prevent or provide against, including labor disputes (other than disputes limited to the work force of, or provided by, the Contractor or its Subcontractors), fire, unusual delay in deliveries not reasonably able of anticipation, unavoidable casualties, or by other occurrences which the Architect, subject to the Owner's approval, determines may justify delay, then, provided that the contractor is in compliance with Subparagraph 4.7.3 hereof, the Contract Time shall be extended by Change Order or Construction Change Directive for the length of time actually and directly caused by such occurrence as determined by the Architect and approved by the Contractor and Owner (such approval not to be unreasonably withheld, delayed, or conditioned); provided, however, that such extension of Contract time shall be net of any delays caused by or due to the fault or negligence of the Contractor or which are otherwise the responsibility of the Contractor and shall also be net of any contingency or "float" time allowance included in the Contractor's construction schedule. The Contractor shall, in the event of any occurrence likely to cause a delay, cooperate in good faith with the Architect and Owner to minimize and mitigate the impact of any such occurrence and do all things reasonable under the circumstances to achieve this goal. 311340vl JMS ELl85-6 7 9.3.3 Subparagraph; Delete in its entirety and substitute the following: The Contractor warrants and agrees that title to all Work will pass to the Owner either by incorporation in the construction or upon the receipt of payment therefor by the Contractor, which ever occurs first, free and clear of all liens, claims, security interests, or encumbrances whatsoever, that the vesting of such title shall not impose any obligations on Owner or relieve Contractor of any of its obligations under the Contract, that the Contractor shall remain responsible for damage to or loss of the Work, whether completed or under construction, until responsibility for the Work has been accepted by Owner in the manner set forth in the Contract Documents, and that no Work covered by an Application for Payment will have been acquired by the Contractor, or by any other person performing Work at the site or furnishing materials and equipment for the Project, subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the Contractor or such other person. 9.4.2 Subparagraph; Line 2; After "and" add "on all other information available to the Architect including, without limitation,"; Beginning in Line 5; After "Documents" delete period and add "and that all lien waivers and certificates required under the Contract Documents have been furnished to the Architect in proper form."; Delete the second sentence of the Subparagraph in its entirety and add "The foregoing representations are subject to specific qualifications stated by the Architect in the Certificate For Payment.". 9.5.1.6 Clause; Line 2; Delete "and" and add "or". 9.5.1.7 Clause; Line 1; Delete "persistent". 9.6.1 Subparagraph; Add at end: The Owner may withhold payment if it reasonably believes that the Architect has issued a Certificate for Payment in error, but only such part of the amount certified for payment the Owner reasonably believes to be in error may be withheld from payment. In such case, Owner, Contractor and Architect shall meet within 10 days to try to reach agreement regarding the amount withheld from payment. Furthermore the Owner may refuse to make payment on any Certificate for Payment for any default of the Contract, including, but not limited to those defaults set forth in Clauses 9.5.1.1 through 9.5.1.7. The Owner shall not be deemed in default by reason of withholding payment while any of such defaults remain uncured. 9.7.1 Subparagraph; Line 2; After "if' add "subject to the payment of undisputed amounts pursuant to the provisions of Section 9.6.1." 9.8.1 Subparagraph; Line 2; After "thereof' add "(which the Owner agrees to accept separately)". 311340vl JMS ELlSH 8 9.8.3 Subparagraph; Line 2; After ''thereof' add "(which the Owner agrees to accept separately). 9.8.4 Line I; After "thereof' add "(which the Owner agrees to accept separately)"; and Line 7; After "thereof' add "(which the Owner agrees to accept separately)". 9.8.5 Subparagraph; Line 4; After "thereof' add "(which the Owner agrees to accept separately)" . 9.10.5 Subparagraph; Line 3; After "unsettled" delete balance of subparagraph and add "on payee's final Application for Payment. Such waivers shall be in addition to the waiver described in Subparagraph 9.10.4". 9.11 Add the following Subparagraph: Withholding Taxes: No final payments shall be made to the Contractor until Contractor has provided satisfactory evidence to the Owner that Contractor and each of its Subcontractors has complied with the provisions of Minn. Stat. S 290.92 relating to withholding of taxes upon wages. A certificate by the Commissioner of Revenue shall satisfy this requirement. 9.12 Add the following Subparagraph" Payment to Subcontractors: The Contractor shall pay any Subcontractor within ten (10) days of the Contractor's receipt of payment from the City for undisputed services provided by the Subcontractor. The Contractor shall pay interest of one and one-half percent (II %) per month or any part of a month to a Subcontractor on any undisputed amount not paid on time to the Subcontractor. The minimum monthly interest penalty payment for an unpaid balance of $100.00 or more is $10.00. For an unpaid balance ofless than $100.00, the Contractor shall pay the actual amount due to the Subcontractor." 10.2.3 Subparagraph; Beginning in Line 2; Delete "reasonable" and add "all necessary". 10.3.3 Subparagraph; Delete in its entirety. 10.6.1 Subparagraph; Line 4: After "4.3" add ", Paragraph 8.3,". 11.4.7 Subparagraph; Beginning in line 1: At the beginning add "Except as otherwise provided herein," and at the end of the paragraph, add the following: "Notwithstanding the above, Owner does not waive its rights to subrogate against (1) contractor, any of its subcontractors, sub-subcontractors, agents or employees, or (2) the Architect, Architect's consultant, separate contractors described in Article 6, if any, or any of their subcontractors, sub- subcontractors, agents or employees, for damages caused to non- Proj ect related property, real or personal or both, at or adjacent to the site of the Project, caused by the negligent, intentional or other willful act or omission of the (1) contractor, any of its subcontractors, sub-subcontractors, agents or 311340vl JMS ELl85-6 9 employees, or (2) the Architect, Architect's consultants, separate contractors described in Article 6, if any, or any of their subcontractors, sub- subcontractors, agents or employees." 11.6 Add the following Subparagraph: INDEMNIFICATION 11.6.1: To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless Owner, Owner's elected officials and employees, Architect and the directors, officers, shareholders, employees and agents of any of the above mentioned parties (the "Indemnified Parties") from and against any and all loss, cost, expense, damage, injury, liability, claim, demand, penalty or cause of action (including attorneys' fees), directly or indirectly arising out of, resulting from or related to (in whole or in part), (1) the Work performed hereunder, (2) the Contract or (3) the act or omission of Contractor, a Subcontractor or any individual, partnership, joint venture or corporation (a) directly or indirectly employed by Contractor or a Subcontractor or (b) for whose acts or omissions Contractor or a Subcontractor may be liable (excluding property damage to the Work itself, covered by the Owner's all- risk builder's risk insurance, subject to Contractor's liability for any deductible amount thereunder). The obligations of Contractor under this indemnification shall apply to all matters except those arising from acts or omissions of Owner and its invitees in connection with the continued use during construction of the building being renovated and expanded pursuant to the Contract or except those arising from the gross negligence of Owner. Further, the obligations of Contractor under this indemnification shall not extend to the liability of the Architect, their agents or employees, arising out of (1) the preparation or approval of maps, Drawings, opinions, reports, surveys, Change Orders, designs or Specifications or (2) the giving of or the failure to give directions or instructions by the Architect, their agents or employees provided such giving or failure to give is the provided such giving or failure to give is the primary cause of the injury or damage. Contractor shall promptly advise Owner in writing of any action, administrative or legal proceeding or investigation as to which this indemnification may apply, and Contractor, at Contractor's expense, shall assume on behalf of Owner and conduct with due diligence and in good faith the defense thereof with counsel satisfactory to Owner; provided, that Owner shall have the right to be represented therein by advisory counsel of its own selection and at its own expense; and provided further, that if the defendants in any such action include both Contractor and Owner and Owner shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to, or inconsistent with, those available to Contractor, Owner shall have the right to select separate counsel to participate in the defense of such action on its own behalf at Contractor's expense. In the event of failure by Contractor to fully perform -in accordance with this indemnification paragraph, Owner, at its option, and without relieving Jl1340vl JMS EL185-6 10 Contractor of its obligations hereunder, may so perform, but all costs and expenses incurred by Owner in that event shall be reimbursed by Contractor to Owner, together with interest on the same from the date any such expense was paid by Owner until reimbursed by Contractor, at the rate of interest provided to be paid on judgments, by the law of the jurisdiction to which the interpretation of the Contract is subject. The obligations of Contractor under this Section shall survive the expiration of the Contract. 12.1.1 Subparagraph; Line 4; After "rime" add "or Contract Sum". 12.2.1.1 Subparagraph; Line 1; After "Architect" add ", incomplete, defective"; Line 4; After "such" add "defective or otherwise" 12.2.2.1 Subparagraph; Line 2; After "of the" add "entire"; after 'Work" delete "or designated portion thereof, or after the date for commencement of warranties established under Subparagraph 9.9.1,"; add "(unless otherwise provided in any Certificate of Partial Substantial Completion approved by the parties), or within such longer period of time as may be prescribed by law or in equity,"; End of Line 4, After "to be" add "defective or otherwise"; Line 8, After second "condition." insert "by the Owner."; delete the next sentences and add: This corrective period shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between substantial Completion and the actual performance of the Work. Corrective Work shall be warranted to be free from defects for a period equal to the longer of six (6) months after the completion of the corrective Work or one (I) year after the Date of Substantial Completion (subject to extension as previously described) or such longer period of time as may be prescribed by law or in equity, or expiration of the term of any applicable special warranty, if applicable, required by the Contract Documents. Any defect in such Work shall be corrected again by Contractor promptly upon notice of the defect from the Owner. This obligation under this subparagraph 12.2.2.1 shall survive acceptance of the Work under the Contract and termination of the Contract. 12.2.3 Subparagraph; Line I; After "are" add "defective or otherwise". 12.2.4 Subparagraph; Line 2; After "caused" add "in whole or in part"; and Line 3 After "is" add "defective or otherwise". 12.2.5 Subparagraph; Line 3; After "Documents" delete the period and add "or under law equity.", and delete "of one year". 12.3.1 Subparagraph; Line 1; After "is" add "defective or otherwise". 13.3.1 Subparagraph; Delete in its entirety and substitute the following: 311340v1 JMS ELl 85-6 11 All notices to be given hereunder shall be in writing, and may be given, served or made by depositing the same in the United States mail addressed to the authorized representative (as specified in Subparagraph 13.3.2 hereof) of the party to be notified, postpaid and registered or certified with return receipt requested or by delivering the same in person to the said authorized representative of such party, or by delivered via telegraph or facsimile to a location or number designated by such party, followed by mailed notice as provided above. All notices to be given to the parties hereto shall be sent to or made at the addresses set forth herein below. By giving the other parties at least seven (7) days' written notice thereof, the parties hereto shall have the right to change their respective addresses and specify as their respective addresses for the purposes hereof any other address in the United States of America. .1 Address of Owner: City of Elk River 13065 Orono Parkway Elk River, MN 55330 .2 Address of Contractor: RJM Construction 5455 Highway 169 N Plymouth, MN 55442 .3 Address of Architect: BWBR Architects, Inc. Lawson Commons 380 St. Peter Street, Suite 600 Saint Paul, MN 55102-1996 13.3.2: Add the following Subparagraph: The parties hereby designate and appoint the following persons, whose addresses are as designated in Subparagraph 13.3.1 hereof, as their representatives, respectively, to receive all notices and communications hereunder and, to the extent of their obligations hereunder, to act for them in all respects .1 For Owner: Bill Maertz, Parks and Recreation Director .2 For Contractor: Robert Jossart .3 For Architect: Greg Fenton, Project Manager 311340v1 JMS EL185.,; 12 Either party may designate from time to time, by appropriate written notice to the other as provided for in Subparagraph 13.3.1 hereof, other or additional representatives." 13.5.6 Subparagraph; Line 2; Delete "unreasonable". 13.7 Paragraph; Delete in its entirety and substitute the following: 13.7 PAYMENT OF COSTS AND FEES 13.7.1 The prevailing party, in connection with any legal action between Contractor and Owner based upon a breach of contract or other dispute arising out of or in connection with the Contract, shall be entitled to recover from the other party its costs and reasonable attorneys' fees incurred in connection with such legal action. 13.8 Add the following Subparagraph: Hiring 13.8: Contractor agrees: .1 that in the hiring of common or skilled labor for the performance of the Work, Contractor shall not, by reason of race, creed, age, sex, religion, national origin, marital status, status with respect to public assistance, disability, age or sexual preference, discriminate against persons who are citizens of the United States or resident aliens who are qualified and available to perform the work to which the employment relates; .2 that Contractor shall not, in any manner, discriminate against or intimidate or prevent the employment of any persons identified in .1 of this subparagraph, or on being hired, prevent, or conspire to prevent persons from the performance of work under any Contract on account of race, creed, age, sex, religion, national origin, marital status, status with respect to public assistance, disability, age or sexual preference; 13.9 Add the following Subparagraph: Audits: 13. 12 The books, records, documents and accounting procedures and practices of the Contractor or other parties relevant to this Agreement are subject to examination by the Owner and either the Legislative Auditor or the State Auditor as appropriate. 13.10 Add the following Subparagraph: Data Practices Act Compliance: 13.13 The Contractor shall at all times abide by Minn. Stat. S 13.01 et seq., the Minnesota Government Data Practices Act, to the extent the same is applicable to data and documents in the possession ofthe Contractor." 13.11 Add the following Subparagraph: Worker's Compensation: 13.14 Contractor represents and warrants that it has and will maintain during the performance of this agreement worker's compensation insurance coverage required pursuant to Minn. Stat. S 176.181, subd. 2 and that the certificate of 311340vl JMS ELl 85-6 13 insurance or the written order of the Commissioner of Commerce permitting self insurance of worker's compensation insurance coverage provided to the Owner prior to execution of this Agreement is current and in force and effect. 13.12 Add the following Subparagraph: Conflicts: 13.15 16 No salaried officer or employee of the Owner and no member of the Commission shall have a financial interest, direct or indirect, in this Agreement. The violation of this provision renders the Agreement void. Any federal regulations and applicable state statutes shall not be violated. 13.13 Add the following Subparagraph: Limitation of Remedies: 13 .17 Neither party shall be entitled to recover punitive damages in the event of a breach of the Agreement. 14.1.1.4 Clause; Delete in its entirety. 14.1.3 Subparagraph; Delete in its entirety and substitute the following: If one of the above reasons exists through no act or fault of the Contractor, a subcontractor, or a sub-subcontractor, their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, the Contractor may, upon fourteen (14) days' written notice to the Owner and Architect, terminate the Contract, unless this reason is cured prior to the expiration of the notice period, and recover from the Owner payment of Work properly executed in accordance with the Contract Documents (the basis for such payment shall be as provided in the Contract) and for payment for costs directly related to Work thereafter performed by Contractor in terminating such Work including reasonable demobilization and cancellation charges provided said Work is authorized in advance by Architect and Owner. 14.1.4 Subparagraph; Delete in its entirety and substitute the following: "The Owner shall not be responsible for damages for loss of anticipated profits on Work not performed on account of any termination described in Subparagraphs 14.1.1 and 14.1.2." 14.2.1.1 Clause; Line I; Delete "persistently or repeatedly"; After "materials" add "or equipment"; 14.2.1.2 Clause; Line I; After "materials" add "and/or equipment"; 14.2.1.3 Clause; Line I; Delete "persistently"; and Delete first "or"; 14.2.1.4 Clause; Delete in its entirety and add "disregards the instructions of Architect or Owner (when such instructions are based on the requirement of the Contract Documents);"; and add the following two Clauses: 311340vl JMS ELl85-6 14 .5 is adjudged a bankrupt or insolvent, or makes a general assignment for the benefit of Contractor's creditors, or a trustee or receiver is appointed for Contractor or for any of its property, or files a petition to take advantage of any debtor's act, or to reorganize under bankruptcy or similar laws; or .6 otherwise does not fully comply with the Contract Documents. 14.2.2 Subparagraph; Beginning in Line 1, after "Owner" delete ", and upon certification by the Architect that sufficient cause exists to justify such action,"; Line 4; After "seven" add "(7)"; and , after "notice" delete the balance of the Subparagraph and substitute the following: "(except in cases of emergency as reasonably determined by Owner), terminate the services of the Contractor and may,"; ".1 take possession of the site and Project and of all materials, equipment, tools and construction equipment and machinery thereon owned, rented, or leased by the Contractor, .2 accept assignment of Subcontracts pursuant to Paragraph 5.4; and .3 finish the Work by whatever method the owner may deem expedient." 14.2.3 Subparagraph; Add at the end: The Owner may withhold from any final payment due the Contractor such amounts as are incurred or expended by the Owner on account ofthe termination of the Contract." 14.2.4 Subparagraph; Delete in its entirety and substitute the following: To the extent the costs of completing Work, including compensation for additional professional services and expenses, exceed those costs which would have been payable to Contractor to complete the Work except for Contractor's default, Contractor will pay the difference to Owner, and this obligation for payment shall survive termination of the Contract. Such costs incurred by Owner will be determined by the Owner and confirmed by the Architect. 311340v 1 JMS EL185-6 15 @ AlA Document Document 565 A12r"CMc 2003 Standard Form Manager where the Conotruction assiqns its riqhts Construction of Agreement Between Owner Jil[o.no.ger io 0.100 the Contracts the for under Manaqer in the year (In words, indicate day, month and year) BETWEEN the Owner: (Name and address) Ci1;yQfl3l~Riy_er and the Construction Manager: (Name and address) RJM Construction 5455 Highwav 169 1'1ymouth MN~ The Project is: (Name, address and brief description) EllcRiveI_Re"cre.!;ltion Center The Architect is: (Name and address) The Owuer and Construction Manager agree as set forth below: and AGC and Construction 11 Coi~,tructor Owner th (! ir..rorkt;o..t.'a e ADDITIONS AND DELETIONS: Tl-le :author!,,,o,f this document he:.s iaddedJ'in-Eormation m~ed'ed fo 1 ifs completion. The :author; mj3.y also have , :: r~~vil~e~ t~e F~~=,_~:~;:,,~,he o~~igi,;;~r"'AIA--;s't-andardi form. AIl;--Aaa1y:rI5-i'iifw-~-fier-"lJelE!"tions Report that notes ado.i=d ,/?' I information ~_::l__;_:.rftbll_ ~s revisions ",;1:'15 the/::;-c-~dard fo~"te-~~_-_j"JY''JaVr-ilable from tl:f'e,,'21:b'ilor anti ~hould be r~\Y_~':~~-~_'_;___"""".".,j i This docum~~t h~~rnportant """ " legal consequ~Thq~s, Consultation with"-'a'lL~ att~~;I1,AY,_"i~ encour_alJ'~d with re,S1'Pe<::,~",_,~.~~'''~ t S/Qd~P~Bt ion o:r;: rnC)difisat.:,i,on. ,/"" J " - Tl:'le li19 9 7 E:~i t,ion of AlA D~c~ment Aho. I General ~::~c'~:~~::l:L:~~~:~tr act r~'_f~l;l;;~g_.J;Q~iJ;tc",_+hiB Agreement requires modif i~jl_td;-en'"-1_f_;,,pther gen71O'.3:l '7_2ng.A~~ons .are ut:/lip~'d'. --. ELECTRONIC COPYING of any portion of this AIA~ Document to another electronic file is prohibited and constitutes a violation of copyright laws as set forth in the footer of this document. AlA Doeument A121~CMe _ 2003 and AGe Document 565. Copyright ~ 1991 and 2003 by The American Institute of Architects and The ASsociated General Contractors of America. All rights reserved. WARNING. This document is protected by u.s. Copyright Law and International Treaties. unauthori:<Eld rElproduction or distribution of this doeueent. or any portion of it, may result in severe civil and criminal 1 penalties, and will be pro6eeuted to the maximum e~tent possible under the law. This draft was produced by AlA software at 0.fh-o-'hl'B-lh3.1_,.J,.& on 1;l',,@I3-1.~.Q/2007 under Order No.'l;}O'i:l25c;.'l2.-9-1~J1j}.~1.1(;i.~l_1 which expires on .9-/~:3/]007'1/'J..RL2g_t!.~.~ and is not for resale. User Notes. - -- (3-&:t"'0-66e'6-s-')...:te.~12.!_96 9.6.1 TABLE OF CONTENTS ARTICLE 1 GENERAL PROVISIONS Ii 1.1 Relationship of the Parties Ii 1.2 General Conditions ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES Ii 2.1 Preconstruction Phase Ii 2.2 Guaranteed Maximum Price Proposal and Contract Time Ii 2.3 Construction Phase Ii 2.4 Professional Services Ii 2.5 Hazardous Materials ARTICLE 3 OWNER'S RESPONSIBILITIES Ii 3.1 Information and Services Ii 3.2 Owner's Designated Representative Ii 3.3 Architect Ii 3.4 Legal Requirements ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES Ii 4.1 Compensation Ii 4.2 Payments ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES Ii 5.1 Compensation Ii 5.2 Guaranteed Maximum Price Ii 5.3 Changes in the Work ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE Ii 6.1 Costs to Be Reimbursed Ii 6.2 Costs Not to Be Reimbursed Ii 6.3 Discounts, Rebates and Refunds Ii 6.4 Accounting Records ARTICLE 7 CONSTRUCTION PHASE Ii 7.1 Progress Payments Ii 7.2 Final Payment ARTICLE 8 INSURANCE AND BONDS Ii 8.1 Insurance Required of the Construction Manager Ii 8.2 Insurance Required of the Owner Ii 8.3 Performance Bond and Payment Bond ARTICLE 9 MISCELLANEOUS PROVISIONS Ii 9.1 Dispute Resolution Ii 9.2 Other Provisions ARTICLE 10 TERMINATION OR SUSPENSION Ii 10.1 Termination Prior to Establishing Guaranteed Maximum Price Ii 10.2 Termination Subsequent to Establishing Guaranteed Maximum Price Ii 10.3 Suspension ARTICLE 11 OTHER CONDITIONS AND SERVICES ARTICLE 1 GENERAL PROVISIONS !i 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 an expeditious and economical manner consistent with the interests ofthe 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. !i 1.2 GENERAL CONDITIONS For the Construction Phase, the General Conditions of the contract shall be the AIA@ Document A20 1"'-1997, 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, A20jTM-1997 shall apply to the Preconstruction Phase only as specifically provided in this Agreement. The term tlContractortl as used in A201TM....-1997 shall mean the Construction Manager. ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager shall perform the services described in this Article. The services to be provided under Sections 2.1 and 2.2 constitute the Preconstruction Phase sernces. 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. !i 2.1 PRECONSTRUCTlON PHASE !i 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. !i 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. !i 2.1.3 PRELIMINARY PROJECT SCHEDULE When Proj ect 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. !i 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. !i 2.1.5 PRELIMINARY COST ESTIMATES !i 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 oftbe 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. ~ 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 ofthe Construction Documents, the Construction Manager shall update and refme this estimate at appropriate intervals agreed to by the Owner, Architect and Construction Manager. ~ 2.1.5.4 If any estimate submitted to the Owner exceeds previously approved estimates or the Owner's budget, the Construction Manager shall make appropriate recommendations to the Owner and Architect. ~ 2.1.6 PRIME CONTRACTORS AND SUPPLIERS The Construction Manager shall seek to develop Prime Contractor interest in the Project and shall furnish to the Owner and Architect for their information a list of possible mnltillle Prime Contractors, 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 Prime Contractor or supplier. The receipt of such list shall not require the Owner or Architect to investigate the qualifications of proposed Prime Contractors or suppliers, nor shall it waive the right of the Owner or Architect later to object to or reject any proposed Prime Contractor or supplier _ ~ 2.1.7 LONG.LEAD.TlME ITEMS The Construction Manager shall recommend to the Owner and Architect a schedule for procurement oflong-Iead- 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 oflong-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 Gnaranteed 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. ~ 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 9 2.2.1 When the Drawings and Specifications are sufficiently complete, and comnetitive hids are sllhmitted, the Construction Manager shall propose a Guaranteed Maximum Price, which shall be the sum of the estimated Cost of the Work and the Construction Manager's Fee, ~ 2.2.2 As the Drawings and Specifications may not be fnlished 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. ~ 2.2.3 The estimated Cost of the Work shall include the Construction Manager's contingency, a sum established by the Construction Manager for the Construction Manager's exclusive use to cover costs arising under Section 2.2.2 and other costs which are properly reimbursable as Cost of the Work but not the basis for a Change Order. ~ 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. ~ 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 discover any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjusttnents 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. ~ 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. I. 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 adjusttnent 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 agreed-upon assumptions and clarifications. ~ 2.2.10 The Guaranteed Maximum Price shall include in the Cost of the Work only those taxes which are enacted at the time the Guaranteed Maximum Price is established. ~ 2.3 CONSTRUCTION PHASE ~ 2.3.1 GENERAL ~ 2.3.1.1 The Construction Phase shall commence on the earlier of:( I) the!.!R\1!) Owner'~s acceptance of the Construction Manager~) Guaranteed Maximum Price prepesalPronosal and Q.~er's issuance of a-Notice to Proceed;;-Qf R-l----tho OWflers first aothorizatiofl to the Con'fmetioll Hllaager to: (a) 3'.\3Id a Gubeontract, or (h) ""deffalee "o""traetion "'-ork with the CoRStrH"tioaManag.r's own lorees, or (e) is,",. a purehase order for materials or equipFA:ellt reEfl::lirea fef the \VOIle. ~ 2.3.2 ADMINISTRATION ~ 2.3.2.1 Those peltio",: of the V' orlc thut tb€ COIwtrection Manager aoes net <lIGto_rily perform wkh the ConstruNion Manager's awn personnel shall he pOTformed under slIbeoRlraetG or by o!her ""propriat. agreements 'Akh the Canstruction Manager. The Construction Manager shall obtain bids frem S1lllGoRlractors and from "'"pliers -ef.Prime Contracts and am-cements with sunnliers furnishin2" materials or equipment fabricated to a special design for the Work from tbe list pre,,-iollsly reviewed and, atter analyzing slleh bids, ,ball deliyer 'lieh bids-to the OW1ler and Architect. The Owner will th"" deteonine, with tbe ad...ietHJftlle Construetie.e HallagOT and ,..eject t&tlle reaGonaBle aBjectioll aflbe /\rchitect, 'lihie" bids Vim he accej>lcd. The Owner nlaj' aeeignate specitic personG or entities frem '"'halll the Constr'.!ction Manager shall obtain bids~bowe"-er, ifllle Guarantoed Maximum Price hus heell estahlisbed. the OTHer may Hot prohibit !he COHGtr,lctioe Manager f~om ohtainiHg hias fmm otber qualilied hiaaer... Tile CollGtrHctioH Manager shnlHlet be required te coRlract '1, ith anyone te whom the Co",otruetioe Manager ha, rea.;",,""le "ejection. ~~.Jfffie.-G"iHanteed MOJdmnlll PriGe ha" been established and a specific bidder among Ibose v'llese Ioias are deli.,.ered by the CO".;tnletion Manager t<l tile Ow"er and ,A.white"! (I) is reeemmen(~ed t8 tile OV.""er Ioy the CoestrHotion Manager; (2) is qualifieat8perfarm that portien of the Worl,; and (3) has submitted a hid which c0nforms to the requirements of the CeI:ttfaet DeeHmeflt: .,,;i.thout f0~:erYatiom; or c;(ceptiol1s, hat the O':,-ner requires th.at uoothcr bid be accepted, tliea the C8aSl'l'Hetlen .Manager may require that a change in ~he -\\'er1~ be issued to adjHsl!he CORtra.: Time ""d the Guar-anteea !.1a"im.lllPrice 10) ilie difti.,renoe het."..n the bid "fthe person or en~ity recommended to the OV.'IU~r by the CeRs~rneti0n ~1ana;er and the ~...mOlJ.Rt of the s::JbeOilt1'aet aT other agreGJ'Rent actually signed ',,'ith the per.;on or entity designatea h)' ilie Owncr.g 2.3.2.3 S1lllcontraet.J and agreement: with suppliers furniGhing materials or equipnl€n: fahrieated 10 a ""ecia! deGign shall conform to Ibe payment provisions of Sections 7.1.8 and 7.1.9 ana ,hall not be [!'\'Braed on ilie basis ofeoG: pl..s a fee without the prior consont of the O.,;neLIJ.,.2.< 92.3.2.4& 2.3.2.2 The Construction Manager shall schedule and conduct meetings at which the Owner, Architect, Construction Manager and appropriate Subcontractors can discuss the stalus of the Work. The Construction Manager shull prepare and promptly distribute meeting minutes. ~ ~2.3.2.3 Promptly after Ibe Owner's acceptance of Ibe Guaranteed Maximum Price proposal, the Construction Manager sball prepare a schedule in accordance with Section 3. I 0 of A20l "L 1997, including the Owner's occupancy requirements. ~ ~2.3.2.4 The Construction Manager shall provide monlbly written reports to Ibe Owner and Architect on the progress of tbe entire Work. The Construction Manager shall maintain a daily log containing a record of weatber, Subcontractors working on the site, number of workers, Work accomplished, problems encountered and other similar relevant data as Ibe Owner may reasonably require. The log shall be available to the Owner and Architect. ~ ~2.3.2.5 The Construction Manager shull develop a system of cost conlrol for Ibe Work, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. The Construction Manager shull identify variances between aclual and estimated costs and report Ibe variances to tbe Owner and Architect at regular intervals. Sk:l.2.6li,,!\vitlr~t~1l<lillg,~1l}'lhil1&. to the contra~herein,alLc,onlracts for the constmction "ffueW ork shaUbe comnetitivelv bid and award bY.fue.Q.'Yllex.P\ll'sll~nt to IVlinnesotaStatutes Section47l 345 TheiJi4<!,)cuments ~hall inform all hidders that O'Mler has the ri2ht to reiect some or all bids and the ripht to assiQu to Construction ManaQ:er all contracts for the Wark. At the time the_Q.W!l_~.,.~~_(;~nts the .Glla.ranteed Maximum Price nursual!ttQ 82326 Owner shall assign the contracts bv senarate a!Ireement to the Construction Manager who shall then assume the rit:rhts and ohli9ations of the "Contractor" in AlA Docump.nts A201 ™ - 1997. ~ 2.4 PROFESSIONAL SERVICES Section 3.12.10 of A201 T~1997 shall apply to bolb Ibe Preconstruction and Construction Phases. ~ 2.5 HAZARDOUS MATERIALS Section 10.3 of A201T~1997 shall apply to bolb the Preconstruction and Construction Phuses. ARTICLE 3 OWNER'S RESPONSIBILITIES 9 3.1 INFORMATION AND SERVICES 93.1.1 The Owner shall provide full infonnation in a timely manner regarding the requirements of the Project, including a program which sets forth the Owner's objectives, constraints and criteria, including space requirements and relationships, flexibility and expandability requirements, special equipment and systems, and site requirements. 93.1.2 The Owner shall, at the written request of the Construction Manager prior to commencement of the Construction Phase and thereafter, furnish to the Construction Manager reasonable evidence that fmancial arrangements have been made to fulfill the Owner's obligations under the Contract. Furnishing of such evidence shall be a condition precedent to commencement or continuation of the Work. After such evidence has been furnished, the Owner shall not materially vary such financial arrangements without prior notice to the Construction Manager. 93.1.3 The Owner shall establish and update an overall budget for the Project, based on consultation with the Construction Manager and Architect, which shall include contingencies for changes in the Work and other costs which are the responsibility of the Owner. 9 3.1.4 STRUCTURAL AND ENVIRONMENTAL TESTS, SURVEYS AND REPORTS In the Preconstruction Phase, the Owner shall furnish the following with reasonable promptness and at the Owner's expense. Except to the extent that the Construction Manager knows of any inaccuracy, the Construction Manager shall be entitled to rely upon the accuracy of any such information, reports, surveys, drawings and tests described in Sections 3.1.4.1 through 3.1.4.4 but shall exercise customary precautions relating to the perfonnance of the Work, Provided however Owner does not 9"uarantee the accuracy of information nrovicleci reQ"ardimz nTivate utility ~ocations_ 9 3.1.4.1 Reports, surveys, drawings and tests concerning the conditions of the site which are required by law. 93.1.4.2 Surveys describing physical characteristics, legalliruitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal infonnation shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All infonnation on the survey shall be referenced to a project benchmark. 9 3.1.4.3 The services of a geotechnical engineer when such services are requested by the Construction Manager. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate professional recommendations. 9 3.1.4.4 Structural, mechanical, cheruical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections and reports which are required by law. 93.1.4.5 The services of other consultants when such services are reasonably required by the scope of the Project and are requested by the Construction Manager. 93.2 OWNER'S DESIGNATED REPRESENTATIVE +lle-Owner shall designate in writing aan.Qwner's representative woo cllaH hlWe-{))'Press authority to bind U1e O\PHer ....'itll re::,.peet to all matters~0quiriflf the O'.Yl1,er's appre':al or autherizati-on. This. represeHtativB sha]] haye t-he authority to melee deuis1:0HS--Hll behalf of the O'l.'uer cElfleeraifl& ec.timat8s .and sehed:.lles, eeHstructicm budge-ts-;-atld chan!;:0s in the '.vork,and-shaU render such decisiElfls premptly and furnish infermatiCtH e;tfleditiously, so as ta--aveid unreasonable delay in the services or \Vork oft.he Ceastftl\2tion J\hRager. EKeept as othef'.?:ise provided in,Seetien '1.2.1 of ,UOITM J 997, the-Arcll;teet does not have ouch alltllerity",ith authority to make dav-to,d.~v decision~ re2"ardin,gJhe Work inG1IJdinRnannroval offield directives and minor chanl!es_in the Work Chanl!e orderS..J!.Jl.d Con~tmction Cham!e Directive_~_shalln~guire aonroval of the Elk River CitY,..CQJJncil unles~ authori~ is otherwis.e. deleQaled bv the Council. The.Q.wner'S.representative shall be fhllv acouaint.e.d..with the Project and shall furnish th..e.infurmation ang. services regyjred."Q,[t.he...O\VTIer so as not to ImreasonablLd.elav the Cons-mIction ryianaQer's Services and/or the V{ qrk. If the O_wne.r.,.GhatHte.sjts renresentative the Owner ,5_balLnotifv the Construction MaJ)a.,g~.r in advance in writi!ll! of such cha.J},g~. ~ 3,3 ARCHITECT The Owner shall retain an Architect to provide Basic Services, including normal structural, mechanical and electrical engineering services, other than cost estimating services, described in tbe edition of AIA@ Document B IS I nL 1997, Abbreviated Standard Form of Agreement Between Owner and Architect current as of the date of this Agreement. The Owner shall authorize and cause the Architect to provide those Additional Services described in B 151 T"'-1997, requested by the Construction Manager which must necessarily be provided by the Architect for the Preconstruction and Construction Phases of the Work. Such services shall be provided in accordance with time schedules agreed to by the Owner, Architect and Construction Manager. Upon request ofthe Construction Manager, the Owner shall furnish to the Construction Manager a copy of the Owner's Agreement with the Architect, from which compensation provisions may be deleted. ~ 3.4 LEGAL REQUIREMENTS The Owner shall determine and advise the Architect and Construction Manager of any special legal requirements relating specifically to the Project which differ from those generally applicable to construction in the jurisdiction of the Project. The Owner shall furnish such legal services as are necessary to provide the information and services required under Section 3,1. ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES The Owner shall compensate and make payments to the Construction Manager for Preconstruction Phase services as follows: ~4.1 COMPENSATION ~ 4.1.1 For the services described in Sections 2.1 and 2.2, the Construction Manager's compensation shall be calculated as follows: ~r~gonstruction Servicg,~ a lumn sum (State basis of compensation, whether a stipulated sum, multiple of Direct Personnel Expense, actual cost, etc, Include a statement of reimbursable cost items as applicable.) ~ :4.1}c:?~ensation for Preconstruction Phase Services shall be equitably adjusted if such services extend beyond (illll1ii1it:lo':', ) days from the date of this Agreement or if the originally contemplated scope of services is significantly modified, ~ 4.1.3 If compensation is based on a multiple of Direct Personnel Expense, Direct Personnel Expense is defined as the direct salaries ofthe Construction Manager's personnel engaged in the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits. ~ 4.2 PAYMENTS ~ 4.2.1 Payments shall be made monthly following presentation of the Construction Manager's invoice and, where applicable, shall be in proportion to services performed. ~ 4.2.2 Payments are due and payable ( ':Jll!I'i:1 ) days from the date the Construction Manager's invoice is received by the Owner. Amounts unpaid and not re.~~9ga.1>Iv in dispute after the date on which payment is due shall bear interest at the rate entered below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. (Insert rate of interest agreed upon.) 12% per annum (Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations at the Owner's and Contractor's principal places afbusiness, the location of the Project and elsewhere may affect the validity of this provision. Legal advice should be obtained with respect to deletions or modifications, and also regarding requirements such as written disclosures or waivers.) ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES The Owner shall compensate the Construction Manager for Construction Phase services as follows: ~ 5.1 COMPENSATION ~ 5.1.1 For the Construction Manager's performance of the Work as described in Section 2.3, the Owner shall pay the Construction Manager in current funds the Contract Sum consisting of the Cost of the Work as defined in Article 670 and the Construction Manager's Fee determined as follows: A lumn snm as shown iIltl1.e.9:l\IlP oronosal defined in Article 2.2.4 and amendIlle.lll.No. I dated. (State a lump sum, percentage of actual Cost of the Work or other provision for determining the Construction Manager's Fee, and explain how the Construction Manager's Fee is to be adjustedfor changes in the Work.) ~ 5.2 GUARANTEED MAXIMUM PRICE ~ 5.2.1 The sum of the Cost of the Work and the Construction Manager's Fee are guaranteed by the Construction Manager not to exceed the amount provided in Amendment No.1, subject to additions and deductions by changes in the Work as provided in the Contract Documents. Such maximum sum as adjusted by approved changes in the Work is referred to in the Contract Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Construction Manager without reimbursement by the Owner. (/n:.:SYI :;ptf':j~C p':"() ','isions ~(thc Cens:'Plw:ien },J..anat;eris fO ps.r:icip3.~C h:; any .~'.x"i;}gs.) 100% of the savin.s that maybeJ:~.alize<l in the Cost ofthe WQrk accrue to the Owner 5..2.2 The Guaranteed Maximum Price is $ e~_~cuted followin2" receint of Prime Contractor hids.. as.~hown on Amendment No.1 to be detenrriIl~d and ~ 5.3 CHANGES IN THE WORK ~ 5.3.1 Adjustruents to the Guaranteed Maximum Price on account of changes in the Work subsequent to the execution of Amendment No. 1 maybe determined by any ofthe methods listed in Section 7.3.3 of A201ThL1997. ~ 5.3.2 In calculating adjustments to Prime Contracts (except those awarded with the Owner's prior consent on the basis of cost plus a fee), the terms "costn and "fee'1 as used in Section 7.3.3.3 of A20I Tl\L1997 and the terms llcostsll and "a reasonable allowance for overhead and profit" as used in Section 7.3.6 of A201ThLI997 shall have the meanings assigned to them in that document and shall not be modified by this Article 5. Adjustments to Prime Contracts awarded with the Owner's prior consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those Prime Contracts. ~ 5.3.3 In calculating adjustments to the Contract, the terms "cost" and "costs" as used in the above-referenced provisions of A201T"--1997 shall mean the Cost of the Work as defined in Article 6 of this Agreement, and the term "and a reasonable allowance for overhead and profit" shall mean the Construction Manager's Fee as defined in Section 5.1.1 of this Agreement. ~ 5.3.4 Ifno specific provision is made in Section 5.1.1 for adjustment ofthe Construction Manager's Fee in the case of changes in the Work, or if the extent of such changes is such, in the aggregate, that application of the adjustruent provisions of Section 5.1.1 will cause substantial inequity to the Owner or Construction Manager, the Construction Manager's Fee shall be equitably adjusted on the basis of the Fee established for the original Work. ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE ~ 6.1 COSTS TO BE REIMBURSED ~ 6.1.1 The term "Cost of the Work" shall mean costs necessarily incurred by the Construction Manager in the proper performance of the Work. Such costs shall be at rates not higher than those customarily paid at the place of the Project except with prior consent of the Owner. The Cost of the Work shall include only the items set forth in this Article -&-6. and ~:hall not be 8.l::'(3lie&tin~ Dr other C~)sts efthe \J/ork or cost; included in tl1e C13flstrnotioH A{ana;er'~; Fee, anEl o!l.ll "at ."e.eEl ~50,000.00. & 6.1.1.1 The C:onstlllction Manag~r.'.~_ Fee.~~1.I.Ilot be duolieative...Qf the Cost of Work an<ttl1e Cost of Work oerforrned directlv bv the C:onstructio.n I\:1."-Il"-ll,,!shall not exeeed.Eiftv Thousand Dollars (l~.o,OOO.OOj,Ho'NeTIL this dQ.U~rJi:mit.does not annlv to General Conditions wor~ .9!J9__work w,ith resnect to which_th..~.".G.9J).struGliQn MaJl~Jl"r..sllbmits a bida!!lLisJhe aualified low bidder 96.1.2 LABOR COSTS .1 Wages of construction workers directly employed by the Construction Manager to perform the constrnction of the Work at the site or, with the Owner's agreement, at off-site workshops. .2 Wages or salaries of the Construction Manager's supervisory and administrative personnel when stationed at the site with the Owner's agreement-;- and necessID__!9,..~alTV out._the Work directly hv Constmction Manag"r,Rll!~~nt to 66,1.2. I, Classification Name (IJ it is intended that the wages or salaries oj certain personnel stationed at the Construction Manager's principal office or offices other than the site office shall be included in the Cost oj the Work, such personnel shall be identified below) .3 Wages and salaries of the Construction Manager's supervisory or administrative personnel engaged, at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time required for the W orkdirectly performed bv Construction ManaQer. .4 Costs paid or incurred by the Construction Manager for taxes, insurance, contributions, assessments and benefits required by law or collective bargaining agreements, and, for personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided that such costs are based on wages and salaries included in the Cost of the Work under Sections 6.1.2,1 through 6.1.2,3, 9 6.1.3 PRIME CONTRACT COSTS Payments made by the Construction Manager to Prime Contructors in accordance with the requirements of the Contracts for the Work. 96.1.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION .1 Costs, including transportation, of materials and equipment incorporated or to be incorporated in the completed construction. .2 Costs of materials described in the preceding Section 6,1.4,1 in excess of those actually installed but required to provide reasonable allowance for waste and for spoilage. Unused excess materials, if any, shall be handed over to the Owner at the completion of the Work or, at the Owner's option, shall be sold by the Construction Manager; amounts realized, if any, from such sales shall be credited to the Owner as a deduction from the Cost of the Work. 96.1.5 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED ITEMS .1 Costs, including transportation, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily owned by the constrnction workers, which are provided by the Construction Manager at the site and fully consumed in the performance ofthe Work; and cost less salvage value on such items if not fully consumed, whether sold to others or retained by the Construction Manager. Cost for items previously used by the Constrnction Manager shall mean fair market value. .2 Rental charges for temporary facilities, machinery, equipment and hand tools not customarily owned by the constrnction workers, which are provided by the Construction Manager at the site, whether rented from the Construction Manager or others, and costs of transportation, installation, minor repairs and replacements, dismantling and removal thereof. Rates and quantities of equipment rented shall be subject to the Owner's prior approvaL .3 Costs of removal of debris from the site, .4 Reproduction costs, costs oftelegrarns, facsimile transmissions and long-distance telephone calls, postage and express delivery charges, tel<:phone at the site and reasonable petty cash expenses of the site office. .5 That portion of the reasonable travel and subsistence expenses of the Construction Manager's personnel incurred while traveling in discharge of duties connected with the Work. 96.1.6 MISCELLANEOUS COSTS .1 That portion directly attributable to this Contract of premiums for insurance and bonds. (If charges for self-insurance are to be included, specifY the basis of reimbursement.) .2 Sales, use or similar taxes imposed by a governmental authority which are related to the Work and for which the Construction Manager is liable. .3 Fees and assessments for the building permit and for other permits, licenses and inspections for which the Construction Manager is required by the Contract Documents to pay. .4 Fees of testing laboratories for tests required by the Contract Documents, except those related to nonconforming Work other than that for which payment is permitted by Section 6.1.8.2. .5 Royalties and license fees paid for the use of a particular design, process or product required by the Contract Documents; the cost of defending suits or claims for infringement of patent or other intellectoal property rights arising from such requirement by the Contract Documents; payments made in accordance with legal judgments against the Construction Manager resulting from such suits or claims and payments of settlements made with the Owner's consent; provided, however, that such costs of legal defenses, judgment and settlements shall not be included in the calculation of the Construction Manager's Fee or the Guaranteed Maximum Price and provided that such royalties, fees and costs are not excluded by the last sentence of Section 3.17.1 of A20I"L1997 or other provisions of the Contract Documents. .6 Data processing costs related to the Work .7 Deposits lost for causes other than the Construction Manager's negligence or failure to fulfill a specific responsibility to the Owner set forth in this Agreement. .8 Legal, mediation and arbitration costs, other than those arising from disputes between the Owner and Construction Manager, reasonably incurred by the Construction Manager in the performance of the Work and with the Owner's written permission, which permission shall not be unreasonably withheld. .9 Expenses incurred in accordance with Construction Manager's standard personnel policy for relocation and temporary living allowances of personnel required for the Work, in case it is necessary to relocate such personnel from distant locations. ~ 6.1.7 OTHER COSTS .1 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the Owner. ~ 6.1.8 EMERGENCIES AND REPAIRS TO DAMAGED OR NONCONFORMING WORK The Cost of the Work shall also include costs described in Section 6.1.1 which are incurred by the Construction Manager: .1 .2 In taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property, as provided in Section 10.6 of A20I Tb'--1997. In repairing or correcting damaged or nonconforming Work executed by the Construction Manager or the Construction Manager's Subcontractors or suppliers, provided that such damaged or nonconforming Work was not caused by the negligence or failure to fulfill a specific responsibility to the Owner set forth in this agreement ofthe Construction Manager or the Construction Manager's foremen, engineers or superintendents, or other supervisory, administrative or managerial personnel of the Construction Manager, or the failure of the Construction Manager's personnel to supervise adequately the Work of the Subcontractors or suppliers, and only to the extent that the cost of repair or correction is not recoverable by the Construction Manager from insurance, Subcontractors or suppliers. ~ 6.1.9 The costs described in Sections 6.1.1 through 6.1.8 shall be included in the Cost of the Work notwithstanding any provision of AlA or A201 "L1997 other Conditions of the Contract which may require the Construction Manager to pay such costs, unless such costs are excluded by the provisions of Section 6.2. ~ 6.2 COSTS NOT TO BE REIMBURSED ~ 6.2.1 The Cost of the Work shall not include: .1 Salaries and other compensation of the Construction Manager's personnel stationed at the Construction Manager1s principal office or offices other than the site office, except as specifically provided in Sections 6.1.2.2 and 6.1.2.3. .2 Expenses of the Construction Manager's principal office and offices other than the site office, except as specifically provided in Section 6.1. .3 Overhead and general expenses, except as may be expressly included in Section 6.1. .4 The Construction Manager's capital expenses, including interest on the Construction Manager's capital employed for the Work. .5 Rental costs of machinery and equipment, except as specifically provided in Section 6. 1.5.2. .6 Except as provided in Section 6.1.8.2, costs dne to the negligence of the Construction Manager or to the failure of the Construction Manger to fulfill a specific responsibility to the Owner set forth in this Agreement. .7 Costs incurred in the performance of Preconstruction Phase Services. .8 Except as provided in Section 6.1.7.1, any cost not specifically and expressly described in Section 6.1. .9 Costs which would cause the Guaranteed Maximum Price to be exceeded. ~ 6.3 DISCOUNTS, REBATES AND REFUNDS ~ 6.3.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the Owner if (I) before making the payment, the Construction Manager included them in an Application for Payment and received payment therefor from the Owner, or (2) the Owner has deposited funds with the Construction Manager with which to make payments; otherwise, cash discounts shall accrue to the Construction Manager. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Coustruction Manager shall make provisions so that they can be secured. ~ 6.3.2 Amounts which accrue to the Owner in accordance with the provisions of Section 6.3.1 shall be credited to the Owner as a deduction from the Cost ofthe Work. ~ 6.4 ACCOUNTING RECORDS ~ 6.4.1 The Construction Manager shall keep full and detailed accounts and exercise such controls as may be necessary for proper [mancial management under this Contract; the accounting and control systems shall be satisfactory to the Owner. The Owner and the Owner's accountants shall be afforded access to the Construction Manager's records, books, correspondence, instructions, drawings, receipts, Prime rnntraets purchase orders, vouchers, memoranda and other data relating to this Project, and the Construction Manager shall preserve these for a period of three years after final payment, or for such longer period as may be required by law. ARTICLE 7 CONSTRUCTION PHASE ~ 7.1 PROGRESS PAYMENTS ~ 7.1.1 Based upon Applications for Payment submitted to the Architect by the Construction Manager and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents. ~ 7.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows: ~ 7.1.3 Provided an Application for Payment is received by the Architect not later than the daJ::~ month, the Owner shall make payment to the Construction Manager not later than the day of the _ month. If an Application for Payment is r~5~ive~,?t,the Architect after the application date fixed above, payment shall be made by the Owner not later thani'iOi.'l!1hil-iMiii ( I_III) days after the Architect receives the Application for Payment. ~ 7.1.4 With each Application for Payment, the Construction Manager shall submit payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached and any other evidence required by the Owner or Architect to demonstrate that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or exceed (I) progress payments already received by the Construction Manager; less (2) that portion of those payments attributable to the Construction Manager's Fee; plus (3) payrolls for the period covered by the present Application for Payment. ~ 7.1.5 Each Application for Payment shall be based upon the most recent schedule of values submitted by the Construction Manager in accordance with the Contract Documents. The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Construction Manager's Fee shall be shown as a single separate item. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless objected to by the Architect, shall be used as a basis for reviewing the Construction Manager's Applications for Payment. ~ 7.1.6 Applications for Payment shall show the percentage completion of each portion ofthe Work as of the end of the period covered by the Application for Payment. The percentage completion shall be the lesser of (I) the percentage oftliat portion of the Work which has actually been completed or (2) the percentage obtained by dividing (a) the expense which has actually been incurred by the Construction Manager on account of that portion of the Work for which the Construction Manager has made or intends to make actual payment prior to the next Application for Payment by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. ~ 7.1.7 Subj ect to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: .1 Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute may be included as provided in Section 7.3.8 of A20 jT"-1997, even though the Guaranteed Maximum Price has not yet been adjusted by Change Order. Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work or, if approved in advance by the Owner, suitably stored off the site at a 1,~.:ation t~e~d uR,9~ in writing. Add the Construction Manager's Fee, less retainage of.,,:., (,IIIIIIIIIIIillii.". ). The Construction Manager's Fee shall be computed upon the Cost of the Work described in the two preceding Sectious at the rate stated in Section 5.1.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Sectiou, shall be an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the two preceding Sections bears to a reasonable estimate of the probable Cost of the Work upon its completion. Subtract the aggregate of previous payments made by the Owner. Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by Section 7.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Owner's accountants in such documentation. Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Section 9.5 of A201""-1997. .2 .3 .4 .5 .6 ~ 7.1 :~.E"::mt ",itllme rior approval, payments to Subcontractors shall be subj ect to retention of not less than iilllli"ili;"""ll...cent", ( . mil ). The Owner and the Construction Manager shall agree upon a mutually acceptable procedure for review and approval of payments and retention for Prime Contracts. ~ 7.1.9 Except with the Owner's prior approval, the Construction Manager shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. ~ 7.1.10 In taking action on the Construction Manager's Applications for Payment, the Architect shall be entitled to rely on the accuracy and completeness of the information furnished by the Construction Manager and shall not be deemed to represent that the Architect has made a detailed examination, audit or arithmetic verification of the documentation submitted in accordance with Section 7.1.4 or other supporting data, that the Architect has made exhaustive or continuous on-site inspections or that the Architect has made examinations to ascertain how or for what purposes the Construction Manager has used amounts previously paid on account of the Contract. Such examinations, audits and verifications, if required by the Owner, will be performed by the Owner's accountants actiug in the sole interest of the Owner. ~ 7.2 FINAL PAYMENT ~ 7.2.1 Final payment shall be made by the Ownerto the Construction Manager when (I) the Contract has been fully performed by the Construction Manager except for the Construction Manager's responsibility to correct nonconforming Work, as provided in Section 12.2.2 of A20IT"-1997, and to satisfy other requirements, ifany, which necessarily survive fmal payment; (2) a fmal Application for Payment and a final accounting for the Cost of the Work have been submitted by the Construction Manager and reviewed by the Owner's accountants; and (3) a final Certificate for Payment has then been issued by the Architect; such fmal payment shall be made by the Owner not more than 30 days after the issuance of the Architect's final Certificate for Payment, or as follows: ~ 7.2.2 The amount of the final payment shall be calculated as follows: .1 Take the sum of the Cost of the Work substantiated by the Construction Manager's final accounting and the Construction Manager's Fee, but not more than the Guaranteed Maximum Price. .2 Subtract amounts, if any, for which the Architect withholds, in whole or in part, a fmal Certificate for Payment as provided in Section 9.5.1 of A20 I ""- 1997 or other provisions of the Contract Documents. .3 Subtract lbe aggregate of previous payments made by lbe Owner. If lbe aggregate of previous payments made by lbe Owner exceeds lbe amount due lbe Construction Manager, lbe Construction Manager shall reimburse lbe difference to lbe Owner. ~ 7.2.3 The Owner's accountants will review and report in writing on lbe Construction Manager's final accounting within 30 days after delivery oflbe fmal accounting to lbe Architect by the Construction Manager. Based upon such Cost of lbe Work as lbe Owner's accountants report to be substantiated by lbe Construction Manager's final accounting, and provided lbe olber conditions of Section 7.2.1 have been met, the Architect will, wilbin seven days after receipt of the written report of the Owner's accountants, either issue to the Owner a final Certificate for Payment with a copy to lbe Construction Manager or notify lbe Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided in Section 9.5.1 of AZO 1""--1 997 . The time periods stated in this Section 7.2 supersede lbose stated in Section 9.4.1 of A201nL1997. ~ 7.2.4 If lbe Owner's accountants report lbe Cost of lbe Work as substantiated by lbe Construction Manager's final accounting to be less lban claimed by lbe Construction Manager, lbe Construction Manager shall be entitled to proceed in accordance with Article 9 without a further decision oflbe Architect. Unless agreed to olberwise, a demand for mediation or arbitration oflbe disputed amount shall be made by the Construction Manager within 60 days after lbe Construction Manager's receipt of a copy oflbe Architect's fmal Certificate for Payment. Failure to make such demand within this 60-day period shall result in lbe substantiated amount reported by lbe Owner's accountants becoming binding on lbe Construction Manager. Pending a fmal resolution of the disputed amount, lbe Owner shall pay the Construction Manager lbe amount certified in lbe Architect's final Certificate for Payment. ~ 7,2.5 If, subsequent to final payment and at lbe Owner's request, lbe Construction Manager incurs costs described in Section 6.1 and not excluded by Section 6.2 (I) to correct nonconforming Work or (2) arising from the resolution of disputes, the Owner shall reimburse lbe Construction Manager such costs and lbe Construction Manager's Fee, if any, related lbereto on lbe same basis as if such costs had been incurred prior to final payment, but not in excess of the Guaranteed Maximum Price. If lbe Construction Manager has participated in savings, lbe amount of such savings shall be recalculated and appropriate credit given to lbe Owner in determining lbe net amount to be paid by lbe Owner to lbe Construction Manager. ARTICLE 8 INSURANCE AND BONDS ~ 8.1 INSURANCE REQUIRED OF THE CONSTRUCTION MANAGER During bolb phases oflbe Project, lbe Construction Manager shall purchase and maintain insurance as set forth in Section ILl of A201nL1997. Such insurance shall be written for not less lban lbe following limits, or greater if required by law;- In addition to Owner all Prime Contractors fA shall Ii:,>! Construction Mana1?er 3R an additional in:'\ured__0'!l_~..p!"j.I.'l1~rx.l nOll..:..OO...utributQrvllasis to the Prime Contractor's g~!1eral auto....and excess liahilitv nolicies for both ommimr and conmleted onerations. ~ 8.1.1 Workers' Compensation and Employers' Liability meeting statutory limits mandated by state and federal laws. If(l) limits in excess oflbose required by statute are to be provided, or (2) lbe employer is not statutorily bound to obtain such insurance coverage or (3) additional coverages are required, additional coverages and limits for such insurance shall be as follows: As shown on Exhibit A C:erti:t15~_"!~~_ 9,fJ!!~,~ance ~ 8.1.2 Commercial General Liability including coverage for Premises-Operations, Independent Contractors' Protective, Products-Completed Operations, Contractual Liability, Personal Injury and Broad Form Property Damage coverage for Explosion, Collapse and Underground hazards): Each Occurrence General Aggregate Personal and Advertising Injury Products-Completed Operations Aggregate .1 The policy shall be endorsed to have lbe General Aggregate apply to lbis Project only. .2 Products and Completed Operations insurance shall be maintained for a minimum period of at least ( ) year(s) after either 90 days following Substantial Completion or fmal payment, whichever is earlier. .3 The Contractual Liability insurance shall include coverage sufficient to meet the obligations in Section 3.18 of A20I™-1997. .4 . As sho.wnonEwibit A - Certificate of Insurance ~ 8.1.3 Automobile Liability (owned, non-owned and hired vehicles) for bodily injury and property damage: hi", . 1111IlU Each Accrdent 8.1.3.1 A~ "hown.on.Exhibit A Certificate ofInsurance ~ 8.1.4 Other coverage: ..8.JA,lAs.shown on Exhibit A Certificate ofInsurance (If Umbrella Excess Liability coverage is required over the primary insurance or retention, insert the coverage limits. Commercial General Liability and Automobile Liability limits may be attained by individual policies or by a combination of primary policies and Umbrella and/or Excess Liability policies. if Project Management Protective Liability Insurance is to be provided, state the limits here.) ~ 8.2 INSURANCE REQUIRED OF THE OWNER During both phases of the Project, the Owner shall purchase and maintain liability and property insurance, including waivers of subrogation, as set forth in Sections 11.2 and 11.4 of A201 "'-1997. Such insurance shall be written for not less than the following limits, or greater if required by law: ~ 8.2.1 Pro~erty Insurance: !!!II!I!Deductible Por OC~U1Tcnce liil!!11 c\ggrcgate DeductIble ~ 8.2.2 Boiler and Machinery insurance with a limit of: (if not a blanket policy, list the objects to be insured) ~ 8.3 PERFORMANCE BOND AND PAYMENT BOND ~ 8.3.1 Tire Canstmetion Manager }~. (IRsert "shall" or "shall not") fmnish bonds cm'ering faithful performance oflhe C81ltract aHd paymeRt of obligations ari~ereU11der. Bonds nJJ)' be obtained tbffillgh tire COlwtlUction ~'lanabe.r's tlsHal S8lHl3e. and the cost thereof shall beSecuritv for Construction Man_~\it~r's nerformance and the nerformance of a 11 Prime Contractors and Sunnli~n'Lb~I.e.under will be nrovided in the form_oX.Davrnent and performance bonds as reouired bv Minn Stat,j5Z126. J~7 C?~.t of obtaining reouiredb()l1ds is included in the Cost of the Work. The amoWlt of each bond ,hall be equal to ~1.LII+IJ'I\III4- The beneficiarY of the reouired.honds will be Owner and Construction ManaQer. 8.3.1.1 The Construction Manager shall obtain bonds fromaI.1..c()ntractors covering the full valu.e()fthe work.of the Contract Sum. ~ 8.3.2 The Construction Manager shall deliver the required bonds to the Owner at least three days before the commencement of any Work at the Project site. ARTICLE 9 MISCELLANEOUS PROVISIONS ~ 9.1 DISPUTE RESOLUTION ~ 9.1.1 During both the Preconstruction and Construction Phases, Claims, disputes or other matters in question between the parties to this Agreement shall be resolved as provided in Sections 4.3 through 1.61...:;. of A201"L1997 except that, during the Preconstruction Phase, no decision by the Architect shall be a condition precedent to mediation-er arbitration. ~ 9.2 OTHER PROVISIONS ~ 9.2.1 Unless otherwise noted, the terms used in this Agreement shall have the same meaning as those in A201"'- 1997, General Conditions of the Contract for Construction. 9 9.2.2 EXTENT OF CONTRACT This Contract, which includes this Agreement and the other documents incorporated herein by reference, represents the entire and integrated agreement between the Owner and the Construction Manager and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both the Owner and Construction Manager. If anything in any document incorporated into this Agreement is inconsistent with this Agreement, this Agreement shall govern. 99.2.3 OWNERSHIP AND USE OF DOCUMENTS Article 1.6 of A20 1 ThL 1997 shall apply to both the Preconstruction and Construction Phases. 99.2.4 GOVERNING LAW The Contract shall be governed by the law of the place where the Project is located. 99.2.5 ASSIGNMENT The Owner and Construction Manager respectively bind themselves, their pattners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. Except as provided in Section 13.2.2 of A201ThL1997, neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. ARTICLE 10 TERMINATION OR SUSPENSION 910.1 TERMINATION PRIOR TO ESTABLISHING GUARANTEED MAXIMUM PRICE 910.1.1 Priorto execution by both parties of Amendment No. I establishing the Guaranteed Maximum Price, the Owner may terminate this Contract at any time without cause, and the Construction Manager may terminate this Contract for any of the reasons described in Section 14.1.1 of A201 TM.-1997. 910.1.2 If the Owner or Construction Manager terminates this Contract pursuant to this Section 10.1 prior to commencement of the Construction Phase, the Construction Manager shall be equitably compensated for Preconstruction Phase Services performed prior to receipt of notice of termination; provided, however, that the compensation for such services shall not exceed the compensation set forth in Section 4.1.1. 910.1.3 If the Owner or Construction Manager terminates this Contract pursuant to this Section 10.1 after commencement of the Construction Phase, the Construction Manager shall, in addition to the compensation provided in Section 10.1.2, be paid an amount calculated as follows: .1 Take the Cost ofthe Work incurred by the Construction Manager. .2 Add the Construction Manager's Fee computed upon the Cost of the Work to the date of termination at the rate stated in Section 5.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Section, an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work at the time of termination bears to a reasonable estimate of the probable Cost of the Work upon its completion. .3 Subtract the aggregate of previous payments made by the Owner on account of the Construction Phase. The Oi,,'ucr shall also pay the Construction ~fanager fair Gempensatielt, either by purchase or rental at the ele~tiefl Elf the O'o'mer. for aBe)' eqt:ipmeBt-owne4by.{he-GtlnstruetioB .Manager \"I,.ich the Owner elects to retain and 'Shieh is H"t "t-hor'.'."s, iHo~ud.d in the Cost of the Work under-Sec4ion ] O. U .1. To the e"tem tbaHl1e-ChmeF"lectc, to take legal as::;ig.ll.t11ent of subcontracts and puroRafl-e--{)l'\Jers{il-l€htd:i116 rental 3g.reeme_Bt::',), the COHstru€tien :kIanager sha1l1 Hs-a-€fmd#jf)fl-ef-retx~,ivi:l:l%-ttH~-tlayrncnt; referred to in thi-s--:\.r~jde 1 ()~~l-deli-ve-r----a+l-sl1eh papers ~';ond tak(\ HllfiU€lHi-tt"f)&;o,--iHGltlding,-t+lt-,--k gal ~~:: ~;ibluHer:.t of ::uC..fl--s-HBt."€tfltfU€fs..itfld-etllt.-'\.f--eontraetu-al-r-ight&--o f the COfl.;truetl-tm MaHagef,--as-theO wneHnay-r'*Jltife-'l{~ purpose of IUlly yesti llg ill tbe Ov:""r-th<H~ghts-afld b eHetk, of the f~ls-trHetK-)rl-M-ana-g:e-F--u-ndel:'1ffi€h ,;ubeon-traets or parcha,;e order:;. 8-ubeBRtraet-s-,-purchace orders aHd n~ll:tal 2"greeffi3R1:S en~zr,zd into by th,c Cons~ruc6m ,p,1.aFlnger Y. ith the Ownerls ~r-ap-t3ro\ al prior to the enceutioll of ,'\1-fi2fldH.{efl{ 'k-fl). 1 shall con-tain proyisions pernlittiflg assi;nment to :he G\';I:~r [1:; described abon~. If the Ovner accepts SHea assignment, the O',~iner ~;hull reimburse or iooenmify the Con:;tructionl\1aFla;er with respect to all Gosts arisia; uRder the subcontru.cL purchase order Elf rental agreement t'*GeyM.4R{}&e.....w-hieh ,;':ould not haye be'*!. reimbursal31e as Cost of~he \-Vorl~ :fthe cOBtmct had Ret bean :crnlinate(~. If the {},Yl1cr elect; TIot to accefl~ the assignment of any Sl:ibeeR:ra;::t~ purchase order or rental agreemem '.\~ki;::h ',,,"ould havc,-cmlS-titured"fr-.(;es.t-e.f-dte 'ATork .had this ag.~'eemefl.t not beel: terminat~"-(;{)nstfu-€t:O,H J\fanager ~;ha]] tzrminate such subcontract. p~lrc.~ha:::e order or rental agreement and ~hc O'/.'uer sl1-a11 pay the Con~;truet:ioFl .wlanager the 80StS nececsalily iReHrr~d bJ' the Construction .Manager by reason of SUGh tenninatie:a., ~ 10.2 TERMINATION SUBSEQUENT TO ESTABLISHING GUARANTEED MAXIMUM PRICE Subsequent to execution by both parties of Amendment No. I, the Contract may be terminated as provided in Article 14 of A201""---1997. ~ 10.2.1 In the event of such termination by the Owner, the amount payable to the Construction Manager pursuant to Section 14.1.3 of A201T"-1997 shall not exceed the amount the Construction Manager would have been entitled to receive pursuant to Sections 10.1.2 and I 0.1.3 of this Agreement. ~ 10.2.2 In the event of such termination by the Construction Manager, the amount to be paid to the Construction Manager under Section 14.1.3 of A20 I ""---I 997 shall not exceed the amount the Construction Manager would have been entitled to receive under Sections 10.1.2 and 10.1.3 above, except that the Construction Manager's Pee shall be calculated as if the Work had been fully completed by the Construction Manager, including a reasonable estimate of the Cost of the Work for Work not actually completed. 8 10 .2.3 ,.,InJbs\,,~~t~wUIJ~lt,JhQ{)\Yne:r.,~ly~l;?.tq,t~k.$;JQg~1.ji5tilg!1m~.ntQf,PJ:lme,..CQntr~S,t~.And.J2nrGh4$~,.QJ."d~J] ,(j,nf,:IJ1.d.ing.,...,r~.p,t~..l....~gry~n1~nl~J~"lhYc.,G9.n.~JrnC;:.Jj.9,n,M.~n~g~x,.,.~.bA.,.l,!,~,.,.O.~,.,.,\}..,.,t;.,9.n~;Uli,9}1.,9.[,T~.9.~.i'yj.ng.(h~,.p.~.)m~,nt~.Jt(~XJ;yS:L1q ip,.Jhi~,.,./\IJi,c;:,J.~.....J.Q....g-~g,r;J!1~..fHJSt.1tYJjY5;.r...~ll.:s.qc;:J1..m:m.~r~.,J~n\;l"JHk:.~.,.,.g.ll.,.~Hs..;JL&t~.P$.~.,...iJ),9J,HQ.i.ng.lh~J.s:g~J,...q,~.,$.ig.MJ~:,qt.9f,~1J,S;h !?r.!Hl~,.,.<::,9n.lr.~,~J.~.,.,~.nQ.91h2r"g.R.n.!r~.9.n.t!:l:1.xighl~..Q[th,b,..,,~.9g~,JnJ.~J:i.9n..JY1~!l~,g~I.~..,~.?,.,Jh~.....Q.~i.Q2LD}g.Y...T~qlJiX,b,.JQ.L,.,th,S;, P9rpg.~,~".9:LJq.!ly.,.,yg.~J,iQg.,in.....th~..,Q.}:Y.DY:T.1h~.,.d.,ghl),.",n.Q,.h.qnt;.fit~....,.9f..Hl~.,.,C\lD.~.t!JJstiQn..,.M#n~,g,~I,.!JP4~:c.)!JS;.h,J~,Ijm,~ OmtrllctLQ[j)J.u:ill=JlJJJru. $,qp~.Q~nr?g,!?J,J{,11A~h~~~QJ"~i~Rn9J~m~J.!'l:,gJ:,~~,,N,~J~-oc~.D!~X~Jli.nJ9.hYJb~",~;9.,D.~.!.~.S:Jj~JJJ~:l~,R~~I=W.i!h.th~_E:!WIt~I'~, Y!rjlt2:n.JH?J?r9X~lJJr,j"QIJ.~~...!h~..,s:.~,~.gJfJj.m.'~[AD1:~9.I.D~N9.~.,,,L~~h~lLs;9nti:ljn.l?I9xi?j.Q,D..~,..R~Q.uittiQ~-~'iliF]D1~X1J.tQJ.h.~ Q"YPs:I",.#,~.",g,,~.~SIj,g,~,q...~,9.QY~.~..,.I:Lt!,~~J2.)YJJ~)~aJ;:=~~9U~.q~~gpJP,~~tJh~,oQYtI1~L,~bqJ.!..T~t!~'P-oct1X~~.gr..iTl4~JUp,ifY,Jl1~ (,:9}}~tTHc;#9-q,:YJ~.n~.g,,~);..c~y(t~~..T~.~.l?~.~!.,!q,~LL~R-!~~xj,~ip,g,:\W^"q~J:h~..~=vJ:tQ"Qn.!I'q.fJ.,.J]HI~h~,,~~:,..Q.r~Ly,I~W:J~:QJ~lJl,g~~Jn~nJ ~~9,~p~JJm,0.s:,",.lyhi9h,,)y9.~J0...!.~9,,~..hRy~J(~~:n}:~.iP4QJlJ:,1s:J!1Le.,J1ccs=Gc9-'sJ=()jJh~.".)Y9T.,~,jf",~.~~,"SJ?P.:~,~~.G11lJlJ~LpP.JJ2~~Q"t.xr:mi.n~t~s!.lf .[hs~Jh~J}5iLS;J.yS;.1~.";D9.~,,,,~9,..~.~S'.~P!;JlJ~,f!o~~j~t;!.m~nJ..,9L9,R~~Jl,ll,c()PJ~~C:J..nUX9.h~0.~.9rg.~,~J;).I...I~:!.l15}l.Qgf~~=w~pJ~:hi<;h,.W.RlJJd bA-X2S.Q.tlstituk&L~LC~,1?J,9IJ:h~\,\Y9rk;,h~IP".thi$)Jgr~.y.nJ.~nt..nQLb~GJ1.. tPp;niu.alG.d;..th~:...cQD~['\l~t.i()ILIYl~}.l~g,GL$hill ~~nJ}il}JLliL~Uch.suhf9Jl1nW,td11USlJjl;S.~,.S~rq~L,9~..[G.Q.~ll..ag[~.9:nwnt..<)J1d xhGJ)\Yn.CJnS-hnllJ1~~"lh~".,\:qp$.~s;.tiQll. .M4n:;l.g~.1; ~h~"f,Slli13~D-&<St0?.$a.dJyjnCJ,JJI.gslJJy,,,tbJ~,,\~~w.8,tn!,9tj{nl,:[y:lan.f}gt;T..bYJsn$.QU,..Qf.su~:J.LJ:~rt.ni1mljnn~ ~ 10.3 SUSPENSION The Work maybe suspended by the Owner as provided in Article 14 of A201""---1997; in such case, the Guaranteed Maximum Price, if established, shall be increased as provided in Section 14.3.2 of A201 ""---1997 except that the term "cost of performance of the Contract" in that Section shall be understood to mean the Cost of the Work and the term "profit" shaIl be understood to mean the Construction Manager's Pee as described in Sections 5.1.1 and 5.3.4 of this Agreement. ARTICLE 11 OTHER CONDITIONS AND SERVICES 11.1.1 Additional Documents 11.1.1.1 AddendumNo. I Guaranteed Maximum Price ". ....Addendum No. 2 Biddin~ Reouirements Exhibit':A"""RJM Certificate oflnsurance Exhibit HE".. ..Ownefs Certificate ofInsurance Exhibit HC" Conlm.ctDocument List u Supplementary Conditions to AlA Document A20 I This Agreement entered into as of the day and year first written above. OWNER CONSTRUCTION MANAGER (Printed name and title) (Signature) Robert Jos~art President (Printed name and title) (Signature) Date Date ATTEST ATTEST Assil!:nment of Prime Contracts THIS ASSIGNMENT is made and effective this _ day of ,2007, by the City of Elk River, Minnesota, a municipal corporation ("City") to RJM Construction Management Services Corporation, a Minnesota corporation ("Construction Manager"). RECITALS A. City and Construction Manager have entered into that certain agreement entitled Standard Form of Agreement between Owner and Construction Manager, A20FM CMC - 2003 and AGC Document 565 dated ("CM Agreement") regarding the project described therein ("Project"). B. The Work for Construction of the Project has been competitively bid pursuant to Minnesota law, and City has awarded separate contracts to Prime Contractors. Each Prime Contractor has entered into a written agreement setting forth the terms and conditions of the Work, together with all other plans, specifications, and general conditions as set forth in the Prime Contract (individually, a "Prime Contract" and collectively, the "Prime Contracts"). A List of the Proj ect Prime Contracts is attached as Exhibit A. C. The CM Agreement allows the assigument by Owner to Construction Manager of the Prime Contracts after the parties have agreed on a Guaranteed Maximum Price ("GMP") and the parties hereby represent that have agreed on a GMP as set forth in the Appendix I to the CM Agreement. NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agrees to the following: 1. The Recitals are made a part of this Agreement. 2. Except for the rights and obligations reserved to City in sections 4 and 7 below, City assigns all its rights, benefits, remedies, duties, and obligations under the Prime Contracts to Construction Manager, who hereby assumes such assigned rights, benefits, remedies, duties, and obligations. 3. By this Assigument, Owner agrees to make payments to Construction Manager for the Work described in the Prime Contracts, subject to the terms of the Prime Contracts. City agrees to provide to Construction Manager all services or information required by the Prime Contracts and, with respect to the Construction Manager, retains all duties owed by Owner to Prime Contractors under the Prime Contracts. 4. City, with respect to Construction Manager, reserves its right (and related obligations), to be exercised in consultation with Construction Manager and subject to time and price adjustments contemplated by the CM Agreement and the Prime Contracts, to order changes to and finally approve the Work. Owner further agrees to assign to Construction Manager the rights and obligations arising out of such change orders, provided, however, Owner agrees to compensate Construction Manager for the agreed-upon cost of such changes(s) and the Cost of Construction Manager's additional services. Owner's rights, benefits, and obligations under resulting Change Orders, subject to the same reservations as set forth in the immediately preceding sentence, will be deemed assigned to and assumed by Construction Manager. 5. Construction Manager agrees that in return for the Assignment of Prime Contracts referenced herein, it shall accept the City's rights, and agrees it shall be responsible to Prime Contractors for the City's responsibilities, including full payment, for amounts due Prime Contractors under the Prime Contracts. Construction Manager's obligation to pay the Prime Contractors is conditioned upon Construction Manager receiving payment from Owner for the work for which Prime Contractor requests or claims a payment is due, subject to terms of the Prime Contracts. 6. Construction Manager further agrees that it shall indemnify and hold City harmless from any and all claims, costs, disputes, requests for equitable adjustment or any other additional recovery sought by a Prime Contractor under its Prime Contract due to the errors, negligence, or breach of contract of Construction Manager or its subcontractors. This indemnification and hold harmless will not apply to the extent any such claims, costs, disputes, requests, or attempted recoveries arise from the City's failure to perform its obligations under the CM Agreement or this Assignment or from any delay by the City in exercising rights reserved to it under this Assignment. 7. Subject to the terms of the CM Agreement and this Assignment, City retains its continued ownership in the Project and land, the right to enforce all City-issued permits and City ordinances relevant to the Project, and all police power authority over the Project area and persons working in or affected by the Project. IN WITNESS WHEREOF, the undersigned parties have executed this Assignment effective the date first above written. CITY OF ELK RIVER Owner By: Its: RJM CONSTRUCTION MANAGEMENT SERVICES CORPORATION Construction Manager By: Its: 310619vl JMS EL185-6 2