exv10w2






Exhibit 10.2




AIA®
Document
A133TM — 2009




Standard Form of Agreement Between Owner and Construction Manager as Constructor where the basis of
payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price




AGREEMENT made as of the «1st » day of «December » in the year «2009 »

(In words, indicate day, month and year.)




BETWEEN the Owner:

(Name, legal status and address)




«TD AMERITRADE Services Company, Inc

4211 S. 102nd St.

Omaha, NE 68127 »« »

« »




and the Construction Manager:

(Name, legal status and address)




«Kiewit Building Group Inc.

3921 Mason Street

Omaha, NE 68105 »« »

« »




for the following Project:

(Name and address or location)




«TD Ameritrade Omaha Campus

Old Mill Road

Omaha, NE»

« »




The Architect:

(Name, legal status and address)




« HOK

211 North Broadway, Suite 700

St. Louis. MO 63102

»« »

« »




The Owner’s Designated Representative:

(Name, address and other information)




[NAME]

10825 Farnam Dr

Omaha, NE 68154 »

« »

« »

« »

« »

« »




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The Construction Manager’s Designated Representative:

(Name, address and other information)




[NAME]

3921 Mason Street

Omaha, NE 68105

402-977-4532»

« »

« »

« »

« »

« »




The Architect’s Designated Representative:

(Name, address and other information)




[NAME]

211 North Broadway, Suite 700

St. Louis, MO 63102 »

« »

« »

« »

« »

« »




The Owner and Construction Manager agree as follows.




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TABLE OF ARTICLES





	1	 	GENERAL PROVISIONS
	 
	2	 	CONSTRUCTION MANAGER’S RESPONSIBILITIES
	 
	3	 	OWNER’S RESPONSIBILITIES
	 
	4	 	COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES
	 
	5	 	COMPENSATION FOR CONSTRUCTION PHASE SERVICES
	 
	6	 	COST OF THE WORK FOR CONSTRUCTION PHASE
	 
	7	 	PAYMENTS FOR CONSTRUCTION PHASE SERVICES
	 
	8	 	INSURANCE AND BONDS
	 
	9	 	DISPUTE RESOLUTION
	 
	10	 	TERMINATION OR SUSPENSION
	 
	11	 	MISCELLANEOUS PROVISIONS
	 
	12	 	SCOPE OF THE AGREEMENT





ARTICLE 1 GENERAL PROVISIONS




§ 1.1 The Contract Documents




The Contract Documents consist of this Agreement, Conditions of the Contract (General Conditions)),
Drawings, Specifications, Addenda issued prior to the execution of this Agreement, other documents
listed in this Agreement, and Modifications issued after execution of this Agreement, all of which
form the Contract and are as fully a part of the Contract as if attached to this Agreement or
repeated herein. Upon the Owner’s acceptance of the Construction Manager’s Guaranteed Maximum Price
proposal, the Contract Documents will also include the documents described in Section 2.2.3 and
identified in the Guaranteed Maximum Price Amendment and revisions prepared by the Architect and
furnished by the Owner as described in Section 2.2.8. The Contract represents the entire and
integrated agreement between the parties hereto and supersedes prior negotiations, representations
or agreements, either written or oral. If anything in the other Contract Documents, other than a
Modification, is inconsistent with this Agreement, this Agreement shall govern. In the case of
conflict between this Agreement (A133-2009) and the General Conditions (A201-1997), the Agreement
shall govern.




§ 1.2 Relationship of the Parties




Both Parties agree to cooperate with the Architect and exercise the Construction Manager’s skill
and judgment in furthering the success of the Project; to furnish efficient construction
administration, management services and supervision; to furnish at all times an adequate supply of
workers and materials; and to perform the Work in an expeditious and economical manner consistent
with the Contract. The Owner agrees to furnish or approve, in a timely manner, information required
by the Construction Manager and to make payments to the Construction Manager in accordance with the
requirements of the Contract Documents.




§ 1.3 General Conditions




For the Preconstruction Phase, AIA Document A201TM—2007, General Conditions of the Contract for
Construction, shall apply only as specifically provided in this Agreement. For the Construction
Phase, the general conditions of the contract shall be as set forth in A201—2007, which document
is incorporated herein by reference. The term “Contractor” as used in A201—2007 shall mean the
Construction Manager.




ARTICLE 2 CONSTRUCTION MANAGER’S RESPONSIBILITIES




The Construction Manager’s Preconstruction Phase responsibilities are set forth in Sections 2.1 and
2.2. The Construction Manager’s Construction Phase responsibilities are set forth in Section 2.3.
The Owner and





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Construction Manager may agree, in consultation with the Architect, for the
Construction Phase to commence prior to completion of the Preconstruction Phase, in which case,
both phases will proceed concurrently. The Construction Manager shall identify a representative
authorized to act on behalf of the Construction Manager with respect to the Project.




§ 2.1 Preconstruction Phase




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




§ 2.1.2 Consultation




The Construction Manager shall schedule and conduct meetings with the Architect and Owner to
discuss such matters as procedures, progress, coordination, and scheduling of the Work. The
Construction Manager shall advise the Owner and the Architect on proposed site use and
improvements, selection of materials, and building systems and equipment. The Construction Manager
shall also provide recommendations consistent with the Project requirements to the Owner and
Architect on constructability; availability of materials and labor; time requirements for
procurement, installation and construction; and factors related to construction cost including, but
not limited to, costs of alternative designs or materials, preliminary budgets, life-cycle data,
and possible cost reductions.




§ 2.1.3 The Construction Manager shall prepare and periodically, at Owner’s request, update a
Project schedule for the Architect’s review and the Owner’s acceptance. The Construction Manager
shall obtain the Architect’s approval for the portion of the Project schedule relating to the
performance of the Architect’s services. The Project schedule shall coordinate and integrate the
Construction Manager’s services, the Architect’s services, other Owner consultants’ services, and
the Owner’s responsibilities and identify items that could affect the Project’s timely completion.
The updated Project schedule shall include the following: submission of the estimate of the Cost of
the Work (or Guaranteed Maximum Price proposal if applicable); components of the Work; times of
commencement and completion required of each Subcontractor; ordering and delivery of products,
including those that must be ordered well in advance of construction; and the occupancy
requirements of the Owner.




§ 2.1.4 Phased Construction




The Construction Manager shall provide recommendations with regard to accelerated or fast-track
scheduling, procurement, or phased construction. The Construction Manager shall take into
consideration cost reductions, cost information, constructability, provisions for temporary
facilities and procurement and construction scheduling issues.




§ 2.1.5 Preliminary Cost Estimates




§ 2.1.5.1 Based on the preliminary design and other design criteria prepared by the Architect, the
Construction Manager shall prepare preliminary estimates of the Cost of the Work or the cost of
program requirements using area, volume or similar conceptual estimating techniques for the
Architect’s review and Owner’s approval. If the Architect or Construction Manager suggest
alternative materials and systems, the Construction Manager shall provide cost evaluations of those
alternative materials and systems.




§ 2.1.5.2 As the Architect progresses with the preparation of the Schematic Design, Design
Development and Construction Documents, the Construction Manager shall prepare and update, at
appropriate intervals agreed to by the Owner, Construction Manager and Architect, estimates of the
Cost of the Work of increasing detail and refinement and allowing for the further development of
the design until such time as the Owner and Construction Manager agree on a Guaranteed Maximum
Price for the Work. Such estimates shall be provided for the Architect’s review and the Owner’s
approval. The Construction Manager shall inform the Owner and Architect when estimates of the Cost
of the Work exceed the latest approved Project budget and make recommendations for corrective
action.




§ 2.1.6 Subcontractors and Suppliers




The Construction Manager shall develop bidders’ interest in the Project.




§ 2.1.7 The Construction Manager shall prepare, for the Architect’s review and the Owner’s
acceptance, a procurement schedule for items that must be ordered well in advance of construction.
The Construction Manager shall expedite and coordinate the ordering and delivery of materials that
must be ordered well in advance of construction. If the Owner agrees to procure any items prior to
the establishment of the Guaranteed Maximum Price, the Owner shall procure the items on terms and
conditions acceptable to the Construction Manager and in





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compliance with the Construction Manager’s
normal practice and procedures for procuring such items. Upon the establishment of the Guaranteed
Maximum Price, the Owner shall assign all contracts for these items to the Construction Manager and
the Construction Manager shall thereafter accept responsibility for them.




§ 2.1.8 Extent of Responsibility




The Construction Manager shall exercise reasonable care in preparing schedules and estimates. The
Construction Manager, however, does not warrant or guarantee estimates and schedules except as may
be included as part of the Guaranteed Maximum Price. The Construction Manager is not required to
design the Project within the Owner’s budget or to ascertain that the Drawings and Specifications
are so designed or are in accordance with applicable laws, statutes, ordinances, codes, rules and
regulations, or lawful orders of public authorities, but the Construction Manager shall promptly
report to the Architect and Owner any nonconformity discovered by or made known to the Construction
Manager as a request for information in such form as the Architect may require. However, the Owner
acknowledges that the Construction Manager is not a licensed design professional and the
Construction Manager shall not be responsible for the Project’s overall design, any design element,
or the design process, unless otherwise outlined in the Contract Documents.




§ 2.1.9 Notices and Compliance with Laws




The Construction Manager shall comply with applicable laws, statutes, ordinances, codes, rules and
regulations, and lawful orders of public authorities applicable to its performance under this
Contract, and with equal employment opportunity programs, and other programs as may be required by
governmental and quasi governmental authorities for inclusion in the Contract Documents.




§ 2.2 Guaranteed Maximum Price Proposal and Contract Time




§ 2.2.1 At a time to be mutually agreed upon by the Owner and the Construction Manager and in
consultation with the Architect, the Construction Manager shall prepare a Guaranteed Maximum Price
(GMP) proposal for the Owner’s review and acceptance. The Guaranteed Maximum Price in the proposal
shall be the sum of the Construction Manager’s estimate of the Cost of the Work, including
contingencies described in Section 2.2.4, and the Construction Manager’s Fee.




§ 2.2.2 To the extent that the Drawings and Specifications are anticipated to require further
development by the Architect, the Construction Manager shall provide in the Guaranteed Maximum
Price for such further development 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 Construction Manager shall include with the Guaranteed Maximum Price proposal a written
statement of its basis, which shall include the following:





	 	.1	 	A list of the Drawings and Specifications, including all Addenda thereto, and
the Conditions of the Contract;
	 
	 	.2	 	A list of the clarifications and assumptions made by the Construction Manager
in the preparation of the Guaranteed Maximum Price proposal, including assumptions
under Section 2.2.2, to supplement the information provided by the Owner and contained
in the Drawings and Specifications;
	 
	 	.3	 	A statement of the proposed Guaranteed Maximum Price, including a statement
of the estimated Cost of the Work organized by trade categories or systems,
allowances, contingency, and the Construction Manager’s Fee;
	 
	 	.4	 	The Contract Time, including the date(s) of Substantial Completion upon which
the proposed Guaranteed Maximum Price is based; and
	 
	 	.5	 	A date by which the Owner must accept the Guaranteed Maximum Price.





§ 2.2.4 In preparing the Construction Manager’s Guaranteed Maximum Price proposal, the Construction
Manager shall include its contingency for the Construction Manager’s exclusive use to cover those
costs considered reimbursable as the Cost of the Work but not included in a Change Order. The Owner
and the Architect acknowledge that the contingency is not available for scope changes and that no
scope changes shall be paid with funds taken from the contingency. The Owner and Architect further
acknowledge that no portion of the contingency is allocated to any specific portion of the Work,
but rather the contingency is available for the Construction Manager’s exclusive use throughout the
Project as a whole. If Construction Manger is providing phased or scope specific GMP proposals as
outlined in 2.2.10, the contingency shall be tracked separately for each GMP proposal




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until such time a GMP is in place for the entire Project scope, at such time the Construction Manager shall
provide an updated GMP and contingency for the entire Project. Unused contingencies for all phases
shall be returned to the owner. The Construction Manager shall provide a periodic reporting of the
charges made against the contingency as such times as the Owner may reasonable request. Prior to
any charges being made against the contingency, the Construction Manager shall submit such charges
to Owner for review and approval which shall not be unreasonably withheld.




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




§ 2.2.6 If the Owner notifies the Construction Manager that the Owner has accepted the Guaranteed
Maximum Price proposal in writing before the date specified in the Guaranteed Maximum Price
proposal, the Guaranteed Maximum Price proposal shall be deemed effective without further
acceptance from the Construction Manager. Following acceptance of a Guaranteed Maximum Price, the
Owner and Construction Manager shall execute the Guaranteed Maximum Price Amendment amending this
Agreement, a copy of which the Owner shall provide to the Architect. The Guaranteed Maximum Price
Amendment shall set forth the agreed upon Guaranteed Maximum Price with the information and
assumptions upon which it is based.




§ 2.2.7 The Construction Manager shall not incur any cost to be reimbursed as part of the Cost of
the Work prior to the commencement of the Construction Phase, unless the Owner provides prior
written authorization for such costs.




§ 2.2.8 The Owner shall authorize the Architect to provide the revisions to the Drawings and
Specifications to incorporate the agreed-upon assumptions and clarifications contained in the
Guaranteed Maximum Price Amendment. The Owner shall promptly furnish those revised Drawings and
Specifications to the Construction Manager as they are revised in a manner that does not delay,
disrupt or hinder the Construction Manager’s performance of the Work. The Construction Manager
shall notify the Owner and Architect of any inconsistencies between the Guaranteed Maximum Price
Amendment and the revised Drawings and Specifications.




§ 2.2.9 The Construction Manager shall include in the Guaranteed Maximum Price all sales, consumer,
use and similar taxes for the Work provided by the Construction Manager that are legally enacted,
whether or not yet effective, at the time the Guaranteed Maximum Price Amendment is executed.




§ 2.2.10 The Construction Manager acknowledges that the Owner may require the development of scope
specific GMP’s in advance of the total project GMP. The contractor shall prepare a written
proposal for each of such scope specific GMP’s that includes all items as described in 2.2.3.1,
2.2.3.2, 2.2.3.3, 2.2.3.3, and 2.2.3.5 above.




§ 2.3 Construction Phase




§ 2.3.1 General




§ 2.3.1.1 For purposes of Section 8.1.2 of A201—2007, the date of commencement of the Work shall
mean the date of commencement of the Construction Phase.




§ 2.3.1.2 The Construction Phase shall commence upon the Owner’s issuance of a Notice to Proceed.




§ 2.3.2 Administration




§ 2.3.2.1 Those portions of the Work that the Construction Manager does not customarily perform
with the Construction Manager’s own personnel shall be performed under subcontracts or by other
appropriate agreements with the Construction Manager. The Owner may designate specific persons from
whom, or entities from which, the Construction Manager shall obtain bids. The Construction Manager
shall prepare a list of pre-qualified subcontractors to perform such work for the Owner’s approval.
The Construction Manager shall obtain bids from Subcontractors and from suppliers of materials or
equipment fabricated especially for the Work. The Owner shall then determine, with the advice of
the Construction Manager and the Architect, which bids will be accepted. The Construction Manager
shall not be required to contract with anyone to whom the Construction Manager has reasonable
objection. Construction Manager may be required to submit a proposal directly to the Owner for any
self-performed work whose cost is greater than $50,000. Self-performed work proposals shall be
delivered to Owner prior to Construction Manager’s receipt of any subcontractor proposals for the
same scope of work. All self-





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performed work shall be a guaranteed maximum price proposal and such
work shall be billed in accordance with Article 6 of this Agreement by Construction Manager, not
to exceed the guaranteed maximum price. Should the Cost of the Work be less than the proposed
guaranteed maximum price, such variance shall be included in project savings for the purposes of
calculating the savings in section 5.2.1.




§ 2.3.2.2 If the Guaranteed Maximum Price has been established and when a specific bidder (1) is
recommended to the Owner by the Construction Manager, (2) is qualified to perform that portion of
the Work, and (3) has submitted a bid that conforms to the requirements of the Contract Documents
without reservations or exceptions, but the Owner requires that another bid be accepted, then the
Construction Manager may require that a Change Order be issued to adjust the Contract Time and the
Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to
the Owner by the Construction Manager and the amount and time requirement of the subcontract or
other agreement actually signed with the person or entity designated by the Owner.




§ 2.3.2.3 Subcontracts or other agreements shall conform to the applicable payment provisions of
this Agreement, and shall not be awarded on the basis of cost plus a fee without the prior consent
of the Owner. If the Subcontract is awarded on a cost-plus a fee basis, the Construction Manager
shall provide in the Subcontract for the Owner to receive the same audit rights with regard to the
Subcontractor as the Owner receives with regard to the Construction Manager in Section 6.11 below.




§ 2.3.2.4 If the Construction Manager recommends a specific bidder that may be considered a
“related party” according to Section 6.10, then the Construction Manager shall promptly notify the
Owner in writing of such relationship and notify the Owner of the specific nature of the
contemplated transaction, according to Section 6.10.2.




§ 2.3.2.5 The Construction Manager shall schedule and conduct meetings to discuss such matters as
procedures, progress, coordination, scheduling, and status of the Work. The Construction Manager
shall prepare and promptly distribute minutes to the Owner and Architect.




§ 2.3.2.6 Upon the execution of the Guaranteed Maximum Price Amendment, the Construction Manager
shall prepare and submit to the Owner and Architect a construction schedule for the Work and
submittal schedule in accordance with the General Conditions The Owner acknowledges that the
Construction Manager’s schedule (including all critical path activities and all activities with
float) is a working tool that the Construction Manager shall manage as its discretion dictates.
The schedule is not a Contract Document and does not alter the Construction Manager’s obligation to
substantially complete the Work by the date of Substantial completion. Except for the date of
Substantial Completion and any milestones established in
the GMP Amendment(s), the Construction Manager may revise the schedule throughout the Project as
necessary. As part of its responsibility for the means and methods of construction, the
Construction manager shall have exclusive authority to determine the sequencing and duration of all
schedule activities. As such, the Construction Manager shall have exclusive use of any schedule
float.




§ 2.3.2.7 The Construction Manager shall record the progress of the Project. On a monthly basis, or
otherwise as agreed to by the Owner, the Construction Manager shall submit written progress reports
to the Owner and Architect, showing percentages of completion and other information required by the
Owner. The Construction Manager shall also keep, and make available to the Owner and Architect, a
daily log containing a record for each day of weather, portions of the Work in progress, number of
workers on site, identification of equipment on site, problems that might affect progress of the
work, accidents, injuries, and other information required by the Owner.




§ 2.3.2.8 The Construction Manager shall develop a system of cost control for the Work, including
regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks
and proposed changes. The Construction Manager shall identify variances between actual and
estimated costs and report the variances to the Owner and Architect and shall provide this
information in its monthly reports to the Owner and Architect, in accordance with Section 2.3.2.7
above.




§ 2.4 Professional Services




The General Conditions shall apply to both the Preconstruction and Construction Phases.




§ 2.5 Hazardous Materials




The General Conditions shall apply to both the Preconstruction and Construction Phases.





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ARTICLE 3 OWNER’S RESPONSIBILITIES




§ 3.1 Information and Services Required of the Owner




§ 3.1.1 The Owner shall provide information with reasonable promptness, regarding requirements for
and limitations on the Project, including a written program which shall set forth the Owner’s
objectives, constraints, and criteria, including schedule, space requirements and relationships,
flexibility and expandability, special equipment, systems sustainability and site requirements and
all other information reasonably required for the full and complete design of the Project
(“Owner-furnished Information”).




§ 3.1.2 Prior to the commencement of the Work, the Owner shall provide reasonable evidence that
the Owner has made financial arrangements to fulfill the Owner’s obligations under the Contract.
Thereafter, the Construction Manager may only request such evidence if (1) the Owner fails to make
payments to the Construction Manager as the Contract Documents require, (2) a change in the Work
materially changes the Contract Sum, or (3) the Construction Manager identifies in writing a
reasonable concern regarding the Owner’s ability to make payment when due. The Owner shall furnish
such evidence as a condition precedent to commencement or continuation of the Work or the portion
of the Work affected by a material change. After the Owner furnishes the evidence, the Owner shall
not materially vary such financial arrangements without prior notice to the Construction Manager
and Architect.




§ 3.1.4 Structural and Environmental Tests, Surveys and Reports. During the Preconstruction Phase,
the Owner shall furnish the following information or services with reasonable promptness. The Owner
shall also furnish any other information or services under the Owner’s control and relevant to the
Construction Manager’s performance of the Work with reasonable promptness after receiving the
Construction Manager’s written request for such information or services. The Construction Manager
shall be entitled to rely on the accuracy of information and services furnished by the Owner but
shall exercise proper precautions relating to the safe performance of the Work.




§ 3.1.4.1 The Owner shall furnish tests, inspections and reports required by law and as otherwise
agreed to by the parties, such as structural, mechanical, and chemical tests, tests for air and
water pollution, and tests for hazardous materials.








§ 3.1.4.2 The Owner shall furnish surveys describing physical characteristics, legal limitations
and utility locations for the site of the Project, and a legal description of the site. The surveys
and legal information shall include, as applicable, grades and lines of streets, alleys, pavements
and adjoining property and structures; designated wetlands; adjacent drainage; rights-of-way,
restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the
site; locations, dimensions and necessary data with respect to existing buildings, other
improvements and trees; and information concerning available utility services and lines, both
public and private, above and below grade, including inverts and depths. All the information on the
survey shall be referenced to a Project benchmark.




§ 3.1.4.3 The Owner, when such services are requested, shall furnish services of geotechnical
engineers, which may include but are not limited to test borings, test pits, determinations of soil
bearing values, percolation tests, evaluations of hazardous materials, seismic evaluation, ground
corrosion tests and resistivity tests, including necessary operations for anticipating subsoil
conditions, with written reports and appropriate recommendations.




§ 3.1.4.4 During the Construction Phase, the Owner shall furnish information or services required
of the Owner by the Contract Documents with reasonable promptness. The Owner shall also furnish any
other information or services under the Owner’s control and relevant to the Construction Manager’s
performance of the Work with reasonable promptness after receiving the Construction Manager’s
written request for such information or services.




§ 3.2 Owner’s Designated Representative




The Owner shall identify a representative authorized to act on behalf of the Owner with respect to
the Project. The Owner’s representative shall render decisions promptly and furnish information
expeditiously, so as to avoid unreasonable delay in the services or Work of the Construction
Manager. Except as otherwise provided in Section 4.2.1 of A201—2007, the Architect does not have
such authority. The term “Owner” means the Owner or the Owner’s authorized representative.




§ 3.2.1 Legal Requirements. The Owner shall furnish all legal, insurance and accounting services,
including auditing services, that may be reasonably necessary at any time for the Project to meet
the Owner’s needs and interests.




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§ 3.3 Architect




The Owner shall retain an Architect to provide all design services,. The Owner shall provide the
Construction Manager a copy of the executed agreement between the Owner and the Architect, and any
further modifications to the agreement.




ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES




§ 4.1 Compensation




§ 4.1.1 For the Construction Manager’s Preconstruction Phase services, the Owner shall compensate
the Construction Manager as follows:




     The Construction Manager shall receive no fee for Preconstruction Services.



§ 4.1.2 For the Construction Manager’s Preconstruction Phase services described in Sections 2.1 and
2.2:




     All cost incurred by Construction Manager for travel and related expenses and any other
expenses approved by Owner.



§ 4.2 Payments




§ 4.2.1 Unless otherwise agreed, payments for services shall be made monthly in proportion to
services performed.








§ 4.2.2 Payments are due and payable upon presentation of the Construction Manager’s invoice.
Amounts unpaid «thirty » ( «30 » ) days after the invoice date shall bear interest at the rate
entered below, or in the absence thereof at the legal rate prevailing from time to time at the
principal place of business of the Construction Manager.




Wall Street Journal prime rate plus three percent (3%) per annum compounded monthly and computed
daily.




ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES




§ 5.1 For the Construction Manager’s performance of the Work as described in Section 2.3, the Owner
shall pay the Construction Manager the Contract Sum in current funds for the Construction Manager’s
performance of the Contract. The Contract Sum is the Cost of the Work as defined in Section 6.1.1
plus the Construction Manager’s Fee.




§ 5.1.1 The Construction Manager’s Fee:




     Three percent (3%) times the Cost of the Work as defined in the Agreement with the exception
of:



     §5.1.1.1 Construction Manager’s Staff — Defined as wages of the Construction Manager’s
supervisory and administrative personnel in accordance of 6.2.2 below.



     §5.1.1.2 Construction Manager’s General Conditions — Defined as the cost for the items
designated as “General Conditions” in Exhibit 2 — General Conditions Project Cost Assignment
Matrix.



     §5.1.1.4 Construction Manager’s Bonding



« »




§ 5.1.2 The method of adjustment of the Construction Manager’s Fee for changes in the Work:




     Three percent (3%)



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§ 5.1.3 Limitations, if any, on a Subcontractor’s overhead and profit for increases in the cost of
its portion of the Work:




     Fifteen percent (15%)



« »




§ 5.1.4 Rental rates for Construction Manager-owned equipment shall not exceed «One Hundred »
percent ( «100» %) of the standard rate paid at the place of the Project.




§ 5.1.5 Unit prices, if any: — N/A




§ 5.2 Guaranteed Maximum Price




§ 5.2.1 The Construction Manager guarantees that the Contract Sum shall not exceed the Guaranteed
Maximum Price set forth in the Guaranteed Maximum Price Amendment, as it is amended from time to
time. To the extent the Cost of the Work exceeds the Guaranteed Maximum Price, the Construction
Manager shall bear such costs in excess of the Guaranteed Maximum Price without reimbursement or
additional compensation from the Owner.




All contingency shall be returned to Owner. All project savings beyond contingency shall be split
between the Owner and the Construction Manager at the ratio of 60% for the Owner and 40% for the
Construction Manager.




« »




§ 5.2.2 The Guaranteed Maximum Price is subject to additions and deductions by Change Order as
provided in the Contract Documents and the Date of Substantial Completion shall be subject to
adjustment as provided in the Contract Documents.




§ 5.3 Changes in the Work




§ 5.3.1 The Owner may, without invalidating the Contract, order changes in the Work within the
general scope of the Contract consisting of additions, deletions or other revisions. The Owner
shall issue such changes in writing. The Architect may make minor changes in the Work as provided
in Section 7.4 of AIA Document A201—2007, General Conditions of the Contract for Construction. The
Construction Manager shall be entitled to an equitable adjustment in the Contract Time as a result
of changes in the Work.




§ 5.3.2 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to
the execution of the Guaranteed Maximum Price Amendment shall be determined by mutual agreement
between the Owner and Construction Manager or the process established in the General Conditions.




§ 5.3.3 In calculating adjustments to subcontracts (except those awarded with the Owner’s prior
consent on the basis of cost plus a fee), the terms “cost” and “fee” as used in Section 7.3.3.3 of
AIA Document A201—2007 and the term “costs” as used in Section 7.3.7 of AIA Document A201—2007
shall have the meanings assigned to them in AIA Document A201—2007 and shall not be modified by
Sections 5.1 and 5.2, Sections 6.1 through 6.7, and Section 6.8 of this Agreement. Adjustments to
subcontracts 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 subcontracts.




§ 5.3.4 In calculating adjustments to the Guaranteed Maximum Price, the terms “cost” and “costs” as
used in the above-referenced provisions of the General Conditions shall mean the Cost of the Work
as defined in Sections 6.1 to 6.7 of this Agreement and the term “fee” shall mean the Construction
Manager’s Fee as defined in Section 5.1 of this Agreement.




§ 5.3.5 If no specific provision is made in Section 5.1.2 for adjustment of the 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 adjustment provisions of Section 5.1.2 will cause substantial
inequity to the Owner or Construction Manager, the Construction Manager’s Fee shall be equitably
adjusted on the same basis that was used to establish the Fee for the original Work, and the
Guaranteed Maximum Price shall be adjusted accordingly.






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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 the standard
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 Sections 6.1 through 6.7.




§ 6.1.2 Where any cost is subject to the Owner’s prior approval, the Construction Manager shall
obtain this approval prior to incurring the cost. The parties shall endeavor to identify any such
costs prior to executing Guaranteed Maximum Price Amendment.




§ 6.2 Labor Costs




§ 6.2.1 Wages of construction workers directly employed by the Construction Manager to perform the
construction of the Work at the site or, with the Owner’s prior approval, at off-site workshops.
The wages for such personnel are designated on the attached Exhibit 1. Such wages shall be updated
periodically by Change Order as updated labor agreements are re-negotiated.




§ 6.2.2 Wages or salaries of the Construction Manager’s supervisory and administrative personnel
when stationed at the site with the Owner’s prior approval. The wages for such personnel are
designated on the attached Exhibit 1. Such wages are updated once annually by Change Order as
annual salary adjustments are made.




§ 6.2.3 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 Work.




§ 6.2.4 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 such costs are based on wages and salaries included in
the Cost of the Work under Sections 6.2.1 through 6.2.3, which are included in the rates attached
hereto.




§ 6.2.5 Bonuses, profit sharing, incentive compensation and any other discretionary payments paid
to anyone hired by the Construction Manager or paid to any Subcontractor or vendor, with the
Owner’s prior approval are included in the Cost of the Work under Section 6.2.1 through 6.2.3




§ 6.3 Subcontract Costs




Payments made by the Construction Manager to Subcontractors in accordance with the requirements of
the subcontracts.




§ 6.4 Costs of Materials and Equipment Incorporated in the Completed Construction




§ 6.4.1 Costs, including transportation and storage, of materials and equipment incorporated or to
be incorporated in the completed construction.




§ 6.4.2 Costs of materials described in the preceding Section 6.4.1 in excess of those actually
installed to allow for reasonable waste and spoilage. Unused excess materials, if any, shall become
the Owner’s property at the completion of the Work or, at the Owner’s option, shall be sold by the
Construction Manager. Any amounts realized from such sales shall be credited to the Owner as a
deduction from the Cost of the Work.




§ 6.5 Costs of Other Materials and Equipment, Temporary Facilities and Related Items




§ 6.5.1 Costs of transportation, storage, installation, maintenance, dismantling and removal of
materials, supplies, temporary facilities, machinery, equipment and hand tools not customarily
owned by construction workers that are provided by the Construction Manager at the site and fully
consumed in the performance of the Work. Costs of materials, supplies, temporary facilities,
machinery, equipment and tools that are not fully consumed shall be based on the cost or value of
the item at the time it is first used on the Project site less the value of the item when it is no
longer used at the Project site. Costs for items not fully consumed by the Construction Manager
shall mean fair market value.





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§ 6.5.2 Rental charges for temporary facilities, machinery, equipment and hand tools not
customarily owned by construction workers that are provided by the Construction Manager at the site
and costs of transportation, installation, minor repairs, dismantling and removal. The total rental
cost of any Construction Manager-owned item may not exceed the purchase price of any comparable
item. Rates of Construction Manager-owned equipment and quantities of equipment shall be subject to
the Owner’s prior approval.




§ 6.5.3 Costs of removal of debris from the site of the Work and its proper and legal disposal.




§ 6.5.4 Costs of document reproductions, facsimile transmissions and long-distance telephone calls,
postage and parcel delivery charges, telephone service at the site and reasonable petty cash
expenses of the site office.




§ 6.5.5 That portion of the reasonable expenses of the Construction Manager’s supervisory or
administrative personnel incurred while traveling in discharge of duties connected with the Work.




§ 6.5.6 Costs of materials and equipment suitably stored off the site at a mutually acceptable
location, subject to the Owner’s prior approval.




§ 6.6 Miscellaneous Costs




§ 6.6.1 Premiums for that portion of insurance and bonds required by the Contract Documents that
can be directly attributed to this Contract. Self-insurance for either full or partial amounts of
the coverages required by the Contract Documents, with the Owner’s prior approval.




§ 6.6.2 Sales, use or similar taxes imposed by a governmental authority that are related to the
Work and for which the Construction Manager is liable.




§ 6.6.3 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.




§ 6.6.4 Fees of laboratories for tests required by the Contract Documents, except those related to
defective or nonconforming Work for which reimbursement is excluded by Section 13.5.3 of AIA
Document A201—2007 or by other provisions of the Contract Documents, and which do not fall within
the scope of Section 6.7.3.




§ 6.6.5 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 rights arising from such requirement of the Contract Documents; and 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. However, such costs of legal
defenses, judgments and settlements shall not be included in the calculation of the Construction
Manager’s Fee or subject to the Guaranteed Maximum Price. If such royalties, fees and costs are
excluded by the Contract Documents, then they shall not be included in the Cost of the Work.




§ 6.6.6 Costs for electronic equipment and software, directly related to the Work with the Owner’s
prior approval.




§ 6.6.7 Deposits lost for causes other than the Construction Manager’s negligence or failure to
fulfill a specific responsibility in the Contract Documents.




§ 6.6.8 Legal, mediation and arbitration costs, including attorneys’ fees, other than those arising
from disputes between the Owner and Construction Manager, reasonably incurred by the Construction
Manager after the execution of this Agreement in the performance of the Work and with the Owner’s
prior approval, which shall not be unreasonably withheld.




§ 6.6.9 Subject to the Owner’s prior approval, expenses incurred in accordance with the
Construction Manager’s standard written personnel policy for relocation and temporary living
allowances of the Construction Manager’s personnel required for the Work.




§ 6.7 Other Costs and Emergencies




§ 6.7.1 Other costs incurred in the performance of the Work if, and to the extent, approved in
advance in writing by the Owner.




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§ 6.7.2 Costs incurred 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 the General Conditions.




§ 6.7.3 Costs of repairing or correcting damaged Work executed by the Construction Manager,
Subcontractors or suppliers, provided that such damaged Work was not caused by failure to fulfill
a specific responsibility of the Construction Manager and only to the extent that the cost of
repair or correction is not recovered by the Construction Manager from insurance, sureties, Subcontractors,
suppliers, or others.




§ 6.7.4 The costs described in Sections 6.1 through 6.7 shall be included in the Cost of the Work,
notwithstanding any provision of AIA the General Conditions of the Contract which may require the
Construction Manager to pay such costs, unless such costs are excluded by the provisions of Section
6.8.




§ 6.8 Costs Not To Be Reimbursed




§ 6.8.1 The Cost of the Work shall not include the items listed below:





	 	.1	 	Salaries and other compensation of the Construction Manager’s personnel
stationed at the Construction Manager’s principal office or offices other than the
site office, except as specifically provided in Section 6.2, or as may be provided in
Article 11;
	 
	 	.2	 	Expenses of the Construction Manager’s principal office and offices other
than the site office;
	 
	 	.3	 	Overhead and general expenses, except as may be expressly included in
Sections 6.1 to 6.7;
	 
	 	.4	 	The Construction Manager’s capital expenses, including interest on the
Construction Manager’s capital employed for the Work;
	 
	 	.5	 	Except as provided in Section 6.7.3 of this Agreement, costs due to the
negligence or failure of the Construction Manager, Subcontractors and suppliers or
anyone directly or indirectly employed by any of them or for whose acts any of them
may be liable to fulfill a specific responsibility of the Contract;
	 
	 	.6	 	Any cost not specifically and expressly described in Sections 6.1 to 6.7;
	 
	 	.7	 	Costs, other than costs included in Change Orders approved by the Owner, that
would cause the Guaranteed Maximum Price to be exceeded; and
	 
	 	.8	 	Costs for services incurred during the Preconstruction Phase.





§ 6.9 Discounts, Rebates and Refunds




§ 6.9.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the
Owner if (1) before making the payment, the Construction Manager included them in an Application
for Payment and received payment 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 Construction Manager shall make
provisions so that they can be obtained.




§ 6.9.2 Amounts that accrue to the Owner in accordance with the provisions of Section 6.9.1 shall
be credited to the Owner as a deduction from the Cost of the Work.




§ 6.10 Related Party Transactions




§ 6.10.1 For purposes of Section 6.10, the term “related party” shall mean a parent, subsidiary,
affiliate or other entity having common ownership or management with the Construction Manager; any
entity in which any stockholder in, or management employee of, the Construction Manager owns any
interest in excess of ten percent in the aggregate; or any person or entity which has the right to
control the business or affairs of the Construction Manager. The term “related party” includes any
member of the immediate family of any person identified above.




§ 6.10.2 If any of the costs to be reimbursed arise from a transaction between the Construction
Manager and a related party, the Construction Manager shall notify the Owner of the specific nature
of the contemplated transaction, including the identity of the related party and the anticipated
cost to be incurred, before any such transaction is consummated or cost incurred. If the Owner,
after such notification, authorizes the proposed transaction, then the cost incurred shall be
included as a cost to be reimbursed, and the Construction Manager shall procure the Work,
equipment, goods or service from the related party, as a Subcontractor, according to the terms of
Sections 2.3.2.1, 2.3.2.2 and 2.3.2.3. If the Owner fails to authorize the transaction, the
Construction Manager shall procure the Work, equipment, goods or service from some person or entity
other than a related party according to the terms of Sections 2.3.2.1, 2.3.2.2 and 2.3.2.3.




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§ 6.11 Accounting Records




The Construction Manager shall keep full and detailed records and accounts related to the cost of
the Work and exercise such controls as may be necessary for proper financial management under this
Contract and to substantiate all costs incurred. The accounting and control systems shall be
satisfactory to the Owner, including tracking of materials, labor and tax expenditures required for
Owner to comply with tax incentive programs. The Owner and the Owner’s auditors shall, during
regular business hours and upon reasonable notice, be afforded access to, and shall be permitted to
audit and copy, the Construction Manager’s records and accounts, including complete documentation
supporting accounting entries, books, correspondence, instructions, drawings, receipts,
subcontracts, Subcontractor’s proposals, purchase orders, vouchers, memoranda and other data
relating to this Contract. The Construction Manager shall preserve these records for a period of
three years after final payment, or for such longer period as may be required by law.




ARTICLE 7 PAYMENTS FOR CONSTRUCTION PHASE SERVICES




§ 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 that an Application for Payment is received by the Architect not later than the «
5th» day of a month, the Owner shall make payment of the certified amount to the Construction
Manager not later than the last day of the month. . If Owner intends to withhold any portion of the
Application for Payment, Owner shall provide any reason for such withholding in writing prior to
Payment due date. If an Application for Payment is received by the Architect after the application
date fixed above, payment shall be made by the Owner not later than « twenty five» ( «25 » ) days
after the Architect receives the Application for Payment. Should the Owner not make payment when
due on undisputed amounts, or should the Owner withhold a portion of any undisputed payment that is
due, the Construction Manager may give the Owner notice that payment is past due (the “late Payment
Cure Notice”). The Construction Manager may suspend work and shall have no obligation to otherwise
perform any contractual obligation if the Owner fails to pay the amount due within ten (10)
calendar days after the Construction Manager give such notice. The Construction manager may
terminate this Contract if the Owner fails to pay all amounts due within thirty (30) calendar days
after the Construction Manager give the Late Payment Cure Notice to the Owner. The Owner shall pay
interest on the undisputed amount due plus termination cost pursuant to the Contract Documents if
the Construction Manager terminates the Contract pursuant to this section. The Owner shall
equitably adjust the Contract Time and GMP if the Construction Manager suspends work but does not
terminate the Contract.




§ 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 progress payments already
received by the Construction Manager, less that portion of those payments attributable to the
Construction Manager’s Fee, plus payrolls for the period covered by the present Application for
Payment.




§ 7.1.5 Each Application for Payment shall be based on 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 of completion of each portion of the
Work as of the end of the period covered by the Application for Payment. The percentage of
completion shall be the lesser of (1) the percentage of that portion of the Work which has actually
been completed, or (2) the percentage obtained by







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dividing (a) the expense that 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.




Each Application for Payment shall include conditional lien releases from all subcontractors for
the payments being applied for in the then current Application for Payment.




§ 7.1.7 Subject 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 of 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 shall be included as provided
in the General Conditions;
	 
	 	.2	 	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 location agreed upon in writing;
	 
	 	.3	 	Add the Construction Manager’s Fee, less retainage of « five percent ( «5 »
%). The Construction Manager’s Fee shall be computed upon the Cost of the Work at the
rate stated in Section 5.1 or, if the Construction Manager’s Fee is stated as a fixed
sum in that Section, shall be an amount that bears the same ratio to that fixed-sum
fee as the Cost of the Work bears to a reasonable estimate of the probable Cost of the
Work upon its completion;
	 
	 	.4	 	Subtract retainage of « five» percent ( «5 » %) from that portion of the Work
that the Construction Manager self-performs;





5. Subtract retainage of ten percent (10%) from that portion of the Work that is
Subcontracted until such work is seventy-five percent (75%) complete, then is reduced to
five percent (5%).




	 	.5	 	Subtract the aggregate of previous payments made by the Owner;
	 
	 	.6	 	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 auditors in
such documentation; and
	 
	 	.7	 	Subtract amounts, if any, for which the Architect has withheld or nullified a
Certificate for Payment as provided in the General Conditions.





§ 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.




§ 7.2 Final Payment




§ 7.2.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by
the Owner to the Construction Manager when





	 	.1	 	the Construction Manager has fully performed the Contract except for the
Construction Manager’s responsibility to correct Work as provided in the General
Conditions, and to satisfy other requirements, if any, which extend beyond final
payment;
	 
	 	.2	 	the Construction Manager has submitted a final accounting for the Cost of the
Work and a final Application for Payment; and
	 
	 	.3	 	a final Certificate for Payment has been issued by the Architect.
	 
	 	.4	 	Owner reserves the right to withhold and amount up to 150% of the cost to perform all
punchlist Work until such time as Work is complete.





The Owner’s final payment to the Construction Manager shall be made no later than 30 days after the
issuance of the Architect’s final Certificate for Payment, or as follows:




« »




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§ 7.2.2 The Owner’s auditors will review and report in writing on the Construction Manager’s final
accounting within 30 days after delivery of the final accounting to the Architect by the
Construction Manager. Based upon such Cost of the Work as the Owner’s auditors report to be
substantiated by the Construction Manager’s final accounting, and provided the other conditions of
Section 7.2.1 have been met, the Architect will, within seven days after receipt of the written
report of the Owner’s auditors, either issue to the Owner a final Certificate for Payment with a
copy to the Construction Manager, or notify the Construction Manager and Owner in writing of the
Architect’s reasons for withholding a certificate as provided in the General Conditions. The time
periods stated in this Section supersede those stated in the General Conditions. The Architect is
not responsible for verifying the accuracy of the Construction Manager’s final accounting.




§ 7.2.3 If the Owner’s auditors report the Cost of the Work as substantiated by the Construction
Manager’s final accounting to be less than claimed by the Construction Manager, the Construction
Manager shall be entitled to request mediation of the disputed amount without seeking an initial
decision pursuant to Section 15.2 of A201—2007. A request for mediation shall be made by the
Construction Manager within 30 days after the Construction Manager’s receipt of a copy of the
Architect’s final Certificate for Payment. Failure to request mediation within this 30-day period
shall result in the substantiated amount reported by the Owner’s auditors becoming binding on the
Construction Manager. Pending a final resolution of the disputed amount, the Owner shall pay the
Construction Manager the amount certified in the Architect’s final Certificate for Payment.




§ 7.2.4 If, subsequent to final payment and at the Owner’s request, the Construction Manager incurs
costs described in Section 6.1.1 and not excluded by Section 6.8 to correct defective or
nonconforming Work, the Owner shall reimburse the Construction Manager such costs and the
Construction Manager’s Fee applicable thereto on the same basis as if such costs had been incurred
prior to final payment, but not in excess of the Guaranteed Maximum Price. If the Construction
Manager has participated in savings as provided in Section 5.2.1, the amount of such savings shall
be recalculated and appropriate credit given to the Owner in determining the net amount to be paid
by the Owner to the Construction Manager.




ARTICLE 8 INSURANCE AND BONDS




For all phases of the Project, the Construction Manager and the Owner shall purchase and maintain
insurance according to the requirements in the General Conditions (AIA A201).




	 	 	 
	Type of Insurance or Bond	 	Limit of Liability or Bond Amount ($0.00)
	Performance and Payment Bond 	 	To be required via Change Order only per the Contract Documents






ARTICLE 9 DISPUTE RESOLUTION




§ 9.1 Any Claim between the Owner and Construction Manager shall be resolved in accordance with the
provisions set forth in the General Conditions. However, for Claims arising from or relating to the
Construction Manager’s Preconstruction Phase services, no decision by the Initial Decision Maker
shall be required as a condition precedent to mediation or binding dispute resolution, and Section
9.3 of this Agreement shall not apply.




§ 9.2 For any Claim subject to, but not resolved by mediation pursuant to the General Conditions,
the method of binding dispute resolution shall be as follows:




(Check the appropriate box. If the Owner and Construction Manager do not select a method of binding
dispute resolution below, or do not subsequently agree in writing to a binding dispute resolution
method other than litigation, Claims will be resolved by litigation in a court of competent
jurisdiction.)




     [ «XX» ] Arbitration pursuant to Section 15.4 of AIA Document A201—2007



     [ « » ] Litigation in a court of competent jurisdiction.



     [ « » ] Other: (Specify)



     « »



« »


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« »

« »

« »




ARTICLE 10 TERMINATION OR SUSPENSION




§ 10.1 Termination Prior to Establishment of the Guaranteed Maximum Price




§ 10.1.1 Prior to the execution of the Guaranteed Maximum Price Amendment, the Owner may terminate
this Agreement upon not less than seven days’ written notice to the Construction Manager for the
Owner’s convenience and without cause, and the Construction Manager may terminate this Agreement,
upon not less than seven days’ written notice to the Owner, for the reasons set forth in the
Agreement or the General Conditions.




§ 10.1.2 In the event of termination of this Agreement pursuant to Section 10.1.1, the Construction
Manager shall be equitably compensated for Preconstruction Phase services performed prior to
receipt of a notice of termination plus reasonable demobilization and termination cost...




§ 10.1.3 If the Owner terminates the Contract pursuant to Section 10.1.1 after the commencement of
the Construction Phase but prior to the execution of the Guaranteed Maximum Price Amendment, the
Owner shall pay to the Construction Manager an amount calculated as follows, which amount shall be
in addition to any compensation paid to the Construction Manager under Section 10.1.2:





	 	.1	 	Take the Cost of the Work incurred by the Construction Manager to the date of
termination;
	 
	 	.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 that 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; and
	 
	 	.3	 	Subtract the aggregate of previous payments made by the Owner for
Construction Phase services.





The Owner shall also pay the Construction Manager fair compensation, for any equipment owned by the
Construction Manager which the Owner elects to retain and which the Construction Manager agrees to
sell to the Owner that is not otherwise included in the Cost of the Work under Section 10.1.3.1. To
the extent that the Owner elects to take legal assignment of subcontracts and purchase orders
(including rental agreements), the Construction Manager shall, as a condition of receiving the
payments referred to in this Article 10, execute and deliver all such papers and take all such
steps, including the legal assignment of such subcontracts and other contractual rights of the
Construction Manager, as the Owner may require for the purpose of fully vesting in the Owner the
rights and benefits of the Construction Manager under such subcontracts or purchase orders. All
Subcontracts, purchase orders and rental agreements entered into by the Construction Manager will
contain provisions allowing for assignment to the Owner as described above.




If the Owner accepts assignment of subcontracts, purchase orders or rental agreements as described
above, the Owner will reimburse or indemnify the Construction Manager for all costs arising under
the subcontract, purchase order or rental agreement, if those costs would have been reimbursable as
Cost of the Work if the contract had not been terminated. If the Owner chooses not to accept
assignment of any subcontract, purchase order or rental agreement that would have constituted a
Cost of the Work had this agreement not been terminated, the Construction Manager will terminate
the subcontract, purchase order or rental agreement and the Owner will pay the Construction Manager
the costs necessarily incurred by the Construction Manager because of such termination.




§ 10.2 Termination Subsequent to Establishing Guaranteed Maximum Price




Following execution of the Guaranteed Maximum Price Amendment and subject to the provisions of
Section 10.2.1 and 10.2.2 below, the Contract may be terminated as provided in the General
Conditions.




§ 10.2.1 If the Owner terminates the Contract after execution of the Guaranteed Price Amendment,
the amount payable to the Construction Manager pursuant to the General Conditions shall not exceed
the amount the Construction Manager would otherwise have received pursuant to Sections 10.1.2 and
10.1.3 of this Agreement.




§ 10.2.2 If the Construction Manager terminates the Contract after execution of the Guaranteed
Maximum Price Amendment, the amount payable to the Construction Manager under the General
Conditions shall not exceed the amount the Construction Manager would otherwise have received under
Sections 10.1.2 and 10.1.3 above.




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§ 10.3 Suspension




The Work may be suspended by the Owner as provided in Article the General Conditions. In such
case, the Guaranteed Maximum Price and Contract Time shall be increased as provided in the General
Conditions, except that the term “profit” shall be understood to mean the Construction Manager’s
Fee as described in Sections 5.1 and 5.3.5 of this Agreement.




ARTICLE 11 MISCELLANEOUS PROVISIONS




§ 11.1 Terms in this Agreement shall have the same meaning as those in A201—2007.




§ 11.2 Ownership and Use of Documents




The General Conditions shall apply to both the Preconstruction and Construction Phases.




§ 11.3 Governing Law




The General Conditions shall apply to both the Preconstruction and Construction Phases.




§ 11.4 Assignment




The Owner and Construction Manager, respectively, bind themselves, their agents, successors,
assigns and legal representatives to this Agreement. Neither the Owner nor the Construction Manager
shall assign this Agreement without the written consent of the other, except that the Owner may
assign this Agreement to a lender providing financing for the Project if the lender agrees to
assume the Owner’s rights and obligations under this Agreement. Except as provided in the General
Conditions, 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.




§ 11.5 The Construction Manager shall achieve Substantial Completion of the Work, or a designated
portion thereof, within the time period (“Contract Time”) or upon the date (“Completion Date”)
established in Amendment No. 1 or as modified by Change Order.




§ 11.6 The Owner and Construction Manager acknowledge that should the Construction Manager not
achieve Substantial Completion within the Contract Time or by the Completion Date, the Owner’s
damages would be extremely difficult to calculate. Therefore, should the Construction Manager not
achieve Substantial Completion within the Contract Time or by the Completion Date, the Construction Manager
shall pay the Owner per each working day the amount of:



Fifteen
Thousand Dollars ($15,000) for Project Substantial Completion

Ten Thousand Dollars ($10,000) for Data/Communications Room Substantial Completion



The total of payment for each Substantial Completion shall not exceed Two Hundred Thousand Dollars
($200,000), with the aggregate amount not exceeding $300,000.




§ 11.7 Construction Manager agrees that it will take all actions and sign all documents reasonably
required by Owner in connection with applying for and receiving sales/use tax refunds related to
the project(s) as required by Nebraska Advantage Act statutes and applicable Nebraska Department of
Revenue requirements. Such actions will include but are not limited to the preparation, execution
and submission of the “Contractors Certificate of Tax Paid” and the “Purchasing Agent Appointment”
in a form similar to the documents attached hereto as Exhibit 3 and Exhibit 4 and by reference made
a part of this contract.




« »




ARTICLE 12 SCOPE OF THE AGREEMENT




§ 12.1 This Agreement represents the entire and integrated agreement between the Owner and the
Construction Manager and supersedes all prior negotiations, representations or agreements, either
written or oral. This Agreement may be amended only by written instrument signed by both Owner and
Construction Manager.




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§ 12.2 The following documents comprise the Agreement:





	 	.1	 	AIA Document A133—2009, Standard Form of Agreement Between Owner and
Construction Manager as Constructor where the basis of payment is the Cost of the Work
Plus a Fee with a Guaranteed Maximum Price
	 
	 	.2	 	AIA Document A201—2007, General Conditions of the Contract for Construction
(the “General Conditions”).
	 
	 	 	 	« »
	 
	 	.4:	 	 
	 
	 	 	 	« »
	 
	 	.5	 	Other documents:


(List other documents, if any, forming part of the Agreement.)





	 	 	 

	 

	 	Exhibit 1 — Construction Managers Labor Rates
	 
	 	 
	 

	 	Exhibit 2 — General Conditions — Project Cost Assignment Matrix
	 
	 	 
	 

	 	Exhibit 3 — Contractors Certificate of Tax Paid
	 
	 	 
	 

	 	Exhibit 4 — Purchasing Agent Appointment







	 	 	 	« »





This Agreement is entered into as of the day and year first written above.




	 	 	 

	/s/ Karen Ganzlin

	 	/s/ Ronald C. Duce
	 

	 	 
	OWNER (Signature)

	 	CONSTRUCTION MANAGER (Signature)
	 
	 	 
	Karen Ganzlin, Chief Human Resources Officer

	 	Ronald C. Duce, Senior Vice President
	 

	 	 
	(Printed name and title)

	 	(Printed name and title)






THIS CONTRACT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES





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