itaia..." Document A

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1 itaia..." Document A 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 Minnesota State Colleges and Universities MnSCU AIA Document A CM@r AGREEMENT made as of (date): See Attachment to Standard Form of Agreement Between Owner and Construction Manager as Constructor MnSCU AIA Document Al CM@r hereinafter "MnSCU Al CM@r Attachment". BETWEEN the Owner: see MnSCUAl CM@r Attachment and the Construction Manager: see MnSCU A CM@r Attachment for the following Project: see MnSCU Al CM@r Attachment The Architect: see MnSCU Al CM@r Attachment The Owner's Representative: see MnSCU Al CM@r Attachment The Owner's Delegated Project Manager: see MnSCU Al CM@r Attachment The Construction Manager's Designated Representative: see MnSCU Al CM@r Attachment The Architect's Desi gn ated Representative: see MnSCU Al CM@r Attachment ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. A vertical line in the left margin of this document indicates where the author has added necessary information and where the author has added to or deleted from the original AIA text. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. AIA Document A , General Conditions of the Contract for Construction, is adopted in this document by reference. Do not use with other general conditions unless this document is modified. The Owner and Construction Manager agree as follows. AIA Document A133 m (formerly A121 m e Mc ). Copyright 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA., Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA., Document, or any portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. User Notes: MnSCU Contract effective 19 February 2010 (rev 9/25/12) (rev 3/11/15) (rev 9/22/15) (rev 12/22/15) ( ) 1

2 TABLE OF ARTICLES 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: (1) this Agreement, (2) MnSCU AIA Document A20I T11 L2007 CM@r, General Conditions of the Contract for Construction, as amended by the Owner for use with the MnSCU AIA Al CM@r, ("MnSCU AIA Document A20I CM@r"), (3) Drawings, Specifications, Addenda issued prior to the execution of this Agreement and accepted, in writing, by the Owner, ( 4) the terms and conditions contained in the request for proposal for this Project ("RFP") and all addenda to the RFP, with respect to the Project that was dated (see MnSCU AI CM@r Attachment) and (5) other documents listed in this Agreement, and Modifications issued after execution of this Agreement and accepted, in writing, by the Owner; all of which form the Contract and are as fully a pait 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 and identified in the Guaranteed Maximum Price Amendment and revisions prepared by the Architect and furnished by the Owner as described in Section The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. 1.2 RELATIONSHIP OF THE PARTIES The Construction Manager accepts the relationship of trust and confidence established by this Agreement and covenants with the Owner to cooperate with the Architect and exercise the Construction Manager's skill and judgment in furthering the interests of the Owner; 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 Owner's interests. The Owner agrees to furnish or approve information required by the Construction Manager and to make payments to the Construction Manager in accordance with the requirements of the Contract Documents. AIA Document A (formerly A121 CMc ). Copyright 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. User Notes: MnSCU Contract effective 19 February 2010 (rev 9/25/12) (rev 3/11/15) (rev 9/22/15) (rev 12/22/15) ( ) 2

3 1.3 GENERAL CONDITIONS For the Preconstruction Phase, MnSCU AIA Document A 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 MnSCU AIA Document A which document is incorporated herein by reference. 1.4 CONTRACT SUM, CONTRACT TIME AND CHANGES IN THE WORK The Contract Sum is the actual Cost of the Work as defined in Section 6.1.I plus the Construction Manager's Fee as defined in Section 5.1. The Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work as certified by the Architect in accordance with Section 9.8 ofmnscu AIA Document A The Contract Time shall be measured f r om the date of commencement of the Construction Phase as established pursuant to Section of this Agreement. Changes in the Work shall be governed by Section 5.2 of this Agreement and not by Article 7 ofmnscu AIA Document A CM@r. If, however, the Contract Time has been established in accordance with Section , Article 7 ofmnscu AJA Document A CM@r shall control adjustments to the Contract Time. 1.5 USE OF ENTERPRISE PROJECT MANAGEMENT SYSTEM AND SOFTWARE Use of the Enterprise Project Management System and its software (hereafter EPMS) shall be provided in Section of the MnSCU AIA A CM@r. ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager shall perform the services described in this Article 2. 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 Construction Manager may agree for the Construction Phase to commence prior to completion of the Preconstruction Phase, in which case, both phases may, upon a determination by the Owner, proceed concurrently. The Construction Manager shall identify a representative authorized to act on behalf of the Construction Manager with respect to the Project, as stated in the MnSCU Al CM@r Attachment. 2.1 PRECONSTRUCTION PHASE The Construction Manager shall provide a preliminaiy evaluation of the Owner's program, schedule and construction budget requirements, each in terms of the other. Within fourteen days of the date hereof, the Construction Manager shall provide a preliminary evaluation of the Owner's Project program, schedule and the Owner's Cost of the Work, each in terms of the other. The Construction Manager acknowledges that the Cost of the Work to be performed by the Construction Manager hereunder and the Construction Manager's fee (including but not limited to all expenses authorized hereunder that are typically referred to as "reimbursable expenses"), and all other compensation payable hereunder is (see MnSCU Al CM@r Attachment). The Construction Manager shall assess the Architect's estimates of construction cost to determine if probable construction cost estimates will meet or exceed the Cost of the Work. If cost overruns are anticipated, the Construction Manager shall propose alternates to bring the current design and estimates in line with the Cost of the Work. Unless otherwise mutually agreed in writing by the Owner and the Construction Manager, all such alternates shall be in compliance with MnSCU's current Facilities Design Standards which are available at the Owner's website, finance. mn scu. ed u/faci I iti es/ desi gn-constructi on/resources.htm I CONSULTATION The Construction Manager shall schedule and conduct meetings with the Owner, Owner's Representative and Architect, to discuss such matters as procedures, progress, coordination and scheduling of the Work. The Construction Manager shall advise and consult with the Owner, the Owner's Representative 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, the Owner's Representative, 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 desi gn s or materials, preliminary budgets, life-cycle data, and possible cost reductions. Any recommended deviation f r om the MnSCU Facilities Design Standards by the Construction Manager must be approved, in writing, by the Owner PRELIMINARY PROJECT SCHEDULE AIA Document A133 rn (formerly A121 me Mc ). Copyright 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA"' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA "' Document, or any portion of it, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. User Notes: MnSCU Contract effective 19 February 201 O (rev 9/25/12) (rev 3/11/15) (rev 9/22/15) (rev 12/22/15) ( ) 3

4 When Project requirements in Section 3.1.l have been sufficiently identified, the Construction Manager shall prepare and periodically update a Project schedule for the Architect's review and the Owner's acceptance, which schedule shall be in a critical path method format and show the actual and planned Project schedule to date. 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:.1 submission of the Guaranteed Maximum Price proposal;.2 preparation and processing of submittals;.3 times of commencement and completion required of each Subcontractor;.4 ordering and delivery of products, including those requiring long-lead time procurement;.5 occupancy requirements of the Owner showing portions of the Project having occupancy priority and proposed date of Substantial Completion;.6 activity sequence; and.7 milestone dates for information. If preliminary Project schedule updates indicate that previously approved schedules may not be met, the Construction Manager shall make appropriate recommendations to the Owner, the Owner's Representative, and the Architect PHASED CONSTRUCTION The Construction Manager shall provide recommendations to the Owner, the Owner's Representative, and the Architect with regard to accelerated or fast-track scheduling, procurement, or phased construction if phased construction is appropriate for the Project. The Construction Manager shall take into consideration cost reductions, cost information, constructability, time of performance, availability oflabor and materials, provisions for temporary facilities and procurement and construction scheduling issues. The Construction Manager shall plan and organize site staging, phasing, access controls, material handling, storage and equipment requirements for each phase of the Project, except as modified by the specific terms of this Agreement. The Construction Manager acknowledges and agrees that construction will be staged and managed to provide Substantial Completion(s) of the Project and Occupancy of the Project by the date(s) agreed to, in writing, by the Owner and the Construction Manager at the time the Guaranteed Maximum Price is submitted to the Owner PRELIMINARY COST ESTIMATES Based on the preliminary design and other design criteria prepared by the Architect, the Construction Manager shall, within 14 days of execution of this Agreement, prepare preliminary estimates of the Cost of the Work or the cost of program requirements in a CSI (Construction Specification Institute) "division" type format using area, volume or similar conceptual estimating techniques for the Owner's, Owner's Representative's and Architect's review and Owner's acceptance. If the Architect, Owner's Representative, or Construction Manager suggest alternative materials and systems, the Construction Manager shall provide cost evaluations of those alternative materials and systems 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, Architect and Construction Manager, estimates of the Cost of the Work of increasing detail and refinement in a CSI "division" type format 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 Owner's, Owner's Representative's and Architect's review and the Owner's acceptance. The Construction Manager shall inform the Owner, Owner's Representative and Architect when estimates of the Cost of the Work exceed the latest approved estimated cost of the Project and make recommendations for corrective action SUBCONTRACTORS AND SUPPLIERS The Construction Manager shall develop bidders' interest in the Project and furnish to the Owner, the Owner's Representative and the Architect for their information a list of possible subcontractors, including suppliers who are to furnish materials or equipment fabricated to a special design, f r om whom proposals will be requested for each principal portion of the Work pursuant to section The Owner may designate specific persons f r om whom, AIA Document A (formerly A121 CMc ). Copyright 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA "' Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA "' Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. User Notes: MnSCU Contract effective 19 February 2010 (rev 9/25/12) (rev 3/11/15) (rev 9/22/15) (rev 12/22/15) ( ) 4

5 or entities f r om which, the Construction Manager shall obtain bids. All such subcontractors and suppliers shall first have been pre-qualified by the Construction Manager pursuant to the requirements of Minnesota Statutes l 6C.34, subdivision 3(e). The Owner and Architect will promptly reply in writing to the Construction Manager if the Owner or Architect knows of any objection to such subcontractor or supplier. The receipt of such list shall not require the Owner or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the Owner to object to or reject any proposed subcontractor or supplier. The Construction Manager shall not contract with any subcontractor or supplier to whom the Owner has so objected The Construction Manager shall prepare, for the Owner's, Owner's Representative's and Architect's, review and the Owner's acceptance, a procurement schedule for items that require long-lead-time procurement. 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. Upon the establishment of the Guaranteed Maximum Price, the Owner may assign all contracts for these items to the Construction Manager and if so assigned the Construction Manager shall thereafter accept responsibility for them. The cost of any such items that are ordered for the Project may be included in the Construction Manager's Guaranteed Maximum Price proposal 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 pait of the Guaranteed Maximum Price. Nevertheless, the Construction Manager represents that it is experienced in providing estimates and scheduling for construction projects similar in scope and size to the Project and shall use its best efforts to provide accurate estimating and scheduling services for the Project. The Construction Manager is not required to asce1tain that the Drawings and Specifications 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, the Owner's Representative and Owner any nonconformity discovered by or made known to the Construction Manager NOTICES AND COMPLIANCE WITH LAWS The Construction Manager shall comply with and give notices required by 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 Within 30 days of the Construction Manager's receipt of Design Development documents for the Project, the Construction Manager shall prepare a Guaranteed Maximum Price proposal for the entire Project for the Owner's, Owner's Representative's and Architect's review and the Owner's 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 2.2.2, and the Construction Manager's Fee CONSTRUCTION CONTINGENCY 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, a contingency ( the "Construction Contingency") sufficient to cover costs associated with fi.nther development of the Drawings and Specifications by the Architect that is consistent with the Contract Documents and reasonably inferable therefrom. The Construction Contingency shall be reflective of the risk inherent in the state of completion of the Drawings and Specifications at the time of Guaranteed Maximum Price proposal submission. Such further development does not include such things as changes in scope or systems both of which, ifrequired, shall be incorporated by Change Order..1 In submitting the Guaranteed Maximum Price proposal, the Construction Manager represents that it will provide every item, system or element of the Work that is identified, shown or specified in the Guaranteed Maximum Price proposal, along with all necessary or ancillary materials and equipment to install each of them completely and make fully operational, unless specifically excluded. Upon Owner's acceptance of the Guaranteed Maximum Price, the Construction Manager shall not be entitled to any increase in the Guaranteed Maximum Price due to the continued refinement of the Drawings and Specifications of the absence or addition of any detail or AIA Document A133 m (formerly A121 me Mc ). Copyright 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. User Notes: MnSCU Contract effective 19 February 2010 (rev 9/25/12) (rev 3/11/15) (rev 9/22/15) (rev 12/22/15) ( ) 5

6 specification that may be required in order to complete the construction of the Project as described in and reasonably inferable f r om the Guaranteed Maximum Price proposal..2 In submitting the Guaranteed Maximum Price proposal, the Construction Manager represents that the Construction Contingency shall be utilized to cover the additional costs resulting f r om unforeseen conditions and events not evidenced at the time of Guaranteed Maximum Price proposal submission, to the extent that such conditions or events do not result in or constitute a change in the Work. Any claim against the Construction Contingency shall be submitted in accordance with Atticle Examples of such unforeseen conditions and events include, but are not limited to, the following:.1 Unanticipated cost overruns on the procurement of Subcontracts or other purchases of materials or labor costs,.2 Expediting or acceleration costs required to meet the construction schedule for the Work per the Guaranteed Maximum Price Amendment,.3 Coordination errors a Construction Management professional should have detected in the design drawings, and.4 Construction Manager or Subcontractor rework or cost increases caused by lack of coordination or communication with the Architect or other Subcontractors The Construction Contingency shall be adjusted to reflect net savings or net losses resulting f r om the award of subcontracts. The amount of the adjustment to the Construction Contingency shall be determined by subtracting the face amount of each subcontract at the time the subcontract is entered into f r om the amount allocated in the estimated Cost of the Work (attached to the Guaranteed Maximum Price proposal) to be performed under such subcontract After subcontracts comprising 50% of the value of the estimated Cost of the Work are awarded, funds f r om the Construction Contingency may be used by the Owner for Owner-initiated Change Orders, provided the use of the Construction Contingency is mutually agreed upon by the Owner and the Construction Manager. Should the Construction Manager not agree to the release of contingency funds to the Owner, the Construction Manager shall provide a risk analysis to the Owner which provides justification for the Construction Manager's need for the contingency funds After Construction of the Work is 75% complete based upon Applications for Payment, the Construction Contingency may be used by the Owner for Owner Initiated Change Orders provided the use of the Construction Contingency is mutually agreed upon by the Owner and the Construction Manager. Should the Construction Manager not agree to the release of contingency funds to the Owner, the Construction Manager shall provide a risk analysis to the Owner which provides justification for the Construction Manager's need for the contingency funds Construction Manager may permit funds to be expended f r om the Construction Contingency of the Cost of Work incurred for completion of the Work; provided, however, the Owner approves of such use of the contingency and approval of the contingency shall not be unreasonably withheld. At1y expenditures of the Construction Contingency shall be detailed on the Construction Manager's monthly report prior to requesting payment of the Work in question.. 1 The Owner may elect to not require Owner approval for Construction Contingency expenditures allowed in this contract under five thousand dollars ($5,000.00) per occurrence as long as the cumulative sum total of such expenditures does not exceed twenty-five percent (25%) of the Construction Contingency amount allocated at the time of the Guaranteed Maximum Price Amendment 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 General Conditions of the Contract for Construction;.2 A list of allowances and a statement of their basis;.3 A I ist 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;.4 A statement of the proposed Guaranteed Maximum Price, including a statement of the estimated Cost of the Work (in a CSI- format) organized by trade categories or systems, allowances, contingency, and the Construction Manager's Fee; AIA Document A (formerly A121 CMc ). Copyright 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA" Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA "' Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. User Notes: MnSCU Contract effective 19 February 201 O (rev 9/25/12) (rev 3/11/15) (rev 9/22/15) (rev 12/22/15) ( ) 6

7 .5 A construction schedule for the Work in accordance with Section 3.10 of the MnSCU AIA Document A CM@r, including Owner's occupancy requirements as set forth in Section herein;.6 The anticipated date(s) of Substantial Completion upon which the proposed Guaranteed Maximum Price is based, consistent with the Substantial Completion date(s) provided in Section herein;.7 A date upon which the Construction Manager will hold the Guaranteed Maximum Price open;.8 A list of alternates and pricing therefore;.9 Unit prices and assumptions of anticipated unit quantities;.10 The amount and basis for any contingency required pursuant to Section herein;.11 Identification of those portions of the Work that the Construction Manager intends to self-perform; and.12 The Construction Manager's certification that the pricing and costs contained in the Guaranteed Maximum Price proposal are accurate, complete and current as of the date of the proposal 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 The Construction Manager shall meet with the Owner, Owner's Representative, and Architect to review the Guaranteed Maximum Price proposal. In the event that the Owner, Owner's Representative or Architect discover any inconsistencies or inaccuracies in the information presented, they shall notify the Consh uction Manager, who shall, within three business days ofreceipt of such notification, make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis, or both. The Owner and the Construction Manager shall cooperate with each other to arrive at and agree to a Guaranteed Maximum Price Amendment modifying the Guaranteed Maximum Price proposal Upon acceptance of a Guaranteed Maximum Price and any modifications thereof, the Owner and Construction Manager shall execute the Guaranteed Maximum Price Amendment amending this Agreement. The Guaranteed Maximum Price Amendment shall set forth the agreed upon Guaranteed Maximum Price with the information and assumptions upon which it is based 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 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 or the Owner's Representative will promptly furnish those revised Drawings and Specifications to the Construction Manager as they are revised. The Construction Manager shall notify the Owner, the Owner's Representative, and Architect of any inconsistencies between the Guaranteed Maximum Price Amendment and the revised Drawings and Specifications. (Paragraph deleted) 2.3 CONSTRUCTION PHASE GENERAL The Construction Phase shall commence upon Owner's execution of the Guaranteed Maximum Price Amendment and issuance of a Notice to Proceed (Paragraph deleted) ADMINISTRATION Those portions of the Work that the Construction Manager does not customarily perform with the Construction Manager's own personnel shall, subject to the limitation contained in Section 2.1.6, be performed under subcontracts or by other appropriate agreements with the Construction Manager. The Construction Manager shall seek at least three competitive sealed bids f r om Subcontractors and from suppliers of materials or equipment and shall deliver such bids for review to the Owner, the Owner's Representative and the Architect. The Construction Manager shall meet with the Owner, the Owner's Representative and the Architect to review the bids. The Construction Manager shall then determine, in consultation with the Owner, which bids will be accepted. The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has AIA Document A133m (formerly A121 me Mc ). Copyright 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 15:29:39 on 09/15/2016 under Order No _ 1 which expires on 11/14/2018, and is not for resale. User Notes: MnSCU Contract effective 19 February 2010 (rev 9/25/12) (rev 3/11/15) (rev 9/22/15) (rev 12/22/15) ( ) 7

8 reasonable objection. Also see Section 5 of the MnSCU AIA Document A CM@r for fiirther detail and requirements as to the Construction Manager's use of subcontractors. (Paragraph deleted) It is understood and anticipated that the Construction Manager may desire to perform portions of the Work with its own forces. The Construction Manager will not be allowed to select to perform portions of the Work for self-performance without the Owner's affirmative request that the Construction Manager be allowed to do such work or prior written approval of the Construction Manager's request. The Construction Manager shall be considered to be a "qualified firm" in accordance with Minnesota Statutes 16C.34, subdivision 3(3) for the performance of such work. In each of these instances on occasions when the Construction Manager is competing by bid for trade contract work, the Owner, Owner's Representative or Architect will solicit competitive sealed bids or proposals from at least two other qualified subcontractors as well as from the Construction Manager, and all of these will be submitted to the Owner (together with such other information as the Owner may deem appropriate) and thereafter the Owner will determine whether the Construction Manager or one of the other bidders or proposers will perform the work in question. Alternatively, the Construction Manager, as the Contractor, may self-perform work specifically identified and agreed to, in w r iting, by the Owner. The cost of the self-performed work shall be included in the Guaranteed Maximum Price and will include; (1) competitively bid materials and supplies, and (2) labor hours at wage rates that were competitively submitted in the bid or RFP proposal referred to above 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 lf 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 The Owner may, for cause or without cause, object to any bidder that may be considered such a "related patty" without any monetary consequence to the Construction Manager or any other entity, and the Construction Manager may not use such objection as a basis for increasing the Guaranteed Maximum Price or Contract time The Construction Manager shall, in cooperation with the Owner, Owner's Representative and Architect, schedule and conduct regular periodic construction progress meetings to discuss with them and any other person or entity that any one of them requests attend, such meeting, matters such as procedures, progress, coordination, scheduling, and status of the Work. The Construction Manager shall prepare and promptly distribute minutes, including a description of any decisions made at such meetings to the Owner, Owner's Representative, Architect and others as requested by the Owner Upon the execution of the Guaranteed Maximum Price Amendment, the Construction Manager shall prepare and submit to the Owner, Owner's Representative, and Architect a submittal schedule for the Work in accordance with Section 3.10 of MnSCU AIA Document A201 TM_2007 CM@r, including Owner's occupancy requirements as set forth in Section 2.1.herein 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, Owner's Representative, and Architect, showing (I) percentages of completion of the Work, (2) the percentage of the budget for the completion of the Project that has been expended, (3) changes to the budget and schedule for the Project, ( 4) and other information required by the Owner, Owner's Representative, or Architect. The Construction Manager shall also keep, and make available to the Owner, Owner's Representative. and Architect, a daily log containing a record for each day of weather, portions of the Work in progress, number of workers on site, names of all subcontractors working on the Project, identification of equipment on site, problems that might affect progress of the work, accidents, injuries, and other information required by the Owner. (Paragraph deleted) The Construction Manager shall develop a system of cost and quality control for the Work, including regular monitoring of actual costs or 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, Owner's Representative, and Architect and shall provide this information in its monthly reports to the AIA Document A133"' (formerly A121 "'CMc ). Copyright and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. User Notes: MnSCU Contract effective 19 February 201 O (rev 9/25/12) (rev 3/11/15) (rev 9/22/15) (rev 12/22/15) ( ) 8

9 Owner, Owner's Representative, and Architect, in accordance with Section above. The Construction Manager shall compile and delivers to the Owner and the Architect all record documents and documents required for closeout of the project. 2.4 PROFESSIONAL SERVICES Section of the MnSCU AIA Document A shall apply to both the Preconstruction and Construction Phases. 2.5 HAZARDOUS MATERIALS Section 10.3 of the MnSCU AIA Document A shall apply to both the Preconstruction and Construction Phases. ARTICLE 3 OWNER'S RESPONSIBILITIES 3.1 INFORMATION AND SERVICES REQUIRED OF THE OWNER The Owner or the Owner's Representative shall provide information with reasonable promptness, regarding requirements for and limitations on the Project as may be reasonably requested f r om time to time by the Construction Manager, 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 STRUCTURAL AND ENVIRONMENT AL TESTS, SURVEYS AND REPORTS During the Preconstruction Phase, the Owner or the Owner's Representative shall furnish the following information or services with reasonable promptness. The Owner or the Owner's Representative shall also furnish any other information or services under the Owner's or the Owner's Representative'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. Except to the extent that the Construction Manager knows of any inaccuracy or error, the Construction Manager shall be entitled to reasonably rely on the accuracy of information and services furnished by the Owner in its planning and performance of the Work. The Construction Manager shall promptly notify the Owner, the Owner's Representative and the Architect of any inaccuracy it discovers The Owner or the Owner's Representative 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 The Owner or the Owner's Representative 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, but only to the extent that it has possession or knowledge of such information. All the information on the survey shall be referenced to a Project benchmark The Owner or the Owner's Representative, when such services are requested, shall coordinate the 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 During the Construction Phase, the Owner or the Owner's Representative shall furnish information or coordinate services required of the Owner by the Contract Documents with reasonable promptness. The Owner or the Owner's Representative shall also furnish any other information or coordinate any other services under the Owner's or the Owner's Representative's control and relevant to the Consh uction Manager's performance of the Work with reasonable promptness after receiving the Construction Manager's written request for such information or services. AIA Document A133 rn (formerly A121 rn cmc ). Copyright 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA" Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA" Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. User Notes: MnSCU Contract effective 19 February 2010 (rev 9/25/12) (rev 3/11/15) (rev 9/22/15) (rev 12/22/15) ( ) g

10 The Owner and the Owner's Representative shall not have any responsibility for identifying all services, information, surveys and reports that may be required for the Project. 3.2 OWNER'S DESIGNATED REPRESENTATIVE The Owner acts through the Vice Chancellor - Chief Financial Officer of the Minnesota State Colleges and Universities, or their authorized representative(s). The powers, duties and authorities of the Owner and the authority of the Owner to enter into a contract for the services of an Owner's Representative are as reflected in Article of the MnSCU AIA A CM@r. The Vice Chancellor and/or the delegated project manager and the Owner's Representative, if one is being used, are identified in the MnSCU AIA Al CM@r Attachment LEGAL REQUIREMENTS. The Owner may, at its sole option and discretion, 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, but is not required to do so. 3.3 ARCHITECT The Owner shall retain an Architect to provide services, duties and responsibilities as described in MnSCU AIA Document B103 CM@r-2007, Standard Form of Agreement Between Owner and Architect for a Large or Complex Project as currently amended by the Owner, including any additional services requested by the Construction Manager and approved by the Owner that are necessary for the Preconstruction and Construction Phase services under this Agreement. The "Architect" as used in all references in this Agreement is identified in the MnSCU AIA Al CM@r Attachment. ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES 4.1 COMPENSATION For the Construction Manager's Preconstruction Phase services described in Section 2.1, the Owner shall compensate the Construction Manager as follows: (see MnSCU Al CM@r Attachment) Reimbursable expenses for Preconstruction Phase Services shall be limited to the following:.1 Pre-authorized travel and subsistence costs (as long as travel time is not also billed as professional service time);.2 Pre-authorized reports required by any unique characteristic of the Project;.3 Pre-authorized computer studies and videotapes, and (see MnSCU Al CM@r Attachment) Records of expenses and of services performed in the Preconstruction Phase shall be maintained in accordance with Section 6.11 hereof. 4.2 PAYMENTS Unless otherwise agreed, payments for services shall be made monthly following presentation of the Construction Manager's invoice and, where applicable, shall be in proportion to services performed. Each such invoice shall be in writing, in a form acceptable to the Owner, and shall explain in reasonable detail the basis therefor, shall refer to the Owner's purchase order number and Project Number as applicable Payments are due and payable pursuant to the requirements of Minnesota Statutes I 6A.124. 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 Preconstruction Phase services fee and the Cost of the Work as defined in Section plus the Construction Manager's Fee The Construction Manager's Fee: AIA Document A (formerly A121 CMc ). Copyright 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA "' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA "' 10 Document, or any portion of it, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. User Notes: MnSCU Contract effective 19 February 2010 (rev 9/25/12) (rev 3/11/15) (rev 9/22/15) (rev 12/22/15) ( )

11 (Paragraph deleted) (see MnSCU Al Attachment ) The method of adjustment of the Construction Manager's Fee for changes in the Work: (see MnSCU Al CM@r Attachment ) Limitations, if any, on a Subcontractor's overhead and profit for increases in the cost of its portion of the Work: (see MnSCU Al CM@r Attachment) Unit prices, if any, shall be established in the Guaranteed Maximum Price amendment. (Fable deleted) 5.2 GUARANTEED MAXIMUM PRICE The Construction Manager guarantees that the contract amount shall not exceed the Guaranteed Maximum Price set forth in the Guaranteed Maximum Price Amendment, as it may be amended from time to time in accordance with the provisions hereof. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Construction Manager without reimbursement by the Owner. In the event that upon full completion of the Work, the Cost of the Work and the Construction Manager's Fee thereon is less than the Guaranteed Maximum Price as may be adjusted by future change orders (the "Cost Savings"), then 100% of the Costs Savings will be credited to the Owner. Any unexpended allowance amounts and unexpended contingency amounts shall be 100% credited to the Owner The Guaranteed Maximum Price is subject to additions and deductions by Change Order as provided in the Contract Documents and the Date(s) of Substantial Completion shall be subject to adjustments as provided in the Contract Documents. 5.3 CHANGES IN THE WORK The Owner may, without invalidating the Contract, order minor 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 the MnSCU AIA Document A CM@r, but may not authorize any increase in the Guaranteed Maximum Price Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to the execution of the Guaranteed Maximum Price Amendment may be determined by any of the methods listed in Section of the MnSCU AIA Document A CM@r, provided that the provisions of Section , thereof (referenced in Section ) (markup percentage requirements) shall not be used In calculating adjustments to subcontracts, the terms "cost" and "fee" as used in Section of the MnSCU AIA Document A CM@r and the term "costs" as used in Section of the MnSCU AIA Document A CM@r shall have the meanings assigned to them in the MnSCU AIA Document A CM@r and shall not be modified by Sections 5.1 (except Section relating to limitations on subcontractors' profit and overhead) of this Agreement In calculating adjustments to the Guaranteed Maximum Price, the terms "cost" and "costs" as used in the above-referenced provisions of the MnSCU AIA Document A CM@r, 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. Futiher, the Construction Manager will not be permitted to charge or assess the Construction Manager's fee on Change Orders or Construction Change directives until such Change Orders or Construction Change Directives, in the aggregate, exceed in value five percent (5%) of the Guaranteed Maximum Price for the Project. (Paragraph deleted) AIA Document A133 m (formerly A121 CMc ). Copyright 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA 11 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. User Notes: MnSCU Contract effective 19 February 201 O (rev 9/25/12) (rev 3/11/15) (rev 9/22/15) (rev 12/22/15) ( )