Contract Sum and Guaranteed Maximum Price. 3.01 As consideration for the full and complete performance of the Work and all of Construction Manager’s obligations hereunder, Owner shall pay to Construction Manager a sum of money (“Contract Sum”) equal to the total of (i) a fee (“Construction Manager’s Fee”), which includes all overhead (including home office personnel and expenses not otherwise reimbursable under Section 3.10 hereof) and profit; (ii) General Conditions, as provided in Section 3.03; (iii) General Requirements ( (General Conditions — non- management costs), as provided in Section 3.11; (iv) Construction Manager’s Reimbursable Costs as defined in Article IV hereof; and (v) Contingency, as provided in Section 3.09. 3.02 The Construction Manager’s Fee which includes all costs not otherwise identified in this Agreement and profit shall be one and one half (1.5%) percent (the “Fee”) of the GMP (defined in Section 3.04), not to exceed Six Hundred Ninety-Nine Thousand Six Hundred Thirty-Six ($699,636.00) Dollars. Construction Manager has agreed to waive a fee for preconstruction services which are performed prior to the establishment of the GMP and not included in the GMP. 3.03 The Construction Manager’s General Conditions Costs are more fully defined in Section 3.10 below, and shall not exceed One Million Sixty-Six Thousand ($1,066,000.00) Dollars, subject however to Section 3.04 regarding line item costs and overruns. 3.04 The Guaranteed Maximum Price (“GMP”) shall be Forty-Six Million Six Hundred Forty-Two Thousand Three Hundred Ninety-Eight ($46,642,398.00) Dollars, as set forth more fully in Exhibit “E”. Unless adjusted by Change Order pursuant to Article XXII below, in no event shall the Contract Sum exceed the GMP. The GMP will be made up of line item costs, all of which will total the contract value. No guarantee exists as to the cost of any individual line item of Work, including the General Conditions and Reimbursable Costs. Savings on any line item, with the exception of insurance cost savings, may be transferred to cover possible overruns on any other line item, including Contingency. Contingency, however, shall not be used to offset overruns on other line items, except as permitted pursuant to Section 3.09. 3.05 If Construction Manager completes that Work for less than the GMP, excluding Construction Manager’s Accelerated Delivery Fee if applicable, then the Owner shall be entitled to receive an amount equal to eighty (80%) percent of such savings. 3.06 In the event that the GMP is adjusted by Change Order as defined in Article XXII below, Construction Manager shall be entitled to a Construction Manager’s fee of one and one half (1.5%) percent of the Trade Contractor Costs and its actual increased General Conditions Costs, as evidenced to Owner. In the event of a deductive Change Order, the GMP shall be reduced by an amount equal to the value of the work that is the subject of such Change Order. 3.07 Payments on account of the Construction Manager’s Fee and General Conditions, shall be paid monthly, simultaneously with each progress payment made to Construction Manager under Article XI hereof. The proportion of the Construction Manager’s Fee and General Conditions earned at the date of any Application for Payment (as such term is defined in Article XI hereof) shall be calculated as defined in Section 3.02 above for the Work completed in such Application for Payment. The Construction Manager’s Reimbursables (except as provided for in the Trade Contracts for retention) and General Conditions Costs shall be reimbursed as incurred by Construction Manager without retention. The Construction Manager’s Fee shall be subject to a hold-back in an amount equal to ten (10%) percent, until such time the Owner has paid fifty (50%) percent of the Fee, at which time the hold-back on the remainder of Fee payments by Owner to Construction Manager shall be zero (0%) percent. 3.08 Unless otherwise agreed to by Owner and Construction Manager, Owner shall make progress payments to Construction Manager pursuant to the provisions of Article XI hereof, subject to a hold-back on the Trade Contract Costs (hereinafter defined) (including payments to Trade Contractors for the performance of General Conditions Work Items pursuant to Trade Contracts) in an amount equal to ten (10%) percent of such Trade Contract Costs, until such time when fifty (50%) percent of such Trade Contract Costs has been paid, at which time the hold-back on the remainder of the payments for Trade Contract Costs shall be reduced to zero (0%) percent of Trade Contract Costs. 3.09 The Guaranteed Maximum Price shall include a Contingency in the amount of One Million Two Hundred Seventy-Eight Thousand Three Hundred Thirty-Six ($1,278,336.00) Dollars. The Contingency is available to cover costs that would increase the Construction Manager’s costs and result from (i) additional costs incurred as a result of the default by Trade Contractors or items identified by the Owner after submission of the Guaranteed Maximum Price and accordingly omitted by Construction Manager in the formulation of the Guaranteed Maximum Price, (ii) correction of defects not due to the negligence of Construction Manager, (iii) time extensions to the extent not provided for by this Agreement, (iv) casualty losses and related expenses, not compensated by insurance or otherwise, and sustained by Construction Manager in connection with the Work; and (v) clash detection coordination. The Contingency is not intended to cover design errors, Change Order Work, overtime requested by Owner unless such overtime is caused by Construction Manager’s inability to perform in accordance with the Progress Schedule as defined in Article VII below, concealed conditions and Hazardous Materials not brought onto Project site by Construction Manager. Reimbursement shall not be made for any losses or expenses for which Construction Manager would have been indemnified or compensated by insurance, but for the failure of Construction Manager to procure and maintain insurance in accordance with the requirements of this Agreement or the failure of Construction Manager to comply with the requirements of any insurance carriers providing coverage for the Project, as set forth in Exhibit “C” hereof. The use of the Contingency shall be reasonably approved in writing on a monthly basis by Owner in accordance with the foregoing. No sums may be charged to the Contingency except with prior written approval of Owner which approval will not be unreasonably withheld, to the extent that such funds have been paid or are to be paid by Construction Manager. No sums may be charged to Contingency for work for which Construction Manager is entitled to a Change Order hereunder. No sums may be charged to the Contingency for costs which arise out of Construction Manager’s intentional misconduct, gross negligence or a material breach of this Agreement. Construction Manager is not entitled to payment of sums which are otherwise properly chargeable to the Contingency to the extent (i) such sums are successfully and properly chargeable to a Trade Contractor or other responsible person or entity, (ii) Construction Manager failed to notify Owner or its insurance carrier, if applicable, of the event which results in the claim to the Contingency resulting in coverage disclaimer or (iii) such sums exceed the available Contingency set forth in the Guaranteed Maximum Price. 3.10 The General Conditions Costs, as more fully described in the Contract Documents, shall include, but not be limited to, the following: (a) actual direct wages and salaries for the following classifications of personnel and who provide services in connection with the Work and for such time as is actually devoted to the Work, Project Executive, Project Manager, Project Engineer(s), Assistant Project Manager(s), Estimator(s), Project Superintendent(s), Assistant Superintendent(s), On-site Safety Coordinator, Mechanical/Electrical Project Manager(s) and Superintendent(s), Project Accountant(s), Timekeepers, Teamsters, Master Mechanics, Elevator Operators, Operating Engineers, laborers, personnel engaged (e.g. at shops or on the road) in expediting the production or transportation of materials or equipment, clerical and data processing personnel, estimators, schedulers and accountants, the rates of which are set forth in attached Exhibit “G”; (b) actual payroll taxes and contributions and other assessments or taxes for unemployment compensation, pension benefits, Worker’s Compensation and Employee Liability insurance, social security and other standard employee benefits, insofar as the same are based upon the direct salaries paid to the field personnel or labor referred to in Subsection 3.10(a) hereof and are actually paid to or for the benefit of such persons, it being expressly understood, however, that no reimbursements will be made on account of fidelity insurance or automobile insurance; (c) actual costs and expenses incurred in connection with telegrams, telephones (and charges), fax, messenger service, blueprinting, photocopying, photographs, field office, trailers, correspondence and other similar xxxxx cash items directly related to the Work; and (d) Actual costs of all temporary structures and their maintenance, less the reasonable salvage value obtainable on such items which are used but not totally consumed in the performance of the Work; provided, however, that at Owner’s option and at its direction, Construction Manager either shall (i) deliver all such temporary structures to Owner, (ii) use reasonable efforts to sell the same for the account of Owner, or (iii) discard the same in the manner set forth in Section 6.05 hereof; (e) Rental charges and maintenance expenses for any temporary structure necessary in connection with the performance of the Work, including the installation, erection, removal, transportation and delivery costs thereof; (f) Rental charges of all machinery and equipment (exclusive of hand tools) used at the Project site and necessary in connection with the performance of the Work, together with costs incurred in the installation thereof, and the dismantling, removal, transportation and delivery of the same; (g) Actual costs incurred by Construction Manager in performing General Conditions Work Items not listed in the Contract Documents by Construction Manager’s own labor force or by Trade Contractors retained by Construction Manager to perform the same, provided such costs are not back-chargeable or deductible from any other Trade Contractor for any reason; (h) permit fees and license fees necessary for the performance of the Work, except those arising out of the Construction Manager’s negligence; and (i) legal and accounting fees reasonably incurred in performance of the Work, excluding any legal and accounting fees incurred by Construction Manager (i) as a result of failure of Construction Manager (as opposed to Trade Contractors) to perform in accordance with this Agreement, or arising out of the negligence of Construction Manager or (ii) provided Owner has paid Construction Manager, wrongful failure of Construction Manager to pay any Trade Contractor, supplier or others in connection with the Project and (iii) arising out of or related to the negotiation of this Agreement). 3.11 The Construction Manager’s General Requirements shall be calculated as set forth in the Contract Documents, and shall not exceed Eight Hundred Fifty-Six Thousand ($856,000.00) Dollars, subject however to Section 3.04 regarding line item costs and overruns.
Appears in 1 contract
Contract Sum and Guaranteed Maximum Price. 3.01 As consideration for the full and complete performance of the Work and all of Construction Manager’s obligations hereunder, Owner shall pay to Construction Manager a sum of money (“Contract Sum”) equal to the total of
(i) a fee (“Construction Manager’s Fee”), which includes all overhead (including home office personnel and expenses not otherwise reimbursable under Section 3.10 hereof) and profit;
(ii) General Conditions, as provided in Section 3.03;
(iii) General Requirements ( (General Conditions — non- management costs), as provided in Section 3.11;
(iv) Construction Manager’s Reimbursable Costs as defined in Article IV hereof; and
(v) Contingency, as provided in Section 3.09.
3.02 The Construction Manager’s Fee which includes all costs not otherwise identified in this Agreement and profit shall be one and one half (1.5%) percent (the “Fee”) of the GMP (defined in Section 3.04), not to exceed Six Five Hundred Ninety-Nine Thousand Six One Hundred ThirtySixty-Six Three ($699,636.00599,163.00) Dollars. Construction Manager has agreed to waive a fee for preconstruction services which are performed prior to the establishment of the GMP and not included in the GMP.
3.03 The Construction Manager’s General Conditions Costs are more fully defined in Section 3.10 below, and shall not exceed One Million SixtyNine Hundred Fifty-Six Thousand One Hundred Fifty-Eight ($1,066,000.00956,158.00) Dollars, subject however to Section 3.04 regarding line item costs and overruns.
3.04 The Guaranteed Maximum Price (“GMP”) shall be FortyThirty-Six Nine Million Six Nine Hundred Forty-Two Four Thousand Three One Hundred and Ninety-Eight Five ($46,642,398.0039,944,195.00) Dollars, as set forth more fully in Exhibit “E”. Unless adjusted by Change Order pursuant to Article XXII below, in no event shall the Contract Sum exceed the GMP. The GMP will be made up of line item costs, all of which will total the contract value. No guarantee exists as to the cost of any individual line item of Work, including the General Conditions and Reimbursable Costs. Savings on any line item, with the exception of insurance cost savings, may be transferred to cover possible overruns on any other line item, including Contingency. Contingency, however, shall not be used to offset overruns on other line items, except as permitted pursuant to Section 3.09.
3.05 If Construction Manager completes that Work for less than the GMP, excluding Construction Manager’s Accelerated Delivery Fee if applicable, then the Owner shall be entitled to receive an amount equal to eighty (80%) percent of such savings.
3.06 In the event that the GMP is adjusted by Change Order as defined in Article XXII below, Construction Manager shall be entitled to a Construction Manager’s fee of one and one half (1.5%) percent of the Trade Contractor Costs and its actual increased General Conditions Costs, as evidenced to Owner. In the event of a deductive Change Order, the GMP shall be reduced by an amount equal to the value of the work that is the subject of such Change Order.
3.07 Payments on account of the Construction Manager’s Fee and General Conditions, shall be paid monthly, simultaneously with each progress payment made to Construction Manager under Article XI hereof. The proportion of the Construction Manager’s Fee and General Conditions earned at the date of any Application for Payment (as such term is defined in Article XI hereof) shall be calculated as defined in Section 3.02 above for the Work completed in such Application for Payment. The Construction Manager’s Reimbursables (except as provided for in the Trade Contracts for retention) and General Conditions Costs shall be reimbursed as incurred by Construction Manager without retention. The Construction Manager’s Fee shall be subject to a hold-back in an amount equal to ten (10%) percent, until such time the Owner has paid fifty (50%) percent of the Fee, at which time the hold-back on the remainder of Fee payments by Owner to Construction Manager shall be zero (0%) percent.
3.08 Unless otherwise agreed to by Owner and Construction Manager, Owner shall make progress payments to Construction Manager pursuant to the provisions of Article XI hereof, subject to a hold-back on the Trade Contract Costs (hereinafter defined) (including payments to Trade Contractors for the performance of General Conditions Work Items pursuant to Trade Contracts) in an amount equal to ten (10%) percent of such Trade Contract Costs, until such time when fifty (50%) percent of such Trade Contract Costs has been paid, at which time the hold-back on the remainder of the payments for Trade Contract Costs shall be reduced to zero (0%) percent of Trade Contract Costs.
3.09 The Guaranteed Maximum Price shall include a Contingency in the amount of One Million Eighty-Two Thousand One Hundred SeventyTwenty-Eight Thousand Three Hundred Thirty-Six One ($1,278,336.001,082,121.00) Dollars. The Contingency is available to cover costs that would increase the Construction Manager’s costs and result from (i) additional costs incurred as a result of the default by Trade Contractors or items identified by the Owner after submission of the Guaranteed Maximum Price and accordingly omitted by Construction Manager in the formulation of the Guaranteed Maximum Price, (ii) correction of defects not due to the negligence of Construction Manager, (iii) time extensions to the extent not provided for by this Agreement, (iv) casualty losses and related expenses, not compensated by insurance or otherwise, and sustained by Construction Manager in connection with the Work; and (v) clash detection coordination. The Contingency is not intended to cover design errors, Change Order Work, overtime requested by Owner unless such overtime is caused by Construction Manager’s inability to perform in accordance with the Progress Schedule as defined in Article VII below, concealed conditions and Hazardous Materials not brought onto Project site by Construction Manager. Reimbursement shall not be made for any losses or expenses for which Construction Manager would have been indemnified or compensated by insurance, but for the failure of Construction Manager to procure and maintain insurance in accordance with the requirements of this Agreement or the failure of Construction Manager to comply with the requirements of any insurance carriers providing coverage for the Project, as set forth in Exhibit “C” hereof. The use of the Contingency shall be reasonably approved in writing on a monthly basis by Owner in accordance with the foregoing. No sums may be charged to the Contingency except with prior written approval of Owner which approval will not be unreasonably withheld, to the extent that such funds have been paid or are to be paid by Construction Manager. No sums may be charged to Contingency for work for which Construction Manager is entitled to a Change Order hereunder. No sums may be charged to the Contingency for costs which arise out of Construction Manager’s intentional misconduct, gross negligence or a material breach of this Agreement. Construction Manager is not entitled to payment of sums which are otherwise properly chargeable to the Contingency to the extent (i) such sums are successfully and properly chargeable to a Trade Contractor or other responsible person or entity, (ii) Construction Manager failed to notify Owner or its insurance carrier, if applicable, of the event which results in the claim to the Contingency resulting in coverage disclaimer or (iii) such sums exceed the available Contingency set forth in the Guaranteed Maximum Price.
3.10 The General Conditions Costs, as more fully described in the Contract Documents, shall include, but not be limited to, the following:
(a) actual direct wages and salaries for the following classifications of personnel and who provide services in connection with the Work and for such time as is actually devoted to the Work, Project Executive, Project Manager, Project Engineer(s), Assistant Project Manager(s), Estimator(s), Project Superintendent(s), Assistant Superintendent(s), On-site Safety Coordinator, Mechanical/Electrical Project Manager(s) and Superintendent(s), Project Accountant(s), Timekeepers, Teamsters, Master Mechanics, Elevator Operators, Operating Engineers, laborers, personnel engaged (e.g. at shops or on the road) in expediting the production or transportation of materials or equipment, clerical and data processing personnel, estimators, schedulers and accountants, the rates of which are set forth in attached Exhibit “G”;
(b) actual payroll taxes and contributions and other assessments or taxes for unemployment compensation, pension benefits, Worker’s Compensation and Employee Liability insurance, social security and other standard employee benefits, insofar as the same are based upon the direct salaries paid to the field personnel or labor referred to in Subsection 3.10(a) hereof and are actually paid to or for the benefit of such persons, it being expressly understood, however, that no reimbursements will be made on account of fidelity insurance or automobile insurance;
(c) actual costs and expenses incurred in connection with telegrams, telephones (and charges), fax, messenger service, blueprinting, photocopying, photographs, field office, trailers, correspondence and other similar xxxxx cash items directly related to the Work; and
(d) Actual costs of all temporary structures and their maintenance, less the reasonable salvage value obtainable on such items which are used but not totally consumed in the performance of the Work; provided, however, that at Owner’s option and at its direction, Construction Manager either shall (i) deliver all such temporary structures to Owner, (ii) use reasonable efforts to sell the same for the account of Owner, or (iii) discard the same in the manner set forth in Section 6.05 hereof;
(e) Rental charges and maintenance expenses for any temporary structure necessary in connection with the performance of the Work, including the installation, erection, removal, transportation and delivery costs thereof;
(f) Rental charges of all machinery and equipment (exclusive of hand tools) used at the Project site and necessary in connection with the performance of the Work, together with costs incurred in the installation thereof, and the dismantling, removal, transportation and delivery of the same;
(g) Actual costs incurred by Construction Manager in performing General Conditions Work Items not listed in the Contract Documents by Construction Manager’s own labor force or by Trade Contractors retained by Construction Manager to perform the same, provided such costs are not back-chargeable or deductible from any other Trade Contractor for any reason;
(h) permit Permit fees and license fees necessary for the performance of the Work, except those arising out of the Construction Manager’s negligence; and
(i) legal Legal and accounting fees reasonably incurred in performance of the Work, excluding any legal and accounting fees incurred by Construction Manager (i) as a result of failure of Construction Manager (as opposed to Trade Contractors) to perform in accordance with this Agreement, or arising out of the negligence of Construction Manager or (ii) provided Owner has paid Construction Manager, wrongful failure of Construction Manager to pay any Trade Contractor, supplier or others in connection with the Project and (iii) arising out of or related to the negotiation of this Agreement).
3.11 The Construction Manager’s General Requirements shall be calculated as set forth in the Contract Documents, and shall not exceed Six Hundred Sixty-Eight Thousand Five Hundred FiftySeventy-Six Thousand Nine ($856,000.00668,579.00) Dollars, subject however to Section 3.04 regarding line item costs and overruns.
Appears in 1 contract
Contract Sum and Guaranteed Maximum Price. 3.01 As consideration for the full and complete performance of the Work and all of Construction ManagerContractor’s obligations hereunder, Owner shall pay to Construction Manager Contractor a sum of money (“Contract Sum”) equal to the total of:
(i) a fee (“Construction ManagerContractor’s Fee”), which ) Contractor’s Fee includes all overhead (including home office personnel and expenses not otherwise reimbursable under Section 3.10 hereof) and profit;
(ii) General Conditions, as provided in Section 3.033.03 and;
(iii) General Requirements ( (General Conditions — non- management costs), as provided in Section 3.11;
(iv) Construction ManagerContractor’s Reimbursable Costs as defined in Article IV hereof; and
. provided, however, that except as expressly provided herein, the Contract Sum shall not exceed fifteen million dollars (v$15,000,000) Contingency, as provided in Section 3.09.(the “Guaranteed Maximum Price” or “GMP”)
3.02 The Construction ManagerContractor’s Fee which includes all costs not otherwise identified in this Agreement and profit shall be a fixed fee of five hundred forty thousand dollars ($540,000) (“Contractor’s Fixed Fee”), plus, subject to terms of the Agreement, an additional one and one half hundred twenty three thousand five hundred fifty five dollars (1.5%$123,555) percent for obtaining Substantial Completion by July 31, 2006 (the “Contractor’s Substantial Completion Fee”) of the GMP plus another one hundred twenty three thousand five hundred fifty five dollars (defined in Section 3.04)$123, 555) for achieving Substantial Completion for a Contract Sum not to exceed Six Hundred Ninety-Nine Thousand Six Hundred Thirty-Six ($699,636.00) Dollars. Construction Manager has agreed to waive a fee for preconstruction services which are performed prior to the establishment of the GMP and not included in the GMP.
3.03 The Construction ManagerContractor’s General Conditions Costs Costs, as approved in advance by Owner, which are more fully defined in Section 3.10 below, and shall not exceed One Million Sixty-Six Thousand 3.09 below are estimated at one hundred ninety five thousand dollars ($1,066,000.00) Dollars, subject however to Section 3.04 regarding line item costs and overruns195,000).
3.04 The Guaranteed Maximum Price (Contractor acknowledges that the Documents identified on Exhibit “GMP”) shall be Forty-Six Million Six Hundred Forty-Two Thousand Three Hundred Ninety-Eight ($46,642,398.00) DollarsA” annexed hereto are incomplete and are being developed by Architect. However, as set forth more fully Contractor represents that the documents in Exhibit “E”. A” contain sufficient information so as to provide Contractor with an understanding of the scope of the Work and the level of finishes so as to enable Contractor to prepare the Preliminary Budget which will be provided to Owner upon completion.
3.05 Unless adjusted by Change Order pursuant to Article XXII below, in no event shall the Contract Sum exceed the GMP. The GMP will be made up of line item costs, all of which will total the contract value. No guarantee exists as to the cost of any individual line item of Work, including the General Conditions and Reimbursable Costs. Savings on any line item, with the exception of insurance cost savings, may be transferred to cover possible overruns on any other line item, including Contingency. Contingency, however, shall not be used to offset overruns on other line items, except as permitted pursuant to Section 3.09.
3.05 If Construction Manager completes that Work for less than the GMP, excluding Construction Manager’s Accelerated Delivery Fee if applicable, then the Owner shall be entitled to receive an amount equal to eighty (80%) percent of such savingsGuaranteed Maximum Price.
3.06 In the event that the GMP is adjusted by Change Order as defined in Article XXII below, Construction Manager Contractor shall be entitled to a Construction Manager’s Contractors fee of one and one half (1.5%) percent the total of the Trade Contractor actual Reimbursable Costs and its actual increased General Conditions Costs, as evidenced to Owner. In the event of a deductive Change Order, the GMP shall be reduced by an amount equal to the value of the work that is the subject of which are included in such Change OrderOrder with no xxxx-up for fee.
3.07 Payments on account of the Construction ManagerContractor’s Fee and General Conditions, shall be paid monthly, simultaneously with each progress payment made to Construction Manager Contractor under Article XI hereof. The proportion of the Construction ManagerContractor’s Fee and General Conditions earned at the date of any Application for Payment (as such term is defined in Article XI Section 11.01(a) hereof) shall be calculated as defined in Section 3.02 above 11.01 for the Work completed in such Application for Payment. The Construction Manager’s Reimbursables (except as provided for in the Trade Contracts for retention) and General Conditions Costs shall be reimbursed as incurred by Construction Manager without retention. The Construction Manager’s Fee All payments to Contractor shall be subject to a hold-back in an amount equal to ten (10%) percent, until such time the Owner has paid fifty (50%) percent of the Fee, at which time the hold-back on the remainder of Fee payments by Owner to Construction Manager shall be zero (0%) percent.
3.08 Unless otherwise agreed to by Owner and Construction Manager, Owner shall make progress payments to Construction Manager pursuant to the provisions of Article XI hereof, subject to a hold-back on the Trade Contract Costs (hereinafter defined) (including payments to Trade Contractors for the performance of General Conditions Work Items pursuant to Trade Contracts) in an amount equal to ten (10%) percent of such Trade Contract Costs, until such time when fifty (50%) percent of such Trade Contract Costs has been paid, at which time the hold-back on the remainder of the payments for Trade Contract Costs shall be reduced to zero (0%) percent of Trade Contract Costs.
3.09 The Guaranteed Maximum Price shall include a Contingency in the amount of One Million Two Hundred Seventy-Eight Thousand Three Hundred Thirty-Six ($1,278,336.00) Dollars. The Contingency is available to cover costs that would increase the Construction Manager’s costs and result from (i) additional costs incurred as a result of the default by Trade Contractors or items identified by the Owner after submission of the Guaranteed Maximum Price and accordingly omitted by Construction Manager in the formulation of the Guaranteed Maximum Price, (ii) correction of defects not due to the negligence of Construction Manager, (iii) time extensions to the extent not provided for by this Agreement, (iv) casualty losses and related expenses, not compensated by insurance or otherwise, and sustained by Construction Manager in connection with the Work; and (v) clash detection coordination. The Contingency is not intended to cover design errors, Change Order Work, overtime requested by Owner unless such overtime is caused by Construction Manager’s inability to perform in accordance with the Progress Schedule as defined in Article VII below, concealed conditions and Hazardous Materials not brought onto Project site by Construction Manager. Reimbursement shall not be made for any losses or expenses for which Construction Manager would have been indemnified or compensated by insurance, but for the failure of Construction Manager to procure and maintain insurance in accordance with the requirements of this Agreement or the failure of Construction Manager to comply with the requirements of any insurance carriers providing coverage for the Project, as set forth in Exhibit “C” hereof. The use of the Contingency shall be reasonably approved in writing on a monthly basis by Owner in accordance with the foregoing. No sums may be charged to the Contingency except with prior written approval of Owner which approval will not be unreasonably withheld, to the extent that such funds have been paid or are to be paid by Construction Manager. No sums may be charged to Contingency for work for which Construction Manager is entitled to a Change Order hereunder. No sums may be charged to the Contingency for costs which arise out of Construction Manager’s intentional misconduct, gross negligence or a material breach of this Agreement. Construction Manager is not entitled to payment of sums which are otherwise properly chargeable to the Contingency to the extent (i) such sums are successfully and properly chargeable to a Trade Contractor or other responsible person or entity, (ii) Construction Manager failed to notify Owner or its insurance carrier, if applicable, of the event which results in the claim to the Contingency resulting in coverage disclaimer or (iii) such sums exceed the available Contingency set forth in the Guaranteed Maximum Price.
3.10 The General Conditions Costs, as more fully described in the Contract Documents, shall include, but not be limited to, the following:
(a) actual direct wages and salaries for the following classifications of personnel and who provide services in connection with the Work and for such time as is actually devoted to the Work, Project Executive, Project Manager, Project Engineer(s), Assistant Project Manager(s), Estimator(s), Project Superintendent(s), Assistant Superintendent(s), On-site Safety Coordinator, Mechanical/Electrical Project Manager(s) and Superintendent(s), Project Accountant(s), Timekeepers, Teamsters, Master Mechanics, Elevator Operators, Operating Engineers, laborers, personnel engaged (e.g. at shops or on the road) in expediting the production or transportation of materials or equipment, clerical and data processing personnel, estimators, schedulers and accountants, the rates of which are set forth in attached Exhibit “G”;
(b) actual payroll taxes and contributions and other assessments or taxes for unemployment compensation, pension benefits, Worker’s Compensation and Employee Liability insurance, social security and other standard employee benefits, insofar as the same are based upon the direct salaries paid to the field personnel or labor referred to in Subsection 3.10(a) hereof and are actually paid to or for the benefit of such persons, it being expressly understood, however, that no reimbursements will be made on account of fidelity insurance or automobile insurance;
(c) actual costs and expenses incurred in connection with telegrams, telephones (and charges), fax, messenger service, blueprinting, photocopying, photographs, field office, trailers, correspondence and other similar xxxxx cash items directly related to the Work; and
(d) Actual costs of all temporary structures and their maintenance, less the reasonable salvage value obtainable on such items which are used but not totally consumed in the performance of the Work; provided, however, that at Owner’s option and at its direction, Construction Manager either shall (i) deliver all such temporary structures to Owner, (ii) use reasonable efforts to sell the same for the account of Owner, or (iii) discard the same in the manner set forth in Section 6.05 hereof;
(e) Rental charges and maintenance expenses for any temporary structure necessary in connection with the performance of the Work, including the installation, erection, removal, transportation and delivery costs thereof;
(f) Rental charges of all machinery and equipment (exclusive of hand tools) used at the Project site and necessary in connection with the performance of the Work, together with costs incurred in the installation thereof, and the dismantling, removal, transportation and delivery of the same;
(g) Actual costs incurred by Construction Manager in performing General Conditions Work Items not listed in the Contract Documents by Construction Manager’s own labor force or by Trade Contractors retained by Construction Manager to perform the same, provided such costs are not back-chargeable or deductible from any other Trade Contractor for any reason;
(h) permit fees and license fees necessary for the performance of the Work, except those arising out of the Construction Manager’s negligence; and
(i) legal and accounting fees reasonably incurred in performance of the Work, excluding any legal and accounting fees incurred by Construction Manager (i) as a result of failure of Construction Manager (as opposed to Trade Contractors) to perform in accordance with this Agreement, or arising out of the negligence of Construction Manager or (ii) provided Owner has paid Construction Manager, wrongful failure of Construction Manager to pay any Trade Contractor, supplier or others in connection with the Project and (iii) arising out of or related to the negotiation of this Agreement).
3.11 The Construction Manager’s General Requirements shall be calculated as set forth in the Contract Documents, and shall not exceed Eight Hundred Fifty-Six Thousand ($856,000.00) Dollars, subject however to Section 3.04 regarding line item costs and overruns.Article 3.08
Appears in 1 contract
Contract Sum and Guaranteed Maximum Price. 3.01 As consideration for the full and complete performance of the Work and all of Construction ManagerContractor’s obligations hereunder, Owner shall pay to Construction Manager Contractor a sum of money (“Contract Sum”) equal to the total of:
(i) a fee (“Construction ManagerContractor’s Fee”), which includes all overhead (including home office personnel and expenses not otherwise reimbursable under Section 3.10 3.09 hereof) and profit, other than the Contractor’s Incentive Fees (as defined in Section 3.02);
(ii) General Conditions, as provided in Section 3.03;
(iii) General Requirements ( (General Conditions — non- management costs), as provided in Section 3.11;
(iv) Construction ManagerContractor’s Reimbursable Costs as defined in Article IV hereof; and;
(viv) Contingency, as provided in Section 3.09.3.13;
(v) Three Hundred Ninety Thousand Dollars ($390,000.00) for certain Pre-Construction Services, including Twenty-Five Thousand Dollars ($25,000.00) for Reimbursable Costs in connection with Pre-Construction Services, as agreed to by Owner and Contractor pursuant to a separate agreement dated March 3, 2009 (the “Separate Agreement”) and paid in accordance with the terms of such Separate Agreement; and
(vi) An amount not to exceed Nine Hundred Thirty Thousand Dollars ($930,000.00) for certain additional Pre-Construction Services, as agreed to by Owner and Contractor pursuant to an addendum to the Separate Agreement dated May 29, 2009 (the “Addendum”), and paid in accordance with the terms of the Separate Agreement. Except as expressly provided herein, the Contract Sum shall not exceed Fifty Million Five Hundred Thirty Nine Thousand Seven Hundred Eighty Five Dollars ($50,539,785.00), which is the Guaranteed Maximum Price (“GMP”), as set forth more fully in Exhibit D.
3.02 The Construction ManagerContractor’s Fee which includes all costs not otherwise identified in this Agreement and profit shall be one and one half be:
(1.5%i) percent A fixed fee of One Million Four Hundred Seventy Two Thousand Thirty Three Dollars (the $1,472,033.00) (“Contractor’s Fixed Fee”); plus
(ii) Subject to terms of the GMP Agreement, including Section 3.11 and Section 3.12 hereof, additional incentive fees (“Contractor’s Incentive Fees”), which shall be paid in addition to the GMP, of:
(a) Two Hundred Fifty Thousand Dollars ($250,000.00) if Contractor obtains Substantial Completion (as defined in Section 3.04), not to exceed Six Hundred Ninety-Nine Thousand Six Hundred Thirty-Six 6.01) for Phase II of the Project fifteen ($699,636.0015) Dollars. Construction Manager has agreed to waive a fee for preconstruction services which are performed or more days prior to the establishment Phase II Substantial Completion Date (as defined in Section 6.01), or One Hundred Twenty Five Thousand Dollars ($125,000.00) if Contractor obtains Substantial Completion for Phase II of the GMP and not included Project one (1) or more days prior to the Phase II Substantial Completion Date.
(b) Two Hundred Fifty Thousand Dollars ($250,000.00) if Contractor obtains Substantial Completion (as defined in Section 6.01) for Phase III of the GMPProject fifteen (15) or more days prior to the Phase III Substantial Completion Date (as defined in Section 6.01), or One Hundred Twenty Five Thousand Dollars ($125,000.00) if Contractor obtains Substantial Completion for Phase III of the Project one (1) or more days prior to the Phase III Substantial Completion Date.
3.03 The Construction ManagerContractor’s General Conditions Costs Costs, as approved in advance by Owner, which are more fully defined in Section 3.10 3.09 below, and shall are not to exceed One Two Million Sixty-Six Five Hundred Thirty Nine Thousand Five Hundred Dollars ($1,066,000.00) Dollars, subject however to Section 3.04 regarding line item costs and overruns2,539,500.00).
3.04 The Guaranteed Maximum Price Contractor acknowledges that the Documents identified on Exhibit A annexed hereto are approximately seventy-five percent (“GMP”75%) shall be Forty-Six Million Six Hundred Forty-Two Thousand Three Hundred Ninety-Eight ($46,642,398.00) Dollarscomplete and are being developed by Architect. However, as set forth more fully Contractor represents that the Documents in Exhibit “E”. A contain sufficient information so as to provide Contractor with an understanding of the scope of the Work and the level of finishes so as to enable Contractor to prepare the Preliminary Budget which will be provided to Owner upon completion.
3.05 Unless adjusted by Change Order pursuant to Article XXII belowbelow and subject to Section 3.13, in no event shall the Contract Sum exceed the GMP. The GMP will be made up of line item costs, all of which will total the contract value. No guarantee exists as to the cost of any individual line item of Work, including the General Conditions and Reimbursable Costs. Savings on any line item, with the exception of insurance cost savings, may be transferred to cover possible overruns on any other line item, including Contingency. Contingency, however, shall not be used to offset overruns on other line items, except as permitted pursuant to Section 3.09.
3.05 If Construction Manager completes that Work for less than the GMP, excluding Construction Manager’s Accelerated Delivery Fee if applicable, then the Owner shall be entitled to receive an amount equal to eighty (80%) percent of such savings.
3.06 In the event that the GMP is adjusted increased by Change Order as defined in Article XXII below, Construction Manager Contractor shall be entitled to a Construction Manager’s fee of one and one half three percent (1.53%) percent of the Trade Contractor Costs and its xxxx-up for fee, plus an adjustment based on actual increased General Conditions Costs, as evidenced to OwnerConditions. In the event of a deductive that the GMP is decreased by Change Order, the GMP Owner shall be reduced by entitled to a three (3%) percent credit from Contractor for fee, plus an amount equal to adjustment based on the value of the work that is the subject of such Change Orderdecrease in actual General Conditions.
3.07 Payments on account of the Construction ManagerContractor’s Fixed Fee and General Conditions, shall be paid monthly, simultaneously with each progress payment made to Construction Manager Contractor under Article XI hereof. The proportion of the Construction ManagerContractor’s Fixed Fee and General Conditions earned at the date of any Application for Payment (as such term is defined in Article XI Section 11.01(a) hereof) shall be calculated as defined in Section 3.02 above 11.01 for the Work completed in such Application for Payment. The Construction Manager’s Reimbursables (except as provided for in the Trade Contracts for retention) and General Conditions Costs shall be reimbursed as incurred by Construction Manager without retention. The Construction Manager’s Fee All payments to Contractor shall be subject to a hold-back in an amount equal to ten (10%) percent, until such time the Owner has paid fifty (50%) percent of the Fee, at which time the hold-back on the remainder of Fee payments by Owner to Construction Manager shall be zero (0%) percent.
3.08 Unless otherwise agreed to by Owner and Construction Manager, Owner shall make progress payments to Construction Manager pursuant to the provisions of Article XI hereof, subject to a hold-back on the Trade Contract Costs (hereinafter defined) (including payments to Trade Contractors for the performance of General Conditions Work Items pursuant to Trade Contracts) in an amount equal to ten (10%) percent of such Trade Contract Costs, until such time when fifty (50%) percent of such Trade Contract Costs has been paid, at which time the hold-back on the remainder of the payments for Trade Contract Costs shall be reduced to zero (0%) percent of Trade Contract Costs.
3.09 The Guaranteed Maximum Price shall include a Contingency in the amount of One Million Two Hundred Seventy-Eight Thousand Three Hundred Thirty-Six ($1,278,336.00) Dollars. The Contingency is available to cover costs that would increase the Construction Manager’s costs and result from (i) additional costs incurred as a result of the default by Trade Contractors or items identified by the Owner after submission of the Guaranteed Maximum Price and accordingly omitted by Construction Manager in the formulation of the Guaranteed Maximum Price, (ii) correction of defects not due to the negligence of Construction Manager, (iii) time extensions to the extent not provided for by this Agreement, (iv) casualty losses and related expenses, not compensated by insurance or otherwise, and sustained by Construction Manager in connection with the Work; and (v) clash detection coordination. The Contingency is not intended to cover design errors, Change Order Work, overtime requested by Owner unless such overtime is caused by Construction Manager’s inability to perform in accordance with the Progress Schedule as defined in Article VII below, concealed conditions and Hazardous Materials not brought onto Project site by Construction Manager. Reimbursement shall not be made for any losses or expenses for which Construction Manager would have been indemnified or compensated by insurance, but for the failure of Construction Manager to procure and maintain insurance in accordance with the requirements of this Agreement or the failure of Construction Manager to comply with the requirements of any insurance carriers providing coverage for the Project, as set forth in Exhibit “C” hereof. The use of the Contingency shall be reasonably approved in writing on a monthly basis by Owner in accordance with the foregoing. No sums may be charged to the Contingency except with prior written approval of Owner which approval will not be unreasonably withheld, to the extent that such funds have been paid or are to be paid by Construction Manager. No sums may be charged to Contingency for work for which Construction Manager is entitled to a Change Order hereunder. No sums may be charged to the Contingency for costs which arise out of Construction Manager’s intentional misconduct, gross negligence or a material breach of this Agreement. Construction Manager is not entitled to payment of sums which are otherwise properly chargeable to the Contingency to the extent (i) such sums are successfully and properly chargeable to a Trade Contractor or other responsible person or entity, (ii) Construction Manager failed to notify Owner or its insurance carrier, if applicable, of the event which results in the claim to the Contingency resulting in coverage disclaimer or (iii) such sums exceed the available Contingency set forth in the Guaranteed Maximum Price.
3.10 The General Conditions Costs, as more fully described in the Contract Documents, shall include, but not be limited to, the following:
(a) actual direct wages and salaries for the following classifications of personnel and who provide services in connection with the Work and for such time as is actually devoted to the Work, Project Executive, Project Manager, Project Engineer(s), Assistant Project Manager(s), Estimator(s), Project Superintendent(s), Assistant Superintendent(s), On-site Safety Coordinator, Mechanical/Electrical Project Manager(s) and Superintendent(s), Project Accountant(s), Timekeepers, Teamsters, Master Mechanics, Elevator Operators, Operating Engineers, laborers, personnel engaged (e.g. at shops or on the road) in expediting the production or transportation of materials or equipment, clerical and data processing personnel, estimators, schedulers and accountants, the rates of which are set forth in attached Exhibit “G”;
(b) actual payroll taxes and contributions and other assessments or taxes for unemployment compensation, pension benefits, Worker’s Compensation and Employee Liability insurance, social security and other standard employee benefits, insofar as the same are based upon the direct salaries paid to the field personnel or labor referred to in Subsection 3.10(a) hereof and are actually paid to or for the benefit of such persons, it being expressly understood, however, that no reimbursements will be made on account of fidelity insurance or automobile insurance;
(c) actual costs and expenses incurred in connection with telegrams, telephones (and charges), fax, messenger service, blueprinting, photocopying, photographs, field office, trailers, correspondence and other similar xxxxx cash items directly related to the Work; and
(d) Actual costs of all temporary structures and their maintenance, less the reasonable salvage value obtainable on such items which are used but not totally consumed in the performance of the Work; provided, however, that at Owner’s option and at its direction, Construction Manager either shall (i) deliver all such temporary structures to Owner, (ii) use reasonable efforts to sell the same for the account of Owner, or (iii) discard the same in the manner set forth in Section 6.05 hereof;
(e) Rental charges and maintenance expenses for any temporary structure necessary in connection with the performance of the Work, including the installation, erection, removal, transportation and delivery costs thereof;
(f) Rental charges of all machinery and equipment (exclusive of hand tools) used at the Project site and necessary in connection with the performance of the Work, together with costs incurred in the installation thereof, and the dismantling, removal, transportation and delivery of the same;
(g) Actual costs incurred by Construction Manager in performing General Conditions Work Items not listed in the Contract Documents by Construction Manager’s own labor force or by Trade Contractors retained by Construction Manager to perform the same, provided such costs are not back-chargeable or deductible from any other Trade Contractor for any reason;
(h) permit fees and license fees necessary for the performance of the Work, except those arising out of the Construction Manager’s negligence; and
(i) legal and accounting fees reasonably incurred in performance of the Work, excluding any legal and accounting fees incurred by Construction Manager (i) as a result of failure of Construction Manager (as opposed to Trade Contractors) to perform in accordance with this Agreement, or arising out of the negligence of Construction Manager or (ii) provided Owner has paid Construction Manager, wrongful failure of Construction Manager to pay any Trade Contractor, supplier or others in connection with the Project and (iii) arising out of or related to the negotiation of this Agreement).
3.11 The Construction Manager’s General Requirements shall be calculated as set forth in the Contract Documents, and shall not exceed Eight Hundred Fifty-Six Thousand ($856,000.00) Dollars, subject however to Section 3.04 regarding line item costs and overruns.Article 3.08
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