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HomeMy WebLinkAbout19- General Contractor-Construction Manager Contract - Martel Construction, Inc. - Bogert Pavilion Project DOZ ♦ f CO. CONTRACT BETWEEN OWNER AND GENERAL CONTRACTOR/ CONSTRUCTION MANAGER FOR Bogert Pavilion Project This CONTRACT is made as of: iv Z/ , 2019 BETWEEN: Martel Construction, Inc. 1203 South Church Avenue Bozeman, MT 59715 Hereinafter identified as the"CONTRACTOR" and: City of Bozeman P.O. Box 1230 20 East Olive Street Bozeman, Montana 59771 hereinafter identified as the"OWNER". WITNESSETH that the Contractor and the Owner, for the consideration hereinafter named, agree as follows: ARTICLE 1 — SCOPE OF WORK The Contractor shall perform all Work as shown in the Contract Documents. ARTICLE 2— CONTRACT SUM The Owner shall pay the Contractor for performance of the Work, Subject to additions and/or deductions by Change Order or damages as provided in the Contract Documents, the contract Sum of: Ten Thousand Three Hundred Fifty Two Dollars($10,352.00) ARTICLE 3— DESIGNATED REPRESENTATIVES Owner's Designated Representative: Contractor's Designated Representative: Jon Henderson, Strategic Services Director Jason Martel, Executive Vice President P.O. Box 1230 Martel Construction, Inc. 20 E. Olive Street 1203 South Church Avenue Bozeman, MT 59771 Bozeman, MT 59715 406-582-2250 406-586-8585 jhenderson(a-),bozeman.net 0martelCcDmartelconstruction.com Engineer's Designated Representative: Jay Fischer, PE Morrison-Maierle 2880 Technology Blvd. W. Bozeman, MT 59771 406-587-0721 ARTICLE 4- CONTRACT DOCUMENTS The Contract Documents, together with this Contract, form the entire Contract and Agreement between the Contractor and Owner. The Contract Documents, which are totally and completely a part of this Contract as if attached hereto or repeated herein, are enumerated in the General Conditions of the Contract for Construction inclusive of Wage Rates, Reports, and all other items bound with the Specifications and/or Project Manual(s). ARTICLE 5- PREVAILING WAGE SCHEDULE The Contractor and all subcontractors at any tier or level shall, as a minimum, pay the standard prevailing rate of wages schedule (including per diem, fringe benefits for health, welfare, and pension contributions and travel allowance) in effect and as applicable to the district in which the Work is being performed. ARTICLE 6- VENUE In the event of any mediation, arbitration, or litigation concerning any matter or dispute arising out of or related to the Contract, venue shall be the Eighteenth Judicial District in and Gallatin County, Montana. The Contract shall be interpreted and subject to the laws of the State of Montana. EXECUTION OF THIS CONTRACT This Contract is entered into as of the day and year first written above: CONTRACTOR: OWNER: MARTEL CONSTRUCTION, INC CITY OF BOZE AN r---� By: By: ( ignature) (signature) Jason Martel Andrea Surratt Executive Vice President City Manager PRE-CONSTRUCTION SERVICES CONDITIONS Bogert Pavilion Project 1. ARTICLE 1 —DEFINITIONS 1.1. BASIC DEFINITIONS—The terms below are expressly defined as follows: 1.1.1. Affiliate. Affiliate shall mean any subsidiary of General Contractor/Construction Manager(GC/CM), and any other entity in which GC/CM has a financial interest or which has a financial interest in GC/CM(including without limitation parent companies, related businesses under the same holding company, or any other business controlled by, under common control with, or which controls GC/CM). 1.1.2. Allowances. Allowances shall mean the allowance amounts shown in the Guaranteed Maximum Price(GMP) Supporting Documents, together with such further allowances as may be developed by the parties as the Project progresses. 1.1.3. Amendment. Amendment shall mean a written modification of this Contract (including without limitation any agreed change to the GMP), identified as an Amendment, and executed by GC/CM and the Owner. 1.1.4. Change Order. Change Order shall mean a written modification of this Contract as identified in the General Conditions of the Contract for Construction (including without limitation any agreed change to GMP), identified as a Change Order and executed by the GC/CM and the Owner. Change Orders shall be issued only for Owner Scope Changes and unforeseen conditions. 1.1.5. Construction Manager(CM). CM shall have the meaning given herein below as GC/CM and CM/GC. 1.1.6. Construction Documents. Construction Documents shall be those prepared by the Engineer for the Project as described in the contract between Owner and Engineer. 1.1.7. Construction Phase.The Construction Phase shall mean the period commencing on the Owner's execution of a GMP Amendment or Early Work Amendment,together with the earlier of(i) issuance by Owner of a Notice to Proceed with any on-site construction or(ii) execution of a subcontract or issuance of a purchase order for materials or equipment required for the Work. 1.1.8. Construction Phase Services. Construction Phase Services shall mean all of the Work other than the Preconstruction Phase Services. 1.1.9. Contract Documents. Contract Documents shall have the meaning given in the General Conditions of the Contract for Construction. 1.1.10. Design Development Documents. The Design Development Documents shall be as described in the scope of services of the Owner's Agreement with the Engineer for this Project. 1.1.11. Early Work. Early Work shall mean Construction Phase Services authorized by Amendment that the parties agree should be performed in advance of establishment of the GMP. Permissible Early Work shall be limited to: early procurement of materials and supplies; early release of bid or Pre-Construction Services Conditions—Bogert Pavilion Project Page 1 of 21 proposal packages for site development and related activities; and any other advance work related to critical components of the Project for which performance prior to establishment of the GMP will materially affect the critical path schedule of the Project. 1.1.12. Early Work Amendment. Early Work Amendment shall mean an Amendment to this Contract executed by and between the parties to authorize Early Work. 1.1.13. Guaranteed Maximum Cost for Reimbursable expenses for General Conditions Work (GMCR). Guaranteed Maximum Cost for General Conditions Work or GC Work shall mean that guaranteed maximum sum identified herein below. 1.1.14. General Conditions Work. General Conditions Work ("GC Work") shall mean (i) that portion of the Work required to support construction operations that is not included within overhead or general expense but is called out as GC Work, and (ii) any other specific categories of Work approved in writing by the Owner as forming a part of the GC Work. GC Work is defined and submitted during the GC/CM solicitation phase and is described as Guaranteed Maximum Cost for Reimbursable(GMCR)expenses for General Conditions. 1.1.15. General Contractor/Construction Manager (GC/CM). GC/CM shall mean the entity contracted for by the Owner to provide Pre-Construction and Construction Services as identified herein below and in the General Conditions of the Contract for Construction. Construction Manager/General Contractor (CM/GC) shall have the same meaning as GC/CM. GC/CM and CM/GC includes the "Contractor" as identified in the General Conditions of the Contract for Construction. 1.1.16. Guaranteed Maximum Price (GMP). GMP shall mean the Guaranteed Maximum Price of this Contract, as stated in dollars within the GMP Amendment,as determined herein below and as it may be adjusted from time to time pursuant to the provisions of this Contract. 1.1.17. GMP Amendment. GMP Amendment shall mean an Amendment to this Contract, issued and executed by and between the parties, to establish the GMP and identify the GMP Supporting Documents and Construction Documents for Construction Phase Services. Where "bid" and all modifications are referenced in the General Conditions of the Contract for Construction,the word is interchangeable with the GMP. 1.1.18. GMP Supporting Documents. GMP Supporting Documents shall mean the documents referenced in the GMP Amendment as the basis for establishing the GMP. The GMP Supporting Documents shall expressly identify the Plans and Specifications, assumptions, qualifications, exclusions, conditions, allowances, unit prices, and alternates that form the basis for the GMP. 1.1.19. Preconstruction Phase. The Preconstruction Phase shall mean the period commencing on the date of this Contract and ending upon commencement of the Construction Phase; provided that if the Owner and GC/CM agree, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases shall proceed concurrently, subject to the terms and conditions of the Contract Documents. 1.1.20. Preconstruction Phase Services. Preconstruction Phase Services shall mean all services described herein below, including such similar services as are described in the Request for Proposals (RFP) and the GC/CM's RFP Response to the extent they are accepted by Owner, but excluding any Early Work. Early Work shall be considered part of Construction Phase Services. 1.1.21. Schematic Design Documents. Schematic Design Documents shall be as described in the scope of services of the Owner's Agreement with the Engineer for this Project. 1.1.22. Scope Change. Scope Change shall mean only (i) changed site conditions not reasonably identifiable or inferable from information available to GC/CM at the time of execution of the GMP Pre-Construction Services Conditions—Bogert Pavilion Project Page 2 of 21 Amendment, (ii) significant Work modifications (including additions, substitutions, and deletions) not reasonably identifiable or inferable from the Documents at every phase of design, and (iii) application of Allowances and selection of alternates, all as approved by the Owner under this Contract beyond that identified or inferable from the GMP Supporting Documents (but in the case of Allowance items, the GMP will increase only if the cost to Owner of the Allowance items exceeds the total amount of the Allowances). Unless otherwise indicated, other capitalized terms shall have the meaning ascribed to them in the General Conditions of the Contract for Construction. 2. ARTICLE 2—CONTRACT DOCUMENTS 2.1. Integration with General Conditions of the Contract for Construction. The requirements of these Pre- Construction Services Conditions are in addition to, and not in lieu of, the requirements of the General Conditions of the Contract for Construction. 2.2. Contract Documents. Owner and the GC/CM agree to the terms of the Contract that are set forth in the Contract Documents as identified in the General Conditions of the Contract for Construction. 2.3. Articles 3.1, 3.2, 11, 13, 14, and 15 of the "General Conditions of the Contract for Construction" also apply in their entirety to the Pre-Construction Services phase. 3. ARTICLE 3—SERMICES AND WORK OF THIS CONTRACT 3.1 Preconstruction Phase Services. The GC/CM agrees to provide all of the Preconstruction Phase Services described below on an ongoing basis in support of, and in conformance with, the time frames described in the Request for Proposals as updated by the Project Schedule throughout the course of design and as coordinated with the Owner and Engineer. The Preconstruction Phase shall end on or by February 29, 2020. If Preconstruction Phase continues beyond February 29,2020 through no fault of the GC/CM, additional compensation for extended Preconstruction Services may be negotiated with the Owner. However, commencement of the Construction Phase shall not excuse GC/CM from completion of the Preconstruction Phase Services, if such services have not been fully performed at commencement of the Construction Phase. 3.2 The GC/CM shall provide the following services relating to design and construction tasks: 3.2.1 The GC/CM shall consult with, advise, assist, and provide recommendations to the Owner and the Engineer on all aspects of the planning and design of the Work. 3.2.2 The GC/CM shall jointly schedule and attend regular meetings with the Engineer and Owner. The GC/CM shall consult with and advise the Owner and Engineer regarding site use and improvements, and the selection of materials, building systems and equipment. 3.2.3 The GC/CM shall provide recommendations on construction feasibility; actions designed to minimize adverse effects of labor or material shortages; time requirements for procurement, installation and construction completion; and/or factors related to construction cost including estimates of alternative designs or materials, preliminary budgets and possible economic factors. 3.2.4 The GC/CM shall provide continuous in-progress review of design documents, including the documents generally described in the industry as Schematic Design Documents, Design Development Documents, and Construction Documents and provide input and advice on completeness, clarity, construction feasibility, alternative materials, availability of trades and subcontractors, and availability of labor and materials. The GC/CM shall review Owner design review comments and provide input on resolution of design comments. Owner acknowledges that the GC/CM is providing services in its capacity as a Contractor and not as a licensed design Pre-Construction Services Conditions—Bogert Pavilion Project Page 3 of 21 professional. 3.3 The GC/CM shall provide the following services related to the Project schedule: 3.3.1 The GC/CM shall prepare and periodically update a preliminary Project schedule for the Owner's review and approval. 3.3.2 The GC/CM shall coordinate and integrate the preliminary Project schedule with the services and activities of the Owner, Engineer, and GC/CM. As design proceeds, GC/CM shall update the preliminary Project schedule to indicate proposed activity sequences and durations, milestone dates for receipt and approval of pertinent information, preparation and advertising of all bid packages, submittal of a GMP proposal, preparation and processing of shop drawings and samples, project phasing, delivery of materials or equipment requiring long-lead time procurement, and Owner's occupancy requirements showing portions of the Project having occupancy priority, provided that the date(s) of Substantial Completion shall not be modified without Owner's prior written approval. If preliminary Project schedule updates indicate that previously approved schedules may not be met, the GC/CM shall make appropriate recommendations to the Owner. 3.3.3 The GC/CM shall make recommendations to Engineer and Owner regarding the phased issuance of Plans and Specifications to facilitate phased construction of the Work, if such phased construction is appropriate for the Project, taking into consideration such factors as economics, time of performance, availability of labor and materials, and provisions for temporary facilities. 3.4 Provide the following services relating to cost estimating: 3.4.1 When Schematic Design Documents have been prepared by the Engineer and approved by the Owner,the GC/CM shall prepare for the review of the Engineer and approval of the Owner, a detailed estimate with supporting data. 3.4.2 When 100%Design Development Documents, have been prepared by the Engineer and submitted for review by the Owner and the GC/CM, and approved by the Owner, the GC/CM shall prepare for the review of the Engineer and approval of the Owner, a detailed estimate with supporting data. During the preparation of the Design Development Documents, the GC/CM shall update and refine this estimate at appropriate intervals agreed to by the Owner and GC/CM. 3.4.3 When 50%Construction Documents have been prepared by the Engineer and submitted for review by the Owner and the GC/CM, and approved by the Owner, the GC/CM shall prepare a detailed estimate with supporting data for review by the Engineer and approval by the Owner. During the preparation of the Construction Documents, the GC/CM shall update and refine this estimate at appropriate intervals agreed to by the Owner and GC/CM. 3.4.4 If any estimate submitted to the Owner exceeds previously approved estimates or the Owner's budget, the GC/CM shall make appropriate recommendations to the Owner. 3.4.5 GC/CM shall notify the Owner and the design team immediately if any construction cost estimate appears to be exceeding the construction budget. 3.5 Perform the following services relating to Subcontractors and suppliers: 3.5.1 The GC/CM shall seek to develop Subcontractor and supplier interest in the Project, and shall furnish to the Owner a list of possible Subcontractors and suppliers, including suppliers who may furnish materials or equipment fabricated to a special design, from whom competitive bids, quotes, or proposals(collectively, "Offers")will be requested for each principal portion of the Work. Submission of such list is for information and discussion purposes only and not for prequalification. Pre-Construction Services Conditions—Bogert Pavilion Project Page 4 of 21 The receipt of such list shall not require the Owner to investigate the qualifications of proposed Subcontractors and suppliers, nor shall it waive the right of the Owner later to object to or reject any proposed Subcontractor, supplier, or method of procurement. 3.5.2 The GC/CM shall provide input to the Owner and the design team regarding current construction market bidding climate, status of key subcontract markets, and other local/national economic conditions. GC/CM shall determine the division of work to facilitate bidding and award of trade and subcontracts, considering such factors as bidding climate, improving or accelerating construction completion, minimizing trade jurisdictional disputes, and related issues. 3.5.3 The GC/CM shall recommend to the Owner and Engineer a schedule for procurement of long- lead time items which will constitute part of the Work as required to meet the Project schedule, which shall be procured by the GC/CM upon execution of either a GMP Amendment or Early Work Amendment covering such procurement, and approval of such schedule by the Owner. The GC/CM shall expedite the delivery of long-lead time items. The GC/CM shall investigate, plan, and utilize a "just-in-time" delivery methodology, if feasible. 3.6 The GC/CM shall work with the Owner in identifying critical elements of the Work that may require special procurement processes, such as prequalification of Offerors, subcontractors, or alternative contracting methods. 3.7 Construction Phase Services. 3.7.1 Upon execution of an Early Work Amendment or GMP Amendment/Contract, the GC/CM shall provide Construction Phase Services as provided in the Contract Documents, including without limitation providing and paying for all materials, tools, equipment, labor and services, and performing all other acts and supplying all other things necessary to perform and complete the Work, as required by the Contract Documents, and to furnish to Owner a complete, fully functional Project in accordance with the Contract Documents, capable of being legally occupied and fully used for its intended purposes upon completion of the Contract (or, as to an Early Work Amendment, to furnish such Work as is described in the Early Work Amendment). Construction Phase Services shall include CM Services performed during the Construction Phase. 3.7.2 Notwithstanding any other references to Construction Phase Services in this Contract, this Contract shall include Preconstruction Phase Services only unless (i) the parties execute a GMP Amendment or(ii)the parties execute an Early Work Amendment. 3.7.3 The parties may execute one or more Early Work Amendments identifying specific Construction Phase Services that must be performed in advance of establishment of the GMP,without exceeding a not-to-exceed budget, a not-to-exceed guaranteed maximum price, or a fixed price("Early Work Price")to be stated in such Amendment, with such Amendment. If the Early Work Price is a not-to- exceed budget, then GC/CM shall be obligated to perform the Early Work only to the extent that the Cost of Work thereof, together with the GC/CM Fee, does not exceed the Early Work Price; however if GC/CM performs Early Work with a cost in excess of the Early Work Price the GC/CM shall pay such excess cost without reimbursement unless cost overruns are caused by conditions that constitute a change within the Contract or to incorporate Work not included in the GMP Amendment. If one or more Early Work Amendments are executed, the GC/CM shall diligently continue to work toward development of a GMP Amendment acceptable to Owner, which shall incorporate the Early Work Amendments. If Owner thereafter terminates the Contract prior to execution of a GMP Amendment, the provisions of the General Conditions of the Contract for Construction shall apply. 3.7.4 Prior to commencement of any Construction Phase effort, and in any event not later than mutual execution of the GMP Amendment, GC/CM shall provide to Owner a full performance bond and a payment security bond as required by the General Conditions in the amount of the GMP. If an Early Work Amendment is executed, GC/CM shall provide such bond in the amount of Pre-Construction Services Conditions—Bogert Pavilion Project Page 5 of 21 the Early Work Price under the Early Work Amendment. GC/CM shall provide to Owner additional or replacement bonds at the time of execution of any subsequent Early Work Amendment or GMP Amendment, in each case prior to execution of the Amendment and the supplying of any labor or materials for the prosecution of the Work covered by the Amendment, and in each case in a sufficient amount so that the total bonded sum equals or exceeds the total Early Work Price or the GMP, as the case may be. In the event of a Scope Change that increases the GMP, GC/CM shall provide to Owner an additional or supplemental bond in the amount of such increase prior to performance of the additional Work. 3.8 Construction Management (CM) Services. Throughout the Preconstruction Phase and Construction Phase of the Project, the GC/CM shall provide CM Services, generally consisting of coordinating and managing the building process as an independent contractor, in cooperation with the Owner, Engineer and other designated Project consultants (the "Construction Principals"), all in accordance with the General Conditions of the Contract for Construction and the Supplemental Conditions for Construction. CM Services shall include, but are not limited to: 3.8.1 Providing all Preconstruction Phase Services described above; 3.8.2 Developing and delivering schedules, preparing construction estimates, performing constructability review, analyzing alternative designs, studying labor conditions, coordinating and communicating the activities of the Construction Principals throughout the Construction Phase to all Construction Principals; 3.8.3 Continuously monitoring the Project schedule and recommending adjustments to ensure completion of the Project in the most expeditious manner possible; 3.8.4 Working with the Owner and the Engineer to analyze the design, participate in decisions regarding construction materials, methods, systems, phasing, and costs, and suggest modifications to achieve the goals of providing the Owner with the Project within the budget, GMP and schedule; 3.8.5 Providing Value Engineering ("VE") services ongoing through the Project. GC/CM shall develop cost proposals, in the form of additions or deductions from the GMP, including detailed documentation to support such adjustments and shall submit such proposals to Owner for its approval. GC/CM acknowledges that VE services are intended to improve the value received by Owner with respect to cost reduction or life-cycle costs of the Project; 3.8.6 Holding and conducting periodic meetings with the Owner and the Engineer to coordinate, update and ensure progress of the Work; 3.8.7 Submitting monthly written report(s)to the Owner. Each report shall include, but shall not be limited to, Project updates including (i) actual costs and progress for the reporting period as compared to the estimate of costs; (ii) explanations of significant variations; (iii)work completed; (iv)work in progress; (v) changes in the work; and (vi) other information as determined to be appropriate by the Owner. Additional oral or written updates shall be provided to the Owner as deemed appropriate by the GC/CM or as requested by the Owner; 3.8.8 Maintaining a daily log containing a record of weather, Subcontractors working on the site, number of workers, Work accomplished, problems encountered, safety violations and incidents of personal injury and property damage, and other similar relevant data as the Owner may reasonably require. The log shall be available to the Owner and Engineer on request; 3.8.9 Developing and implementing a system of cost control for the Work acceptable to Owner, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. The GC/CM shall identify variances between actual and estimated costs and report the variances to the Owner and Engineer at regular intervals; Pre-Construction Services Conditions—Bogert Pavilion Project Page 6 of 21 3.8.10 Cooperating with any and all consultants hired by Owner; 3.8.11 At Owner's request, cooperating and performing warranty and inspection Work for the Project through the expiration date of the applicable warranty period; 3.8.12 Assisting Owner with start-up of the Project. Such start-up may occur in phases due to phased occupancy; 3.8.13 If applicable, incorporating commissioning and inspection agents' activities into the Project schedule and coordinating Subcontractors required to participate in the commissioning and inspection process; 3.8.14 Performing all other obligations and providing all other services set forth in the Contract Documents; and performing all other acts and supplying all other things necessary to fully and properly perform and complete the Work as required by the Contract. 4. ARTICLE 4—CONTRACT SUM AND GMP 4.1 Contract Sum. Owner shall pay the GC/CM the "Contract Sum" which shall equal the sum of the Preconstruction Fee, Early Work Amendments, the GMP Amendment, plus any Change Orders as applicable. 4.2 The GMP shall be determined in accordance with the formula set forth below and as described in 4.5. The"Cost of the Work" is defined in Article 5. Costs in excess of the GMP shall be paid by the GC/CM without reimbursement by Owner. Changes to the GMP shall only be authorized by Amendment or Change Order. 4.2.1 GMP = [GC/CM Fee X (Guaranteed Maximum Cost for Reimbursable expenses for General Conditions GMCR + Estimated Cost of the Work (ECoW exclusive of the Contractor's Contingency))] + GMCR + Estimated Cost of the Work (ECoW inclusive of the Contractor's Contingency) 4.2.2 GC/CM Fee of 5.0% is calculated on the Estimated CoW (excluding GC/CM's Construction Contingency, or lump-sum Contingency as agreed between Owner and Contractor) + Guaranteed Maximum Cost for Reimbursable expenses for General Conditions GMCR. 4.2.3 The Contractor will not be due GC/CM Fee on the Construction Contingency. 4.3 Preconstruction Fee. The Preconstruction Fee is a lump-sum, fixed amount for all Pre-Construction Services and shall be payable to GC/CM on a cost reimbursement basis up to a maximum sum of Ten Thousand Three Hundred Fifty Two Dollars ($10,352), which shall cover constructability review, value engineering, cost estimating, development of GMP, and all other Preconstruction Phase Services, expenses, reimbursements, and costs. If GC/CM's costs for provision of Preconstruction Phase Services exceed the maximum Preconstruction Fee, GC/CM shall pay such additional cost without reimbursement. GC/CM shall not be entitled to any GC/CM Fee upon the Preconstruction Fee. Owner shall pay the Preconstruction Fee on a cost-reimbursement basis with each application for payment during the Preconstruction Phase. If the total actual Preconstruction Fee is less than the maximum Preconstruction Fee used for initial calculation of the GMP as provided above, the GMP shall be reduced by the difference; provided that Owner may direct instead that any applied portion of the maximum Preconstruction Fee be applied to Construction Phase Services, in which case the GMP shall not be reduced by the portion so applied. Except to the extent the parties may expressly agree to the contrary in the GMP Amendment, no Preconstruction Fee or other fee, compensation or reimbursement shall be payable to GC/CM with respect to Preconstruction Services performed after execution of the GMP Amendment. Pre-Construction Services Conditions—Bogert Pavilion Project Page 7 of 21 4.4 Establishment of GC/CM Fee; Adjustments to GC/CM Fee. 4.4.1 The "GC/CM Fee" shall be a fixed percentage of the Estimated Cost of Work identified in the GMP Amendment, and shall be calculated as 5.0% of the Estimated Cost of the Work at the time of establishment of the GMP. In making such calculation, the Estimated Cost of the Work shall exclude the Preconstruction Fee, the GC/CM Fee itself, but shall include Allowances, selected alternates, Fixed Cost for GC Work, and GMCR's. The GC/CM Fee is inclusive of overhead and profit and all other indirect or non- reimbursable costs. Owner shall pay the GC/CM Fee ratably with each application for payment during the Construction Phase. In the case of Early Work, the GC/CM Fee shall be the above percentage multiplied by the actual Cost of the Early Work. 4.4.2 Notwithstanding any provision of the General Conditions of the Contract for Construction to the contrary, and unless the parties agree in writing to the contrary, any Amendment or Change Order that increases or decreases the GMP shall adjust the GC/CM Fee then in effect by multiplying the percentage shown in 4.4.1 by the change in the Estimated Cost of the Work reflected in such approved Amendment or Change Order. For any Amendment or Change Order that increases or decreases the GMP by more than 15%, parties may negotiate a variance to the contract Fee percentage. In addition, if the Contract is terminated for any reason prior to full completion of the Work (including, without limitation, termination during or following performance of Early Work), the GC/CM Fee shall be limited to the total GC/CM Fee multiplied by the percentage of Work completed and accepted at the time of termination. The GC/CM Fee percentage shall not be subject to adjustment for any other reason, including, without limitation, schedule extensions or adjustments, Project delays, unanticipated costs, negligence, or unforeseen conditions. 4.5 Determination of GMP. 4.5.1 GC/CM shall deliver to Owner a proposed GMP and GMP Supporting Documents at a time designated by Owner during the Preconstruction Phase. If any actual subcontract Offers are available at the time the GMP is being established, GC/CM shall use those subcontract Offers as a basis in establishing the GMP. 4.5.2 As the Plans and Specifications may not be developed to the stage of biddable construction documents at the time the GMP proposal is prepared,the GC/CM shall provide in the GMP forfurther development of the Plans and Specifications by the Engineer that is consistent with the Contract Documents and reasonably identifiable and inferable therefrom. Such further development does not include such things as changes in scope, systems, quantities, kinds and quality of materials, finishes or equipment, all of which, if required, shall be incorporated by Change Order or Amendment with a corresponding GMP adjustment, if any. 4.5.3 The GC/CM shall include with its GMP proposal a written statement of its basis (the "GMP Supporting Documents"), which shall include at a minimum: 4.5.3.1 A list of the Plans and Specifications, including all addenda thereto and the conditions of the Contract,which were used in preparation of the GMP proposal. 4.5.3.2 A list of Allowances and a statement of their basis. 4.5.3.3 A list of the clarifications and assumptions made by the GC/CM in the preparation of the GMP proposal to supplement the information contained in the Plans and Specifications. 4.5.3.4 The proposed GMP, including a statement of the estimated cost organized by trade categories, allowances, contingency, and other items and the associated fees that comprise the GMP. 4.5.3.5 The Date of Substantial Completion upon which the proposed GMP is based, and a schedule of the Construction Documents issuance dates upon which the date of Substantial Pre-Construction Services Conditions—Bogert Pavilion Project Page 8 of 21 Completion is based. 4.5.4 The GC/CM shall meet with the Owner and Engineer to review the GMP proposal and the written statement of its basis. If the Owner or Engineer discovers any inconsistencies or inaccuracies in the information presented, they shall promptly notify the GC/CM, who shall make appropriate adjustments to the GMP proposal, its basis or both. 4.5.5 Prior to the Owner's acceptance of the GC/CM's GMP proposal and issuance of a Notice to Proceed, the GC/CM shall not incur any cost to be reimbursed as part of the Cost of the Work, except as specifically provided in an Early Work Amendment. 4.5.6 The Owner shall authorize and cause the Engineer to revise the Plans and Specifications to the extent necessary to reflect the agreed-upon assumptions and clarifications contained in the GMP Amendment. Such revised Plans and Specifications shall be furnished to the GC/CM in accordance with schedules agreed to by the Owner, Engineer and GC/CM. The GC/CM shall promptly notify the Engineer and Owner if such revised Plans and Specifications are inconsistent with the agreed-upon assumptions and clarifications. 4.5.7 The GMP shall include in the Cost of the Work only those taxes which are enacted at the time the GMP or Early Work is established. 4.5.8 The Guaranteed Maximum Price shall include the GC/CM's contingency, a sum established for the GC/CM's use, with Owner approval (which may be requested and given in writing, by telephone, or by email), to cover costs which are reimbursable as Cost of the Work but which are not the basis for a Change Order. This contingency is not available for Owner-directed design or scope changes and unforeseen or differing site conditions. GC/CM Contingency costs will be reviewed monthly by the Owner for conformance with the Contract. 4.5.8.1 None of the following shall constitute a reimbursable Cost of the Work, or a change order, or be paid for out of the GC/CM Contingency: 4.5.8.1.1 Means and methods or changes in means and methods; 4.5.8.1.2 Extensions of time for weather delays; 4.5.8.1.3 Extensions of time or delays for other than Owner-directed design or scope changes, unforeseen conditions, or differing site conditions; 4.5.8.1.4 Damaged work or non-conforming work; 4.5.8.1.5 Out-of-sequence work; 4.5.8.1.6 Work or delays attributable to subcontractors and suppliers; or, 4.5.8.1.7 Delays or costs resulting from GC/CM decisions, management of the project, errors, omissions, or negligence. 4.5.8.1.8 Under no circumstances will any GC/CM Contingency be used for negligence or violations of law, building codes, or regulations. 4.5.8.2 All claims for use of GC/CM Contingency shall be subject to Paragraph 4.3 of the General Conditions of the Contract for Construction. The Owner may, at its sole discretion,approve use of the GC/CM Contingency on an individual event, case-by-case basis, without voiding or waiving the use of Paragraph 4.3 of the General Conditions of the Contract for Construction. Pre-Construction Services Conditions—Bogert Pavilion Project Page 9 of 21 4.5.8.3 All claims for extension(s) of contract time shall be subject to Paragraph 4.3 of the General Conditions of the Contract for Construction. 4.5.8.4 The GC/CM shall be liable to the Owner for construction administration expenses, including but not limited to costs of the Engineer, as a result of time extensions or delays for other than Owner-directed design or scope changes, weather delays, unforeseen conditions, or differing site conditions. 4.5.9 The GC/CM shall work with the Engineer and Owner to identify and confirm components and systems not specifically shown but required for a complete, fully functional Project. Owner will direct the Engineer to complete the final Construction Documents in accordance with the Project scope agreed upon by all parties at the time the GMP is established. In so doing, Owner acknowledges that GC/CM is providing its services as a Contractor and not a design professional. 4.5.10 Notwithstanding the level of detail represented in the GMP Supporting Documents, the GC/CM shall represent and warrant, at the time that it submits the GMP that the GMP includes the entire cost of all components and systems required for a complete, fully functional facilities in accordance with the Project scope agreed upon by all parties at the time the GMP is established. 4.5.11 In developing the GMP, the GC/CM shall include and identify such allowances and clarifications within the GMP as may be necessary to pay for elements that are required for a complete, fully functional Project. 4.6__ Cancellation of Construction Phase Services. The Owner reserves the sole right at any time, with or without cause, to terminate or cancel any or all pre-construction services and/or not pursue a GMP Amendment/Contract with the GC/CM. 4.7 Failure to Furnish an Acceptable GMP. If the GC/CM does not furnish a GMP acceptable to Owner within Owner's target GMP range, or if Owner determines at any time in its sole discretion that the parties may fail to reach a timely agreement on a GMP acceptable to Owner, Owner may terminate this Contract without liability, and the GC/CM shall not receive additional compensation beyond the Preconstruction Fee under this Contract and sums due under any executed Early Work Amendment. Termination under this provision shall proceed under Article 14 of the General Conditions of the Contract for Construction as a termination for Owner's convenience. GC/CM further agrees that Owner shall not be liable for any damages whether actual, consequential or otherwise, for termination of the Contract under this provision. 4.8 Acceptance of GMP. Upon acceptance of the GMP by Owner, the parties shall execute a GMP Amendment/Contract. 4.9 Owner Savings. If the sum of the remainder of the GC/CM Construction Contingency, plus the actual and final Cost of the Work, is less than the GMP, the savings shall accrue to the Owner. 4.10 Allowance Work. 4.10.1 GC/CM shall not perform any Allowance Work without prior written approval by Owner for the Allowance Work and the price thereof. 4.10.2 Owner shall be entitled to apply any Allowance line items that have not been fully expended to other line item Allowances that have been fully expended, without any resulting increase in the GMP. 4.10.3 If the total Cost of the Allowance Work exceeds the total Allowances within the GMP, GC/CM shall not perform any Allowance Work in excess of such amount until either (i) the parties agree Pre-Construction Services Conditions—Bogert Pavilion Project Page 10 of 21 that the additional Allowance work will be performed within the then-current GMP or (ii) a GMP Amendment or Change Order is executed to increase the GMP by the excess cost of the Allowance work. 4.10.4 The Contract Sum shall not include any Allowance items not identified in the GMP Amendment or the GMP Supporting Documents. 4.10.5 If at the Final Completion of the Project, any portion of the Allowance funds remains unexpended, the GMP shall be reduced by a corresponding amount via a Change Order or Amendment. 4.11 Reallocating Projected Cost Under-runs after Bid(Offer)Buyout. As soon as possible after the awarding of the Work to the primary Subcontractors, GC/CM shall review projected costs and provide the Owner with a buy-out status report showing any projected cost under-runs, reconciling accepted Offers and other reasonably anticipated costs, to the cost estimate used by GC/CM to establish the GMP. This report shall be updated on a monthly basis and until such time that the buyout is complete. GC/CM shall include with its report any underlying documentation requested by Owner used to develop or support such report. GC/CM shall also consider the reduced risk associated with known subcontracting costs, and the impact that reduced risk has on the amount of the GC/CM's Contingency. The parties shall negotiate in good faith to execute a Change Order transferring an appropriate portion of any projected cost under-runs to an Owner-controlled contingency fund, separate from the GC/CM Construction Contingency, to be held within the GMP to pay for additional costs arising from (a) any Owner-directed or approved change to the Work, (b) schedule changes that would otherwise entitle GC/CM to an increase in the GMP, (c) Allowance items after exhaustion of all Allowances, (d) selection by Owner of more expensive alternates than those used for calculation of the GMP, (e) Owner selection of substitutions that increase the Cost of the Work, or (f) any other costs which otherwise would entitle GC/CM to an increase in the GMP. Transfer of an appropriate portion of the under-runs to an Owner-controlled contingency shall occur no earlier than 80% buy-out completion unless agreed to by both parties. 4.12 Notice to Proceed. If Construction Phase Services are added to the Contract, then a notice to proceed will be issued by the Owner to begin the designated or full Construction Phase Services ("Notice to Proceed"). It is anticipated that the Notice to Proceed will be issued on or about March 1,2020 with the actual date to be provided in the GMP Amendment/Contract. A separate Notice to Proceed shall be issued for each Early Work Amendment, if any. 4.13 Completion of Project. The GC/CM shall achieve Substantial Completion of the entire Work not later than the date fixed in the Guaranteed Maximum Price Amendment. 4.14 Time is of the Essence. All time limits stated in the Contract Documents are of the essence. 4.15 Time Extensions. Notwithstanding provisions for Contract time extensions, Owner and GC/CM agree that timely completion of the Work is essential to the success of the Project, and that approval for time extension shall be granted only as a last resort. 4.15.1 GC/CM agrees to make reasonable effort to recover time from delays that are the GC/CM's responsibility and shall not consider this as a compensable, Owner-directed, or forced acceleration. 4.15.2 If a compensable time extension is granted by the Owner,the GC/CM shall be limited to$ to be defined in the GMP Amendment) per day extended overhead (office and field). 4.16 Liquidated Damages. The GC/CM acknowledges that the Owner will sustain damages as a result of the GC/CM's failure to substantially complete the Project in accordance with the Contract Documents. These damages may include, but are not limited to delays in completion, use of the Project, engineering costs to complete the Project, and costs associated with Contract administration and use of Pre-Construction Services Conditions—Bogert Pavilion Project Page 11 of 21 temporary facilities. The GC/CM and the Owner acknowledge that the actual amount of damages would be difficult to determine accurately and agree that that the following liquidated damages figure represents a reasonable estimate of such damages and is not a penalty: 4.16.1 The GC/CM agrees to pay to the Owner the liquidated damage sums set forth in the General Conditions for each day of delay or any fraction thereof and further agrees that Owner may deduct such sums from payments the Owner otherwise owes to GC/CM under the Contract. If such deduction does not result in payment to Owner of the assessed liquidated damages in full, GC/CM shall promptly pay any and all remaining sums due to the Owner upon demand. 5. ARTICLE 5—COSTS OF THE WORK(REIMBURSABLE. INCLUDED IN THE GMP) 5.1 Cost of the Work. The term"Cost of the Work"shall mean the costs as described herein. The Cost of the Work shall include only those items necessarily and reasonably incurred by GC/CM in the proper performance of the Work and specifically identified in this Article, and only to the extent that they are directly related to the Project. 5.1.1 Labor Costs. 5.1.1.1 Wages paid for all labor and construction workers directly employed by the GC/CM in performance of the work. 5.1.1.2 Wages and salaries of the GC/CM's supervisory personnel (i) whether stationed at the site or district office, but only for that portion of time they are providing services related to the project, or (ii) engaged at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work with Owner, or otherwise engaged and off the site when specifically related to the Project, in each case under this clause (iii) only with Owner's prior written approval, and only for that portion of their time directly required for the Work. 5.1.1.3 Cost of all benefits, taxes, insurance, contributions, assessments and benefits required by law or collective bargaining contracts and, for personnel not covered by such contracts,customary benefits such as Social Security, Medicare/Medicaid, sick leave, medical and health benefits, holidays,vacations and pensions,provided such costs are based on wages and salaries included in the Cost of the Work. 5.1.2 Subcontract Costs. GC/CM's actual payment to Subcontractors pursuant to GC/CM's contract with such Subcontractor for the Work on the Project. No amount paid by or payable to any such Subcontractor other than the fixed or cost reimbursement price of its subcontract shall be included in the Cost of the Work, unless otherwise approved in writing by Owner. 5.1.3 Costs of Materials, Supplies, and Equipment incorporated in the Work. 5.1.3.1 Costs, including transportation, of materials, supplies, and equipment incorporated or to be incorporated in the completed Work. 5.1.3.2 Costs for storage on or off site (including applicable insurance), inspection, and testing of materials, supplies and equipment unless specifically noted to be paid by the Owner. 5.1.3.3 Costs of materials in excess of those actually installed, but required to provide reasonable allowance for waste and for spoilage. Unused excess materials, if any, shall be delivered to Owner at the completion of the Work or, at Owner's option, shall be sold by the GC/CM. Net amounts realized, if any, from such sales shall be credited to Owner as a deduction from the Cost of the Work. 5.1.4 Costs of Miscellaneous Equipment and Other Items; Equipment Rental Charges. Pre-Construction Services Conditions—Bogert Pavilion Project Page 12 of 21 5.1.4.1 Costs,including transportation, installation, maintenance,dismantling, removal,and disposal, of materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily owned by the construction workers, which are provided by the GC/CM in the performance of the Work; and cost less salvage value on such items if not fully consumed, whether sold to others or retained by the GC/CM; provided that Owner at Owner's option may require that GC/CM deliver to Owner(at no charge) at the end of the Project any of such items procured for this Project. Cost for items previously used by the GC/CM shall mean fair market value. GC/CM shall charge no additional administrative or other mark-up for purchased items. 5.1.4.2 Rental charges for temporary facilities, machinery, equipment and hand tools not customarily owned by the construction workers, which are provided by the GC/CM at the site, whether rented from the GC/CM or others, and costs of transportation, installation, minor repairs and replacements, dismantling and removal thereof. Rates and quantities of equipment rented shall be according to industry standards, shall not exceed the standard rate paid at the place of the project, and shall not exceed acquisition costs, and for individual items exceeding $10,000, will be subject to Owner's prior approval. GC/CM shall deliver to Owner a list of published rates from time to time at Owner's request. For all items rented or leased, the GC/CM shall charge Owner only the rental charge incurred by GC/CM with no additional administrative or other mark-up. GC/CM shall make efforts and use its best skills and judgment to procure equipment in the most expeditious and economical manner consistent with the interest of the Owner. Efforts shall include, but not be limited to, providing Owner with a rent/buy analysis so that Owner may elect for GC/CM to procure the item in lieu of rental if the facility at issue is expected to be rented for six months or longer. Such rent/buy analysis shall include, where available, a leasing rate commensurate with the expected term of rental of the facility at issue. 5.1.5 Costs of removal of debris from the site. 5.1.6 Cost of internet connection, long-distance telephone calls, postage and parcel delivery charges, telephone service at the site and reasonable petty cash expenses of the site office, computers and other supporting administrative equipment and furnishings, but only to the extent such costs are for the benefit of the Work. 5.1.7 That portion of the travel and subsistence expenses of the GC/CM's personnel determined by Owner to be reasonable and necessary incurred while traveling in discharge of duties connected with the Work. Main office staff travel shall not be reimbursed unless approved in advance by Owner. 5.1.8 Other Costs. 5.1.8.1 Premiums and deductibles for insurance directly attributable to this Contract. 5.1.8.2 Payment and Performance bonds. 5.1.8.3 Sales, use or similar excise taxes imposed by a governmental authority which are directly related to the Work and for which the GC/CM is liable. 5.1.8.4 Fees and assessments for the trade permits and for other permits, licenses and inspections for which the GC/CM is required by the Contract Documents to pay. Plan review fees, assessments, and impact fees are the responsibility of the Owner. 5.1.8.5 GC/CM deposits lost for causes other than the GC/CM's fault or negligence. 5.1.8.6 Costs of drawings, Specifications and other documents required to complete the Work, except as provided by Owner or Engineer. Pre-Construction Services Conditions—Bogert Pavilion Project Page 13 of 21 5.1.8.7 Losses, expenses, or damages during construction and warranty that did not arise from the negligence or wrongful conduct of the GC/CM or its subcontractors. 5.1.8.8 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by Owner. 5.1.9 Repairs to Damaged, Defective or Nonconforming Work. The Cost of the Work shall also include costs which are incurred by the GC/CM in taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property. 5.2 The Guaranteed Maximum Cost for Reimbursable expenses for General Conditions Work (GMCR). GC/CM shall be paid a maximum sum as agreed in the GMP Amendment, as payment for the GC Work, including all labor, materials, and direct and indirect costs thereof. To the extent any GC Work is otherwise described above in this Article, GC/CM's compensation for the same is included in the Cost for GC Work and shall not otherwise be charged as Cost of the Work. The Cost for GC Work, less 5% retainage thereon, shall be paid in equal installments monthly over the number of months of the scheduled Construction Phase, commencing with the first progress billing after Commencement of the scheduled Construction Phase. However, no adjustment in the amount payable for General Conditions Work will be made if the actual construction period is shorter or longer than the number of months scheduled for the Construction Phase, unless the construction period is extended because of an Owner delay or due to unforeseeable conditions. Should the GC/CM spend less than planned on GMCR's, the GC/CM retains that balance. 5.3 GC/CM Overhead. GC/CM shall be paid in accordance with these Conditions for items including home office overhead, supervisory labor burden, travel, per-diems and is part of the GC/CM Fee. 6. ARTICLE 6—COSTS OF THE WORK(NOT REIMBURSABLE. INCLUDED IN THE GMP) 6.1 Costs Excluded from Cost of Work. The following shall not be included in the Cost of the Work: 6.1.1 Salaries and other compensation of the GC/CM's personnel stationed at the GC/CM's principal office or offices other than the site office except as allowed under Articles 5. 6.1.2 Expenses of the GC/CM's principal office and offices other than the site office. 6.1.3 Any overhead and general expenses, except as may be expressly included in Article 5. 6.1.4 GC/CM's capital expenses, including interest on the GC/CM's capital, employed for the Work. 6.1.5 Rental cost of machinery and equipment, except as provided in Article 5. 6.1.6 Any cost associated with the Project not specifically and expressly described in Article 5 or not included in within the Project Cost Matrix. 6.1.7 Costs due to the fault or negligence of the GC/CM, Subcontractors, suppliers, anyone directly or indirectly employed by any of them, or for whose acts any of them may be liable. 6.1.8 The cost of correction of any repair work, nonconforming or defective work, or warranty work in excess of the GMP. 6.1.9 Merit,safety,or other incentive payments, bonuses or awards,or any expenses in connection therewith. 6.1.10 Legal, mediation, or arbitration fees, costs, and expenses except as specifically provided in Pre-Construction Services Conditions—Bogert Pavilion Project Page 14 of 21 the Contract Documents. 6.1.11 Fines and penalties. 6.1.12 Except for Early Work, the cost of Preconstruction Phase Services. 6.1.13 The Cost of the Work for GC Work in excess of the Fixed Cost for GC Work unless such fixed costs are exceeded by other terms included in this Agreement. 6.1.14 Any costs in excess of the GMP. 7. ARTICLE 7—CHANGES IN THE WORK 7.1 Price Adjustments. Adjustments to the Guaranteed Maximum Price required by changes in the Work shall be determined by any of the methods listed in the General Conditions of the Contract for Construction, except that, unless the adjustment is based upon fixed pricing or unit pricing: 7.1.1 The overhead and profit markup for the GC/CM shall be limited to the GC/CM Fee adjustment except for self-performed packages that GC/CM is awarded on a competitive basis consistent with other Subcontract bid packages which may include overhead and profit associated with the self- performed work; 7.1.2 The increase or decrease in the Estimated Cost of the Work, other than for subcontract work, shall be calculated pursuant to Articles 5 and 6 above, instead of being based on GC/CM's direct costs as defined in the General Conditions of the Contract for Construction; and, 7.1.3 In calculating adjustments to subcontracts, unless the parties agree otherwise, the change shall be limited to the Subcontractor's Direct Costs plus the supplemental mark-up provided in the General Conditions of the Contract for Construction, and shall not be modified by Articles 5 and 6 above. 7.2 Adjustments to GMP. Adjustments to the GMP after execution of the GMP Amendment may be made only(i) in the event of Scope Changes or (ii) as otherwise expressly provided in this Contract, and then only in accordance with the following procedure: 7.2.1 GC/CM shall review subsequent iterations of the Plans and Specifications as they are prepared to determine whether, in the opinion of GC/CM, they result in a Scope Change so that it can be determined if an adjustment to the GMP is warranted. 7.2.2 Changes to the GMP shall be initiated by written notice by one party to the other. GC/CM shall deliver any such GMP Change Request to Engineer and Owner's Authorized Representative within thirty (30) days after event of any Scope Change if, in GC/CM's opinion, it constitutes grounds for adjustment of the GMP. Any GMP Change Request shall include a proposal as to the appropriate GMP adjustment with respect to the Scope Change at issue. 7.2.3 GC/CM shall submit its GMP Change Requests as soon as possible, and GC/CM shall not be entitled to claim a GMP increase unless GC/CM submitted a GMP Change Request to Owner's Authorized Representative and to Engineer within the earlier of (a) thirty (30) days after GC/CM has received the information constituting the basis for the claim, or(b) as to Work already solicited, prior to commencement of the portion of the Work for which GC/CM intends to claim a Scope Change; and (c) in any event, prior to GC/CM's signing of a Change Order for the Scope Change. 7.2.4 Owner may, at any time, submit a GMP Change Request requesting a reduction of the GMP, which shall include Owner's basis for such request,which may include,for example, reduction of the GC/CM's Contingency after further development of the Plans and Specifications that form the Pre-Construction Services Conditions—Bogert Pavilion Project Page 15 of 21 basis for the original GMP Amendment, and/or unused Allowances. 7.2.5 GC/CM shall work with Engineer to reconcile all differences in its GMP Change Request with Engineer within seven (7) days from the date of submission of the GMP Change Request. "Reconciled" means that the GC/CM and Engineer have verified that their assumptions about the various categories are the same, and that identifies the reason for differences in the GMP Change Request and the Engineer's position. GC/CM shall submit the Reconciled GMP Change Request to Owner, which submission shall be a condition to any GC/CM claim for a GMP increase. 7.2.6 If the Reconciled GMP Change Request is not acceptable to Owner, GC/CM agrees to work with the Owner and the Engineer to provide a GMP Change Request that is acceptable to Owner. 7.2.7 GC/CM agrees to make all records, calculations, drawings and similar items relating to GMP Change Request available to Owner and to allow Engineer and Owner access and opportunity to view such documents at GC/CM's offices. Upon Owner's reasonable notice, GC/CM shall deliver two copies of such documents to Owner and Engineer at any regular meeting or at the Site. 7.2.8 GMP increases, if any, shall not exceed the increased Cost of the Work arising from the Scope Change (whether based on agreed fixed pricing, or the estimated Cost of the Work increase based on cost-reimbursable pricing), reconciled in accordance with the above provisions,as arising from the incident justifying the GMP increase, plus or minus the GC/CM Fee applicable to such change in the Cost of the Work. 7.2.9 Except as provided in this Article 7.2, adjustments to the GMP shall be reconciled in accordance with the General Conditions of the Contract for Construction. 7.2.10 Execution by Owner. Only the Owner's Authorized Representative has authority to execute Change Orders or Amendments on behalf of Owner. 8. ARTICLE 8—SUBCONTRACTS AND OTHER CONTRACTS 8.1 General Subcontracting Requirements. 8.1.1 Other than Work performed by the GC/CM, the GC/CM shall subcontract the Work to Subcontractors other than the GC/CM and its Affiliates. 8.1.2 The GC/CM shall comply with the laws of the State of Montana and the City of Bozeman with regard to the procurement of subcontractors and suppliers. 8.2 GC/CM's Obligations under Subcontracts. 8.2.1 No use of a Subcontractor or supplier shall relieve the GC/CM of any of its obligations or liabilities under the Contract. Except as may expressly otherwise be provided in this Contract, the GC/CM shall be fully responsible and liable for the acts or omissions of all Subcontractors and suppliers including persons directly or indirectly employed by them. The GC/CM shall have sole responsibility for managing and coordinating the operations of its Subcontractors and suppliers, including the settlement of disputes with or between the GC/CM and any such Subcontractor or supplier. 8.2.2 The GC/CM shall include in each subcontract and require each Subcontractor to include in any lower tier subcontract, any provisions necessary to make all of the provisions of the Contract Documents, including the General Conditions and GC/CM's project schedule, fully effective as applied to Subcontractors. GC/CM shall indemnify Owner for any additional cost based on a subcontractor claim which results from the failure of GC/CM to incorporate the provisions of this Contract in each subcontract. The GC/CM shall provide all necessary Plans, Specifications, Pre-Construction Services Conditions—Bogert Pavilion Project Page 16 of 21 Hazardous Materials reports and instructions to its suppliers and Subcontractors to enable them to properly perform their work. 8.2.3 Retainage from Subcontractors. Except with the Owner's prior approval, payments to Subcontractors shall be subject to retainage of no more than 5%. The Owner and the GC/CM shall agree upon a mutually acceptable procedure for review and approval of payments and retainage for Subcontractors. 8.3 Subcontractor Selection. 8.3.1 Unless otherwise provided in the Request for Proposals, this Article, and the direction of the Owner, the selection of all Subcontractors and suppliers shall be made by competitive offers in a manner that will not encourage favoritism, bias, or substantially diminish competition. 8.3.2 GC/CM shall submit to the Owner its proposed procurement documents for review and comment before they are issued for solicitation. GC/CM shall consider and respond to all Owner comments regarding any proposed offer packages. As offers are received, GC/CM shall submit to the Owner an offer comparison in a mutually agreeable form together with any specific back-up requested by Owner. The competitive process used to award subcontracts by the GC/CM may be monitored by the Owner; provided that such monitoring shall not excuse GC/CM from compliance with the subcontracting requirements of this Contract. GC/CM shall cooperate in all respects with Owner's monitoring. The Owner shall be advised in advance of and be given the opportunity to be present at offer openings, and GC/CM shall provide him or her with a summary or abstract of all Offers in form acceptable to the Owner, and copies of particular offers if requested, prior to GC/CM's selection of Offerors. Prior to opening offers, the GC/CM agrees to disclose in writing to Owner any financial interest it has in any such Subcontractor, supplier or other contracting party whenever such Subcontractor, supplier or contracting party intends to compete on any Project work, directly or indirectly, including whether such party is an Affiliate of GC/CM. GC/CM shall also disclose seven (7) days in advance if they will be providing an offer as a self-performed scope of work. 8.3.3 The following minimum requirements apply to the Subcontract solicitation process: 8.3.3.1 For procurements with an estimated value of more than$80,000,solicitations will be advertised by bids as required by 7-5-4302, MCA. The GC/CM shall obtain two written quotes or may advertise for bids for procurements over five thousand dollars ($5,000.00) up to eighty thousand dollars ($80,000.00). 8.3.3.2 All bid openings for Subcontracting and Self-Performed Work shall be open and available to the public, the Owner, and the Engineer, regardless of the bid opening location. GC/CM may propose an alternate delivery method to the Owner for Owner's review and approval. 8.3.3.3 Unless specific other prior arrangement has been made with Owner, all offers will be written (hardcopy, email, or facsimile), and submitted to a specific location at a specific time. GC/CM shall time-stamp all offers as received. Subcontractors must be qualified to perform the Work for this Project by being appropriately registered and in compliance with all laws of the State of Montana. 8.3.3.4 If fewer than three (3) offers are submitted in response to any solicitation (inclusive of any offer submitted by GC/CM), prior written approval by Owner shall be required to accept the offer. Field Work and/or Subcontracting/Self-Performed Work by the GC/CM shall be competitively bid, with solicitations advertised per MCA 7-5-4302, and subject to the same Owner review and oversight as all other competitively bid subcontractor scopes of work. 8.3.3.5 GC/CM may develop and implement a prequalification process for particular solicitations, followed by selection of successful offers among those offerors that GC/CM determines Pre-Construction Services Conditions—Bogert Pavilion Project Page 17 of 21 meet the prequalification standards, with Owner's prior approval of such prequalification process. 8.3.3.6 GC/CM shall comply, and require Subcontractor compliance with, State of Montana Department of Labor & Industry prevailing wage rates as specified in the RFP and as adopted at the time of the solicitation. 8.3.3.7 Owner may at its sole discretion, require GC/CM to re-solicit for Offers based on the same or modified documents. If GC/CM does receive a responsive offer within the initial solicitation, Owner shall be responsible for all cost and schedule overruns due to Owner directed re- solicitation except where cause of re-solicitation is the fault of the GC/CM. 8.3.3.8 GC/CM shall review all Offers and shall work with Offerors to clarify Offers, reduce exclusions, verify scope and quantities, and seek to minimize work subsequently awarded via the Change Order process. 8.3.3.9 The GC/CM will document any and all discussions, questions and answers, modifications and responses to or from any Offeror and ensure that the same are distributed to all Offerors, and Owner shall be entitled to inspect such documentation on request. 8.3.3.10 GC/CM shall determine the lowest Offer for each solicitation that meets GC/CM's reasonable performance standards for the components of the Work at issue; provided that if GC/CM determines it is unable to execute a suitable subcontract with such Offeror, GC/CM may, with Owner's prior approval, execute a subcontract with the second-lowest Offeror. This paragraph does not preclude the award of a sub-contract to any Offeror selected as part of a pre-qualification process. 8.3.4 With authorization by Owner, Work may be subcontracted on other than a low price basis, including without limitation, through competitive negotiation. As a condition to its authorization, Owner may require GC/CM's agreement to establish and implement qualification and performance criteria for Offerors, including a scoring system within requests for proposals. Examples include: where there are single fabricators of materials; special packaging requirements for Subcontractor work; design-build work or, where an alternative contracting method can be demonstrated to clearly benefit Owner. 8.3.5 GC/CM shall notify Owner in writing in advance before award of any proposed Subcontract, which notice shall include summaries in a form acceptable to Owner of all Offers received for the Subcontract at issue. Owner reserves the right to disapprove any proposed Subcontractors, suppliers and Subcontract or supply contract awards, based on legal standards of responsibility. Owner shall not unreasonably disapprove any proposed Subcontractor or supplier and increased costs due to Owner's disapproval shall be cause for an increase in the GMP. 8.3.6 GC/CM's subcontracting records shall not be considered public records; provided, however, that Owner and other agencies of the State shall retain the right to audit and monitor the subcontracting process in order to protect the Owner's interests. 8.4 GC/CM Field Work, Subcontracted/Self-Performed Work by GC/CM. 8.4.1 With consent of the Owner, the GC/CM or its Affiliate may bid and compete for Field Work and/or Subcontracted/Self-Performed Work with its own forces. All field work and/or subcontracting/self-performed work by the GC/CM shall be competitively bid as provided in Article 8. 8.4.2 Except as provided in Article 8, any other portion of the Work proposed to be field work and/or subcontracted/self-performed by the GC/CM, including without limitation provision of any materials, equipment, or supplies, shall be subject to the provisions of Article 8. Pre-Construction Services Conditions—Bogert Pavilion Project Page 18 of 21 8.4.3 When assembling and using bid packages, for those items for which the GC/CM intends to submit a competing Offer for Self-Performed Work and after approval by the Owner, such intent must be publicly announced with the solicitation for bids required by this Article, and the Owner notified in writing that this announcement has been made. Any GC/CM competing Offer shall be forwarded to the Owner prior to the bid opening. All Offers for this work shall be publicly available by GC/CM at an announced time,date, and place as all other offers. GC/CM may propose an alternate delivery method to the Owner for Owner's review and approval. 8.4.4 For all field work and/or subcontracted/self-performed work, the GC/CM shall at a minimum provide separate project management,foremen, supervision, accounting, etc. as if it were any other separate subcontracting entity, unless prior written approval is granted by the Owner. The GC/CM is expressly prohibited from using the personnel, positions, general conditions costs, and overhead from directly supervising and managing any field work and/or subcontract/self-performed work, unless specific prior written approval is granted by the Owner. 8.5 Protests. GC/CM, acting as an independent contractor, shall include in the competitive process to award all subcontracts, a protest process for Subcontractors and suppliers that are competing Offerors, which process shall be subject to approval by Owner. GC/CM shall be solely responsible for resolving procurement protests of Subcontractors and suppliers. GC/CM shall indemnify, defend, protect and hold harmless Owner from and against any such procurement protests and resulting claims or litigation unless protest exists in whole or in part by the Owner's actions,directions,or negligence,who shall then share its proportionate responsibility for claims or litigation. GC/CM shall act as an independent contractor, and not an agent of Owner, in connection with any procurement protest. The provisions of this Article are solely for the benefit of Owner, and do not grant any rights or remedies (including third party beneficiary rights) to any Offer or other protester, in connection with any procurement protest or claim. 9. ARTICLE 9—RECORDS ACCOUNTING AUDITING 9.1 Accounting and Audit Access. The GC/CM shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Contract; the accounting and control systems shall be satisfactory to Owner. Owner and Owner's representatives, including the City of Bozeman's accountants and auditors, shall be afforded reasonable and regular access to the GC/CM's records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Contract, and the GC/CM shall preserve these for a period of three (3) years after final payment, or for such longer period as may be required by law. 9.2 Periodic and Final Audits. Owner may, at its discretion, perform periodic audits of the Cost of the Work and any other reimbursable costs associated with the Project. Owner intends to conduct a final audit of reimbursable costs prior to the Contract closeout. The GC/CM shall cooperate fully with Owner in the performance of such audits. Disputes over audit findings or conclusions shall be subject to the process set forth in the General Conditions. 10. ARTICLE 10—REPRESENTATIONS AND WARRANTIES 10.1 Representations. GC/CM represents and warrants to Owner as of the effective date of this Contract: 10.1.1 it is qualified to do business as a licensed general contractor under the laws of the State of Montana, and has all requisite corporate power and corporate authority to carry on its business as now being conducted; 10.1.2 it has full corporate power and corporate authority to enter into and perform the Contract and to consummate the transactions contemplated hereby; GC/CM has duly and validly executed and delivered the Contract to Owner and that the Contract constitutes the legal, valid and binding Pre-Construction Services Conditions—Bogert Pavilion Project Page 19 of 21 obligation of GC/CM, enforceable against GC/CM in accordance with its terms, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law); 10.1.3 GC/CM's execution and delivery of the Contract and the consummation of the transactions contemplated hereby will not conflict with or result in a material breach of any terms or provisions of, or constitute a material default under, (i) GC/CM's Articles of Incorporation or Bylaws; (ii) any note, bond, mortgage, indenture, license, lease, contract, commitment, agreement or other instrument or obligation to which GC/CM is a party or by which GC/CM may be bound; or(iii) any statute, order, writ, injunction, decree, rule or regulation applicable to GC/CM; 10.1.4 no material consent, approval, authorization, declaration or other order of, or registration or filing with, any court or regulatory authority or any third person is required for the valid execution, delivery and performance of the Contract by GC/CM or its consummation of the transactions contemplated hereby; 10.1.5 there is no action, proceeding, suit, investigation or inquiry pending that questions the validity of the Contract or that would prevent or hinder the consummation of the transactions contemplated hereby; and, 10.1.6 the GC/CM's Project Manager and Superintendent (if assigned by GC/CM) are duly appointed representatives and each has the authority to bind the GC/CM to any and all duties, obligations and liabilities under the Contract Documents and any Amendments or Change Orders thereto. 11. ARTICLE 11 —MISCELLANEOUS 11.1 Headings. The headings used in the Contract are solely for convenience of reference, are not part of the Contract and are not to be considered in construing or interpreting the Contract. 11.2 Merger. The Contract Documents constitute the entire contract between the parties. No waiver, consent, modification or change of terms of the Contract shall bind either party unless in writing and signed by both parties. Such waiver, consent, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given.There are no understandings, agreements, or representations, oral orwritten, not specified herein regarding the Contract. GC/CM, by signature of its representative, hereby acknowledges that it has read the Contract, understands it and agrees to be bound by its terms and conditions. 11.3 Progress Payments. 11.3.1 Progress Payments. Based upon applications for payment submitted pursuant to the General Conditions, Owner shall make progress payments on account of the Preconstruction Fee, Cost of the Work, General Conditions, and GC/CM Fee, less 5% retainage, to the GC/CM as provided below and elsewhere in the Contract Documents. Retainage will not be withheld on Preconstruction Services. A progress payment shall not be considered acceptance or approval of any Work or waiver of any defects therein. 11.3.2 Percentage of Completion. Applications for payment shall show the percentage of completion of each portion of the Work as of the end of the period covered by the application for payment. The percentage of completion shall be the lesser of (i) the percentage of that portion of the Work which has actually been completed; or (2) the percentage obtained by dividing (a) the expense that has actually been incurred by the GC/CM on account of that portion of the Work for which the GC/CM has made or intends to make actual payment prior to the next application for payment by(b) the share of the GMP allocated to that portion of the Work in the Schedule of Values. Pre-Construction Services Conditions—Bogert Pavilion Project Page 20 of 21 11.3.3 Calculation of Payment. Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: 11.3.3.1 Take that portion of the GMP properly allocable to completed Work as determined by multiplying the percentage of completion of each portion of the Work under the Schedule of Values by the share of the GMP allocated to that portion of the Work in the Schedule of Values. Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute shall be included; 11.3.3.2 Add that portion of the GMP properly allocable to materials and equipment delivered and suitably stored and otherwise in compliance with the General Conditions; 11.3.3.3 Add the GC/CM Fee. The portion of the GC/CM Fee payable shall be an amount that bears the same ratio to GC/CM Fee as the sum of the amounts in the two preceding Clauses bears to the Cost of the Work, but in no event causing the total GC/CM Fee payments to exceed the total GC/CM Fee, except as modified by the Amendments and Change Orders; 11.3.3.4 Subtract the aggregate of previous payments made by and retained by the Owner; 11.3.3.5 Subtract the shortfall, if any, indicated by the documentation required to substantiate prior applications for payment, or resulting from errors subsequently discovered by the Owner in such documentation; 11.3.3.6 Subtract any amounts for which the Owner has withheld or nullified payment as provided in the Contract Documents; and, 11.3.3.7 Subtract 5% retainage on the entire progress payment (with the exception of Pre- Construction Services). 12. ARTICLE 12—CONTRACT ATTACHMENTS APPENDICES EXHIBITS Exhibit A—GC/CM Request for Proposal Exhibit B—General Conditions of the Contract Pre-Construction Services Conditions—Bogert Pavilion Project Page 21 of 21 GENERAL CONDITIONS OF THE CONTRACT Bogert Pavilion Project I. ARTICLE 1 —GENERAL PROVISIONS 1.1. BASIC DEFINITIONS 1.1.1. CONTRACT DOCUMENTS. The Contract Documents consist of the Contract between Owner and Contractor (hereinafter the "Contract"), Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Contract, other documents listed in the Contract and Modifications issued after execution of the Contract. A Modification is: (a) a written amendment to the Contract signed by both parties; (b) a Change Order; (c)a Construction Change Directive; or, (d)a written order for a minor change in the Work issued by the Owner. The Contract Documents shall include the bidding documents and any alterations made thereto by addenda. In the event of a conflict, discrepancy, contradiction, or inconsistency within the Contract Documents and for the resolution of same, the following order of hierarchy and control shall apply and prevail: 1) Contract; 2) Addenda; 3) Pre-Construction Services Conditions; 4) Supplementary General Conditions, if any; 5) General Conditions of the Contract for Construction; 6) Specifications; 7) Drawings 1.1.1.1. If a conflict, discrepancy, contradiction, or inconsistency occurs within or between the Specifications and the Drawings, resolution shall be controlled by the following: 1.1.1.1.1. As between figures, dimensions, or numbers given on drawings and any scaled measurements, the figures, dimensions, or numbers shall govern; 1.1.1.1.2. As between large scale drawings and small scale drawings, the larger scale drawings shall govern; 1.1.1.1.3. As between the technical specifications and drawings; the technical specifications shall govern. 1.1.1.1.4. Shop Drawings and Submittals: Shop drawings and other submittals from the Contractor, subcontractors, or suppliers do not constitute a part of the Contract Documents. 1.1.1.2. The Contractor acknowledges, understands and agrees that the Contract Documents cannot be changed except as provided herein by the terms of the Contract. No act(s), action(s), omission(s), or course of dealing(s) by the Owner with the Contractor shall alter the requirements of the Contract Documents and that alteration can be accomplished only through a written Modification process defined herein. 1.1.2. THE DRAWINGS. The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, intent, location, and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams. 1.1.3. THE SPECIFICATIONS. The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services. 1.1.4. THE CONTRACT. The entire Contract for Construction is formed by the Contract Documents. The Contract represents the entire, complete, and integrated agreement between the Owner and General Conditions of the Construction Contract—Bogert Pavilion Project Page 1 of 57 Contract hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind between: (a) the Owner and any Subcontractor, Sub-subcontractor, or Supplier; or, (b) between any persons or entities other than the Owner and Contractor. 1.1.5. THE WORK. The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to completely fulfill the Contract and the Contractor's obligations. The Work may constitute the whole or a part of the Project and does not include any Pre-Construction Services. 1.1.6. THE PROJECT. The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by the Owner or by separate contractors. 1.1.7. NOTICE TO PROCEED. The term Notice to Proceed means formal written notice to begin performing specific services or acts including Construction Phase services, Pre-Construction Phase services or any other enumerated service or act set forth in the Contract. The Contract Time will commence to run on the day indicated in the Notice to Proceed. 1.1.8. SITE. The term Site refers to that portion of the property on which the Work is to be performed or which has been otherwise set aside for use by the Contractor. 1.1.9. PUNCH LIST. The term Punch List means, collectively, unfinished items of the construction of the Project, which unfinished items of construction are minor or insubstantial details of construction, mechanical adjustment or decoration remaining to be performed, the non-completion of which would not materially affect the use of the Project, and which are capable of being completed within thirty (30) days of Substantial Completion, subject to the availability of special order parts and materials. By mutual agreement of the Parties, the Punch List may also include other unfinished items that are not capable of being completed within thirty(30)days of Substantial Completion due to environmental conditions beyond the reasonable control of Contractor. 1.2. CORRELATION, INTER-RELATIONSHIP, AND INTENT OF THE CONTRACT DOCUMENTS 1.2.1. The intent of the Contract Documents is to include all items and all effort necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary and inter-related, and what is required by one shall be as binding as if required by all. Performance by the Contractor shall be required to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results. 1.2.2. Organization of the Specifications into divisions,sections and articles,and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. It is the Contractor's responsibility to control the Work under the Contract. 1.2.3. Unless otherwise stated in the Contract Documents, words which have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. 1.3. CAPITALIZATION 1.3.1. Terms capitalized in these General Conditions include those which are: (a) specifically defined; and, (b) the titles of numbered articles and identified references to Paragraphs, Subparagraphs General Conditions of the Construction Contract—Bogert Pavilion Project Page 2 of 57 and Clauses in the document. 1.4. INTERPRETATION 1.4.1. In the interest of brevity the Contract Documents frequently omit modifying words such as"all"and "any" and articles such as"the"and"an," but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. 1.4.2. Where the word "days" is used in the Contract Documents, it means calendar days unless otherwise specified. 1.5. EXECUTION OF THE CONTRACT AND CONTRACT DOCUMENTS 1.5.1. The Contract shall be signed by the Owner and Contractor. Execution of the Contract by the Contractor constitutes the complete and irrevocable binding of the Contractor and his Surety to the Owner for complete performance of the Work and fulfillment of all obligations. By execution of the Contract, the Contractor acknowledges that it has reviewed and familiarized itself with all aspects of the Contract Documents and agrees to be bound by the terms and conditions contained therein. 1.5.2. Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become generally familiar with local conditions under which the Work is to be performed, and correlated personal observations with requirements of the Contract Documents. 1.5.3. The Contractor acknowledges that it has taken all reasonable actions necessary to ascertain the nature and location of the work, and that it has investigated and satisfied itself as to the general and local conditions which can affect the work or its cost, including but not limited to: (1) conditions bearing upon transportation, disposal, handling, and storage of materials; (2) the availability of labor, water, gas, electric power, phone service, and roads; (3) uncertainties of weather, river stages, tides, or similar physical conditions at the site; (4) the conformation, topography, and conditions of the ground; and, (5) the character of equipment and facilities needed for performance of the Work. The Contractor also acknowledges that it has satisfied itself as to the character, quality, and quantity of surface and subsurface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from an inspection of the site, including all exploratory geotechnical work done by the Owner, as well as from the drawings and specifications made a part of this contract. Any failure of the Contractor to take the action described and acknowledged in this paragraph will not relieve the Contractor from responsibility for properly ascertaining and estimating the difficulty and cost of successfully performing the Work or for proceeding to successfully perform the Work without additional expense to the Owner. 1.5.4. The Owner assumes no responsibility for any conclusions or interpretations made by the Contractor based on the information made available by the Owner, nor does the Owner assume responsibility for any understanding reached or representation made by any of its officers, agents, or employees concerning conditions which can affect the Work unless that understanding or representation is expressly stated in the Contract Documents. 1.5.4.1. Performance of any portion of the Work, beyond that required for complying with the specifications and all other requirements of the Contract, shall be deemed to be for the convenience of the Contractor and shall be at the Contractor's sole expense. 1.5.4.2. There shall be no increase in the contract price or time allowed for performance which is for the convenience of the Contractor. 1.6. OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS,AND OTHER INSTRUMENTS OF SERVICE 1.6.1. The Drawings, Specifications and other documents, including those in electronic form, prepared General Conditions of the Construction Contract—Bogert Pavilion Project Page 3 of 57 by the Engineer are Instruments of Service through which the Work to be executed by the Contractor is described. 2. ARTICLE 2—THE OWNER 2.1. THE CITY OF BOZEMAN 2.1.1. The Owner is the City of Bozeman and is the sole entity to be identified as Owner in the Contract and as referred to throughout the Contract Documents as if singular in number. The Owner shall designate in writing a representative who shall have express authority to bind the Ownerwith repect to all matters requiring the Owner's approval or authorization. The term"Owner" means the Owner or the Owner's authorized representative. 2.1.2. The observations and participations of the Owner or its authorized representative do not alleviate any responsibility on the part of the Contractor. The Owner reserves the right to observe the work and make comment. Any action or lack of action by the Owner shall not be construed as approval of the Contractor's performance. 2.1.3. The Owner reserves the right to require the Contractor, all sub-contractors and material suppliers to provide lien releases at any time. The Owner reserves the right to withhold progress payments until such lien releases are received for all work for which prior progress payments have been made. Upon the Owner's demand for lien releases (either verbally or written), the Contractor, all sub-contractors and material suppliers shall provide such releases with every subsequent application for payment through Final Acceptance of the Project. 2.1.4. Except for permits and fees, including those required under Subparagraph 3.7.1, which are the responsibility of the Contractor under the Contract Documents, the Owner shall secure and pay for necessary approvals, easements, assessments and charges required for construction, use or occupancy of permanent structures or for permanent changes in existing facilities. 2.1.5. Information or services required of the Owner by the Contract Documents shall be furnished by the Owner within seven (7) days unless an alternative period is agreed to by the Parties. Any other information or services relevant to the Contractor's performance of the Work under the Owner's control shall be furnished by the Owner after receipt from the Contractor of a written request for such information or services. 2.1.6. Unless otherwise provided in the Contract Documents, the Contractor will be furnished, free of charge, such copies of Drawings and Specifications as are reasonably necessary for execution of the Work. 2.1.7. Whenever the Contractor is required under the Contract to indemnify the Owner, "Owner" shall mean the City of Bozeman and the City of Bozeman's officers, elected officials, employees, and agents. 2.2. OWNER'S RIGHT TO STOP WORK 2.2.1. If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents as required by Paragraph 12.2 or persistently fails to carry out Work in accordance with the Contract Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated. However, the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity, except to the extent required by Subparagraph 6.1.3. The issuance of a stop work order by the Owner as a result of Contractor's failure to correct non-conforming work, shall not give rise to a claim by the Contractor or any subcontractor for additional cost, time, or other adjustment. General Conditions of the Construction Contract—Bogert Pavilion Project Page 4 of 57 2.3. OWNER'S RIGHT TO CARRY OUT THE WORK 2.3.1. If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a seven-day period after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner may after such seven-day period give the Contractor a second written notice to correct such deficiencies within a three-day period. If the Contractor within such three-day period after receipt of such second notice fails to commence and continue to correct any deficiencies, the Owner may, without prejudice to other remedies the Owner may have, correct such deficiencies. In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the reasonable cost of correcting such deficiencies, including Owner's expenses and increased costs made necessary by such default, neglect, or failure. If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the Owner. 2.4. OWNER'S RIGHT TO PERSONNEL 2.4.1. The Owner reserves the right to have the Contractor and/or subcontractors remove person(s) and/or personnel from any and all work on the project with cause but without cost to the Owner. Such requests from the Owner may be made verbally or in writing. Cause may be, but is not limited to, any of the following: incompetence, poor workmanship, poor scheduling abilities, poor coordination, disruption to the facility or others, poor management, causes delay or delays, disruption of the Project, will not strictly adhere to facility procedures and Project requirements either knowingly or unknowingly, insubordination, drug/alcohol use, possession of contraband, belligerent acts or actions,etc.The Contractor shall provide replacement person(s)and/or personnel acceptable to the Owner at no cost to the Owner. 2.4.2. Any issue or circumstance relating to or resulting out of this clause shall not be construed or interpreted to be interference with or impacting upon the Contractor's responsibilities and liabilities under the Contract Documents. 2.4.3. Person(s) and/or personnel who do not perform in accordance with the Contract Documents, shall be deemed to have provided the Owner with cause to have such persons removed from any and all involvement in the Work. 2.4.4. The Contractor agrees to defend, indemnify and hold harmless the Owner from any and all causes of action, demands, claims, damages, awards, attorneys' fees, and other costs brought against the Owner by any and all person(s) or personnel as a result of actions under this clause. 3. ARTICLE 3—THE CONTRACTOR 3.1. GENERAL 3.1.1. The Contractor is the person or entity identified as such in the Contract and is referred to throughout the Contract Documents as if singular in number. The term "Contractor' means the Contractor or the Contractor's authorized representative and GC/CM as identified in the Pre-Construction Services Conditions. 3.1.2. Construction Contractor Registration: The Contractor is required to be registered with the Department of Labor and Industry under 39-9-201 and 39-9-204 MCA prior to the Contract being executed by the Owner. A bidder must demonstrate that it has registered or promises that it will register immediately upon notice of award and prior to the commencement of any work. If the prevailing bidder cannot or does not register in time for the Owner to execute the Contract within fifteen (15) days of the date on the notice of award, the Owner may award, at its sole discretion, General Conditions of the Construction Contract—Bogert Pavilion Project Page 5 of 57 to the next lowest responsible bidder who meets this requirement. The Owner will not execute a contract for construction nor issue a Notice to Proceed to a Contractor who is not registered per 39-9-401(a) MCA. It is solely the Contractor's responsibility to ensure that all Subcontractors are registered in accordance with Title 39, Chapter 9, MCA. 3.1.3. The Owner's engagement of the Contractor is based upon the Contractor's representations that it: 3.1.3.1. has the requisite skills,judgment, capacity, expertise, and financial ability to perform the Work; 3.1.3.2. is experienced in the type of labor and services the Owner is engaging the Contractor to perform; 3.1.3.3. is authorized, licensed and registered to perform the type of labor and services for which it is being engaged in the State and locality in which the Project is located; 3.1.3.4. is qualified, willing and able to perform the labor and services for the Project in the manner and scope defined in the Contract Documents; and, 3.1.3.5. has the expertise and ability to provide labor and services that will meet the Owner's objectives, intent and requirements, and will comply with the requirements of all governmental, public, and quasi-public authorities and agencies having or asserting jurisdiction over the Project. 3.1.4. The Contractor shall perform the Work in accordance with the Contract Documents. 3.1.5. The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents by tests, inspections or approvals required or performed by persons other than the Contractor. 3.1.6. Quality Control (i.e. ensuring compliance with the Contract Documents) and Quality Assurance (i.e. confirming compliance with the Contract Documents) are the responsibility of the Contractor. Testing, observations, and/or inspections performed or provided by the Owner are solely for the Owner's own purposes and are for the benefit of the Owner. The Owner is not liable or responsible in any form or fashion to the Contractor regarding quality assurance or extent of such assurances. The Contractor shall not, under any circumstances, rely upon the Owner's testing or inspections as a substitute or in lieu of its own Quality Control or Assurance programs. 3.2. REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR 3.2.1. Before starting each portion of the Work, the Contractor shall carefully study and compare the various Drawings and other Contract Documents relative to that portion of the Work, shall take field measurements of any existing conditions related to that portion of the Work and shall observe any conditions affecting the Work. These obligations are for the purpose of facilitating construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents. However, any errors, inconsistencies or omissions discovered by the Contractor shall be reported promptly to the Owner as a request for information in such form as the Owner may require. 3.2.2. Except as otherwise expressly provided in this Contract, the Contractor assumes all risks, liabilities, costs,and consequences of performing any effort or work in accordance with any written or oral order (including but not limited to direction, instruction, interpretation, or determination) of a person not authorized in writing by the Owner to issue such an order. 3.2.3. Sufficiency of Contract Documents: Prior to submission of its bid, and in all events prior to and upon signing the Guaranteed Maximum Price Amendment, the Contractor certifies, warrants and guarantees that it has received, carefully reviewed, and evaluated all aspects of the Contract Documents and agrees that said Documents are adequate, consistent, coordinated, and General Conditions of the Construction Contract—Bogert Pavilion Project Page 6 of 57 sufficient for bidding and constructing the Work requested, intended, conceived, and contemplated therein. 3.2.3.1 The Contractor further acknowledges its continuing duty to review and evaluate the Contract Documents during the performance of its services and shall immediately notify the Owner of any problems, conflicts, defects, deficiencies, inconsistencies, errors, or omissions it discovers in the Contract Documents and the Work to be constructed; and, any variances it discovers between the Contract Documents and applicable laws,statutes, building codes, rules or regulations. 3.2.5.2 If the Contractor performs any Work which it knows or should have known due to its experience, ability, qualifications, and expertise in the construction industry, that involves problems, conflicts, defects, deficiencies, inconsistencies, errors, or omissions in the Contract Documents and the Work to be constructed and, any variances between the Contract Documents and applicable laws, statutes, building codes, rules or regulations, without prior written notification to the Owner and without prior authorization to proceed from the Owner, the Contractor shall be responsible for and bear the costs and delays (including costs of any delay) of performing such Work and all corrective actions as directed by the Owner. 3.2.5.3 Any and all claims resulting from the Contractor's failure, including those of any subcontractor or supplier, to carefully review, evaluate, and become familiar with all aspects of the Contract Documents shall be deemed void and waived by the Contractor. 3.2.6. Sufficiency of Site Conditions: Prior to submission of its bid, and in all events prior to and upon signing the Contract, the Contractor certifies, warrants and guarantees that it has visited, carefully reviewed, evaluated, and become familiar with all aspects of the site and local conditions at which the Project is to be constructed. The Contractor agrees that the Contract Documents are adequate, consistent, coordinated, and sufficient representation of the site and local conditions for the Work. 3.2.6.1 The Contractor certifies it has reviewed and become familiar with all aspects of the Environmental Assessments, the Site Survey and Geotechnical Report for the Project and has a full understanding of the information provided therein, prior to executing the Guaranteed Maximum Price Amendment. 3.2.6.2 If the Work involves modifications, renovations, or remodeling of an existing structure(s) or other man-made feature(s), the Contractor certifies, warrants and guarantees that it has reviewed, evaluated, and become familiar with all available as-built and record drawings, plans and specifications, and has thoroughly inspected and become familiar with the structure(s) or man-made feature(s). 3.2.6.3 Any and all claims resulting from the Contractor's failure, including those of any subcontractor or supplier, to visit, carefully review, evaluate, and become familiar with all aspects of the Site, available geotechnical information, and local conditions at which the Project is to be constructed shall be deemed void and waived by the Contractor. 3.3. SUPERVISION AND CONSTRUCTION PROCEDURES 3.3.1. The Contractor shall supervise and direct the Work using the Contractor's best skill and attention recognizing that time and quality are of the essence of the Work. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters. It is the responsibility of and incumbent upon the Contractor to ensure, confirm, coordinate, inspect and oversee all Work (which is inclusive of but not limited to all submittals, change orders, schedules, workmanship, and appropriate staffing with enough competent and qualified personnel) so that the Work is not impacted in terms of any delays, costs, damages, or additional time, or General Conditions of the Construction Contract—Bogert Pavilion Project Page 7 of 57 effort on the part of Owner. If the Contract Documents give specific instructions concerning construction means, methods, techniques,sequences or procedures,the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures. If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the Owner and shall not proceed with that portion of the Work without further written instructions from the Owner. If the Contractor is then instructed to proceed with the required means, methods, techniques, sequences or procedures without acceptance of changes proposed by the Contractor, the Owner shall be solely responsible for any resulting loss or damage. The Contractor shall: review any specified construction or installation procedure; advise the Owner if the specified procedure deviates from good construction practice; advise the Owner if following the procedure will affect any warranties, including the Contractor's general warranty, or of any objections the Contractor may have to the procedure and shall propose any alternative procedure which the Contractor will warrant and guarantee. 3.3.2. The Contractor shall furnish management, supervision, coordination, labor and services that: (1) expeditiously, economically, and properly completes the Work; (2) comply with all requirements of the Contract Documents; and, (3) are performed in a quality workmanlike manner and in accordance with the standards currently practiced by persons and entities performing or providing comparable management, supervision, labor and services on projects of similar size, complexity, cost, and nature to this Project. However,the standards currently practiced within the construction industry shall not relieve the Contractor of the responsibility to perform the Work to the level of quality, detail,and excellence defined and intended by the Contract Documents. 3.3.3. All services and labor rendered by the Contractor, including any subcontractors or suppliers, shall be performed under the immediate supervision at the site of persons possessing expertise and the requisite knowledge in the discipline or trade of service being rendered. The Contractor shall maintain such supervision and personnel at all times that the Contractor's personnel, subcontractors, and/or suppliers are at the site. The Contractor shall never be absent from the site during performance of any portion of the Work by any entity under the supervision and direction of the Contractor. Full time attendance by the Contractor from Notice to Proceed through Final Acceptance is an explicit requirement of this Contract. 3.3.4. The Contractor shall be responsible to the Owner for acts, damages, errors, and omissions of the Contractor's employees, subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors. 3.3.5. The Contractor shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. 3.4. LABOR,WAGES,AND MATERIALS 3.4.1. Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, permits, licenses, goods, products, equipment, tools, construction equipment and machinery, water, heat, all utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work in accordance with the Contract Documents,whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. 3.4.2. The Contractor may make substitutions only with the consent of the Owner and in accordance with a Change Order. This opportunity to request substitutions does not negate or waive any requirement for the Contractor to follow a pre-bidding "prior approval" requirement nor obligate the Owner to approve any substitution request. General Conditions of the Construction Contract—Bogert Pavilion Project Page 8 of 57 3.4.3. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. 3.4.4 Prevailing Wages and Montana Residents. 3.4.4.1. The Contractor and all subcontractors at any level or tier of the Work shall give preference to the employment of bona fide Montana residents in the performance of the Work and shall pay the standard prevailing rate of wages, including fringe benefits for health and welfare and pension contributions and travel allowance provisions in effect and applicable to the county or locality in which the work is being performed. (18-2-403, MCA) 3.4.4.2. The Commissioner of The Montana Department of Labor and Industry (DOLT) has established the standard prevailing rate of wages in accordance with 18-2-401 and 18-2-402, MCA. Contractor shall utilize the"State of Montana, Prevailing Wage Rates" in effect at the time of advertising for bids. The Commissioner of the Montana DOLI has established the resident requirements in accordance with 18-2-409, MCA. The Contractor and all subcontractors at any level or tier of the Work shall direct any and all questions concerning prevailing wage and Montana resident issues for all aspects of the Work to DOLT. 3.4.4.3. The Contractor and all subcontractors at any tier or level of the Work, and as determined by the Montana DOLT, shall classify all workers in the project in accordance with the State of Montana, Prevailing Wage Rates. In the event the Contractor is unable to classify a worker in accordance with these rates he shall contact DOLT for a determination of the classification and the prevailing wage rate to be paid. 3.4.4.4. The Contractor and all subcontractors at any tier or level of the Work shall be responsible for obtaining wage rates for all workers prior to their performing any work on the project. The Contractor is required to pay and insure that its subcontractors at any tier or level and others also pay the prevailing wage determined by the DOLT, insofar as required by Title 18 of the MCA and the pertinent rules and standards of DOLT. 3.4.4.5. It is not the responsibility of the Owner to determine who classifies as a subcontractor, sub- subcontractor, material man, supplier, or any other person involved in any aspect of the Work at any tier or level. All such determinations shall be the sole responsibility of the Contractor, subcontractors, sub-subcontractors, material men, suppliers and others involved in the project at any tier or level. The Contractor,subcontractors, sub-subcontractors, material men, suppliers and others involved in the project shall defend, indemnify and hold harmless the Owner from all claims, attorneys' fees, damages and/or awards involving prevailing wage or Montana resident issues. Any changes to wages or penalties for failure to pay the correct wages will be the sole responsibility of the Contractor and/or his subcontractors and no further charges or claims shall be made to the Owner. If the parties mutually agree or an arbitrator or court determines that any change in wages is due and any part is attributable to the Owner, the Owner's sole liability shall be for the amount of wages ordered only and not for other expenses, charges, penalties, overhead, profit or other mark-ups. 3.4.4.6. In accordance with 18-2-422(1) MCA, each job classification's standard prevailing wage rate, including fringe benefits, that the contractors and employers shall pay during construction of the project is included herein by both reference to DOLI's "Building" or 'Heavy/Highway" schedules, as applicable to the project, and as part of these Contract Documents. 3.4.4.7. The Contractor and every employer, including all subcontractors at any tier or level, is required by 18-2-422(2) MCA to maintain payroll records in a manner readily capable of being certified for submission under 18-2-423 MCA, for a period of not less than 3 years after the contractor's, subcontractor's, or employer's completion of work on the project or the Final Acceptance by the Owner, whichever is later. General Conditions of the Construction Contract—Bogert Pavilion Project Page 9 of 57 3.4.4.8. Each contractor is required by 18-2-422(3) MCA to post in a visible and accessible location a statement of all wages and fringe benefits in compliance with 18-2-423. 3.5. WARRANTY AND GUARANTEE 3.5.1. The Contractor warrants to the Owner that materials and equipment furnished under the Contract will be new and of good quality unless otherwise required or permitted by the Contract Documents, that the Work will be free from defects not inherent in the quality required or permitted, and that the Work will conform to the requirements of the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective and rejected. The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Owner, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. 3.5.2. The Contractor shall and does hereby warrant and guarantee all work,workmanship, and materials for the full warranty period as specified in the Contract Documents. The warranty period shall be defined as commencing with Substantial Completion(or with each Substantial Completion if there is more than one) of the Project, or any portion thereof, and continuing for one (1) calendar year from the date of Final Acceptance of the entire project by the Owner. The date of Final Acceptance shall be the date of the Owner's signature on the final request for payment unless otherwise agreed upon in writing for the entire project or any portion thereof, by the Owner and Contractor. 3.5.3. In addition to the one (1) calendar year warranty and guarantee specified in this herein above, the Contractor warrants and guarantees all materials and workmanship for the roofing system for a period of two(2)calendar years from the date of Final Acceptance. This warranty shall cover all labor and materials for roof and roofing finish systems (e.g. flashing, terminations, parapet caps, etc.) repairs from moisture penetration and/or defects in workmanship. 3.5.4. Manufacturer and product warranties and guarantees, as provided by the manufacturer or as specified in the Contract Documents, are in addition to the Contractor's warranty. 3.6. TAXES 3.6.1. The Contractor is responsible for and shall pay all sales, consumer, use, and similar taxes for the Work provided by the Contractor which are legally enacted when bids are received or negotiations concluded, whether or not yet effective or merely scheduled to go into effect. 3.6.2. In compliance with 15-50-206 MCA, the Contractor will have 1% of his gross receipts withheld by the Owner from all payments due and sent to the Montana Department of Revenue. Each subcontractor who performs work greater than $5,000 shall have 1% of its gross receipts withheld by the Contractor and sent to the Montana Department of Revenue. The Contractor shall notify the Department of Revenue on the Department's prescribed form. 3.7. PERMITS, FEES,AND NOTICES 3.7.1. Unless otherwise provided in the Contract Documents, the Owner shall secure and pay for the building permit and other permits and governmental fees, licenses and inspections necessary for proper execution and completion of the Work which are customarily secured after execution of the Contract, including but not limited to, the building permit fee and sewer connection fee. Electrical, Plumbing, and Mechanical permit fees shall be paid by Contractor, or related subcontractors responsible for these trades. General Conditions of the Construction Contract—Bogert Pavilion Project Page 10 of 57 3.7.2. The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders of public authorities applicable to performance of the Work. 3.7.3. If the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, and rules and regulations, and does so without providing notice to the Owner,the Contractor shall assume responsibility for such Work and shall bear the costs attributable to correction. The Contractor shall be solely responsible to insure that all work it performs is in full compliance with all prevailing and applicable codes and regulations. 3.7.4. If the Contractor encounters conditions at the Site that are (a) subsurface or otherwise concealed physical conditions that differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, that differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, the Contractor shall promptly provide written notice to the Owner before conditions are disturbed and in no event later than seven (7) days after first observance of the conditions. The Owner will promptly investigate such conditions and, if the Owner determines that they differ materially and cause an increase or decrease in the Contractor's cost of,or time required for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or Contract Time, or both. If the Owner determines that the conditions at the Site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified,the Owner shall promptly notify Contractor in writing, stating the reasons. If Contractor disputes the Owner's determination, Contractor may proceed as provided in Section 4.3. 3.8. ALLOWANCES 3.8.1. The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items covered by allowances shall be supplied for such amounts and by such persons or entities as the Owner may direct. 3.8.2. Unless otherwise provided in the Contract Documents and with specific reference to the calculation and approval of Allowance Work defined in Article 4.10 in the Pre-Construction Services Conditions: 3.8.2.1. Allowances shall cover the cost to the Contractor of labor, materials and equipment delivered at the site and all required taxes, less applicable trade discounts; 3.8.2.2. Contractor's costs for overhead, profit for stated allowance amounts shall be included by the Contractor in the Contract Sum but not in the allowances; 3.8.2.3. Whenever costs within the GMP are more than stated Owner allowances, the Contract Sum may be adjusted accordingly by Change Order if there is change in the scope of the Project after submission of the GMP. The Contractor shall be responsible for documenting and informing the Owner of any changes in the scope of the Project. If costs are less than stated Owner allowances, the Contract Sum shall be adjusted accordingly by Change Order. If there is a change in scope of the Project, the amount of the Change Order shall reflect the difference between actual costs and the allowances under Clause 3.8.2.1. 3.8.3. Materials and equipment under an allowance shall be selected by the Owner. 3.8.4. Contractor agrees that a contingency allowance, if any, is for the sole use of Owner to cover unanticipated costs. 3.9. CONTRACTOR'S PERSONNEL 3.9.1. The Contractor shall employ competent personnel, supervisors, project managers, project General Conditions of the Construction Contract—Bogert Pavilion Project Page 11 of 57 engineers, project superintendent, and all others who shall be assigned to the Work throughout its duration. All personnel assigned by the Contractor to the Work shall possess the requisite experience,skills,abilities, knowledge, and integrity to perform the Work. 3.9.2. The Contractor agrees that the employees identified in the response to GC/CM Request for Proposal (RFP) shall be fully and completely engaged to the extent stipulated in the Proposal response for the duration of the Project, except for catastrophic events including but not limited to termination of employment, illness, accident, or death. Any changes in the GC/CM Project Team members or roles should be agreed to with the Owner in writing. 3.9.3. The superintendent and others as assigned shall be in attendance at the Project site during the performance of any and all Work. The superintendent shall represent the Contractor. All communications given to the Contractor's personnel such as the project manager or the superintendent, whether verbal, electronic or written, shall be as binding as if given to the Contractor. 3.9.4. It is the Contractor's responsibility to appropriately staff, manage, supervise and direct the Work which is inclusive of the performance, acts, and actions of his personnel and subcontractors. As such, the Contractor further agrees to indemnify and hold harmless the Owner, and to protect and defend both from and against all claims, attorneys' fees, demands, causes of action of any kind or character, including the cost of defense thereof, arising in favor of or against the Owner, Contractor, their agents, employees, or any third parties on account of the performance, behavior, acts or actions of the Contractor's personnel or subcontractors. 3.9.5. Prior to the commencement of any work,the Contractor shall prepare and submit a personnel listing and organizational chart in a format acceptable to the Owner which lists by name, phone number (including cell phone),job category, and responsibility the Contractor's key/primary personnel who will work on the Project. The Contractor shall promptly inform the Owner in writing of any proposed replacements, the reasons therefore, and the name and qualifications of any proposed replacements. The Owner shall have the right to reject any proposed replacements without cost or claim being made by the Contractor. The chart shall be provided to the Owner at the time of the pre-construction conference. 3.10. CONSTRUCTION SCHEDULES 3.10.1. The Contractor shall, promptly after being provided the Notice to Proceed with construction,prepare and submit for the Owner's information a Contractor's construction schedule for the Work. The schedule shall not exceed time limits current under the Contract Documents, shall be revised at appropriate intervals as required by the conditions of the Work and per the requirements of the Contract Documents, shall be related to the entire Project to the extent required by the Contract Documents, and shall provide for expeditious and practicable execution of the Work. The Contractor's schedule shall be in the "Critical Path Method"and shall show the Critical Path of the Work in sufficient detail to evaluate the Contractor's progress. A request for time extension by the Contractor will not be allowed unless a change in the Work is approved by the Owner and materially affects the Critical Path. It is the Contractor's responsibility to demonstrate that any time extensions requests materially affect the Critical Path. 3.10.2. The Contractor shall prepare and keep current, for the Owner's approval, a schedule of submittals which is coordinated with the Contractor's Construction Schedule and allows the Owner reasonable time to review submittals. 3.10.3. The Contractor shall perform the Work in accordance with the most recent schedule submitted to the Owner. 3.10.4. The Contractor's operations (including but not limited to the Contractor's forces employed, General Conditions of the Construction Contract—Bogert Pavilion Project Page 12 of 57 sequences of operations, and methods of operation) at all times during the performance of the contract shall be sufficient to insure the completion of the Work within the specified performance period. 3.10.5. The Critical Path Method Construction Schedule prepared by the Contractor must be in a form that is acceptable to the Owner. 3.10.5.1. The Schedule shall show the estimated progress of the entire Project through the individual time periods allowed for completion of each discipline, trade, phase, section, and aspect of the Work. The Contractor shall provide written reports of all logic and resource loading data with the Schedule and with all updates to the Schedule. 3.10.5.2. The Schedule shall show percent complete, progress to date, project work, and projected time to complete the work for all activities. The percent complete and minor schedule changes, including additions of activities, change orders, construction change directives, changes to sequences of activities and significant changes in activity demands must be shown by a revised Schedule. A written report providing details about the changes and what actions are anticipated to get the work completed in the contractual time period shall be submitted with the revised schedule. 3.10.5.3. The Construction Schedule shall include coordinate dates for performance of all divisions of the Work, including shipping and delivery, off-site requirements and tasks, so the Work can be completed in a timely and orderly fashion consistent with the required dates of Substantial Completion and Final Acceptance. 3.10.5.4. The Construction Schedule shall include: (i) the required commencement date, the required dates of Substantial Completion(s) and Final Acceptance for the complete Project and all phases (if any); (ii) any guideline and milestone dates required by the Owner or the Contract Documents; (iii) subcontractor and supplier schedules; (iv) a submittal schedule which allows sufficient time for review and action by the Owner; (v)the complete sequence of all construction activities with start and completion dates; and, (vi) required decision dates. 3.10.5.5. By receiving, reviewing, and/or commenting on the Construction Schedule or any portion thereof (including logic), Owner does not assume any of the Contractor's responsibility or liability that the Schedule be coordinated or complete, or for timely and orderly completion of the Work. 3.10.5.6. Receiving, reviewing, and/or commenting on the Schedule, any portion thereof, or any revision thereof, does not constitute an approval, acknowledgement, or acceptance of any durations, dates, milestones, or performance indicated therein. 3.10.5.7. A printout of the Schedule's logic showing all activities is required with the Schedule and with all updates to the Schedule. 3.10.6. The Contractor shall review and compare, at a minimum on a weekly basis, the actual status of the Work against its Construction Schedule. 3.10.7. The Contractor shall routinely, frequently, and periodically (but not less than monthly) update and/or revise its Construction Schedule to show actual progress of the Work through the date of the update or revision, projected level of completion of each remaining activity, activities modified since the previous update or revision, and major changes in scope or logic. The updated/revised Schedule shall be accompanied by a narrative report which: (a) states and explains any modifications of the critical path, if any, including any changes in logic; (b) defines problem areas and lists areas of anticipated delays; (c) explains the anticipated impact the change in the critical path or problems and delays will have on the entire Schedule and the completion of the Work; (d) General Conditions of the Construction Contract—Bogert Pavilion Project Page 13 of 57 provides corrective action taken or proposed; and, (e) states how problems or delays will be resolved in order to deliver the Work by the required phasing milestones (if any), Substantial Completion(s), and Final Acceptance dates. 3.10.8. Delay in Performance: If at any time the Contractor anticipates that performance of the Work will be delayed or has been delayed, the Contractor shall: (1) immediately notify the Owner by separate and distinct correspondence of the probable cause and effect of the delay, and possible alternatives to minimize the delay; and, (2)take all corrective action reasonably necessary to deliver the Work by the required dates. Nothing in this paragraph or the Contract Documents shall be construed by the Contractor as a granting by the Owner of constructive acceleration. The results of failure to anticipate delays, or to timely notify the Owner of an anticipated or real delay, are entirely the responsibility of the Contractor whether compensable or not. 3.10.9. Early Completion: The Contractor may attempt to achieve Substantial Completion(s) on or before the date(s) required in the Contract. However, such early completion shall be for the Contractor's sole convenience and shall not create any real or implied additional rights to Contractor or impose any additional obligations on the Owner. The Owner will not be liable for nor pay any additional compensation of any kind to the Contractor for achieving Substantial Completion(s) or Final Acceptance prior to the required dates as set forth in the Contract. 3.10.10. Float in Schedule. Any and all float time in the Contractor's schedule, regardless of the path or activity, shall accrue to the benefit of the Owner and the Work, and not to the Contractor. Float also includes any difference shown between any early completion dates shown on the Contractor's Schedule for any phasing milestone(s), Substantial Completion(s)or Final Acceptance and the dates or durations as required by the Contract Documents. 3.10.11. Modification of Required Substantial Completion(s) or Final Acceptance Dates: Modification of the required dates shall be accomplished only by duly authorized, accepted, and approved change orders stating the new date(s) with specificity on the change order form. All rights, duties, and obligations, including but not limited to the Contractor's liability for actual, delay, and/or liquidated damages, shall be determined in relation to the date(s) as modified. 3.11. DOCUMENTATION AND AS-BUILT CONDITIONS AT THE SITE 3.11.1. The Contractor shall maintain at the site for the Owner one record copy of the Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order and accurately marked to record current field changes and selections made during construction, and one record copy of approved Shop Drawings, Product Data, Samples and similar required submittals. These shall be available to the Owner at any time and shall be delivered to the Owner upon completion of the Work. 3.11.2. The Owner shall not be required to process final payment until all documentation and data required by the Contract Documents is submitted to and approved by the Owner including, but not limited to, the As-Built Drawings. The Owner will not process any final request for payment until the Owner has received and verified that the Contractor has performed the requirements pertaining to the as- built drawings. 3.11.3. The as-built drawings shall be neatly and clearly marked during construction to record all deviations, variations, changes, and alterations as they occur during construction along with such supplementary notes and details necessary to clearly and accurately represent the as-built condition. The as-built drawings shall be available at all times to the Owner. 3.12. SHOP DRAWINGS, PRODUCT DATA AND SAMPLES 3.12.1. Definitions: General Conditions of the Construction Contract—Bogert Pavilion Project Page 14 of 57 3.12.1.1. Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work. 3.12.1.2. Product Data are illustrations, standard schedules, performance charts, instructions, brochures,diagrams and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. 3.12.1.3. Samples are physical examples which illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. 3.12.2. Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required by the Contract Documents the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Owner is subject to the limitations of Subparagraph 4.2.7. Informational submittals upon which the Owner is not expected to take responsive action may be so identified in the Contract Documents. Submittals which are not required by the Contract Documents may be returned by the Owner without action. 3.12.3. The Contractor shall review, approve, and submit to the Owner, Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents within sixty(60)days of being issued the Notice To Proceed unless noted otherwise and shall do so in such sequence as to cause no delay in the Work or in the activities of the Owner or of separate contractors. Any and all items submitted by the Contractor which are not marked as reviewed for compliance with the Contract Documents and approved by the Contractor, or in the opinion of the Owner, have not been reviewed for compliance by the Contractor even if marked as such, may be returned by the Owner without action and shall not result in any accusation or claim for delay or cost by the Contractor. Any submittal that, in the opinion of the Owner, is incomplete in any area or detail may be rejected and returned to the Contractor. It is the responsibility of and incumbent upon the Contractor to ensure and confirm that all submittals are complete, accurate, and in conformance to the Contract Documents prior to submission. 3.12.4. By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents and guarantees to the Owner that the Contractor has determined and verified materials, field measurements and field construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. 3.12.5. The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved by the Owner. Should the Contractor, Subcontractors or Sub-subcontractors install,construct,erect or perform any portion of the Work without approval of any requisite submittal, the Contractor shall bear the costs, responsibility, and delay for removal, replacement, and/or correction of any and all items, material, and/or labor. 3.12.6. The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Owner's approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the Owner in writing of such deviation at the time of submittal and: (1)the Owner has given written approval to the specific deviation as a minor change in the Work; or, (2)a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples or similar submittals by the Owner's approval thereof. 3.12.7. The Contractor shall direct specific attention, in writing or on re-submitted Shop Drawings, Product General Conditions of the Construction Contract—Bogert Pavilion Project Page 15 of 57 Data, Samples or similar submittals, to revisions other than those requested by the Owner on previous submittals. In the absence of such written notice the Owner's approval of a re- submission shall not apply to such revisions. 3.12.8. The Contractor shall not be required to provide professional services which constitute the practice of architecture or engineering unless such services are specifically required by the Contract Documents for a portion of the Work or unless the Contractor needs to provide such services in order to carry out the Contractor's responsibilities for construction means, methods, techniques, sequences and procedures. The Contractor shall not be required to provide professional services in violation of applicable law. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the Owner will specify all performance and design criteria that such services must satisfy. The Contractor shall cause such services or certifications to be provided by a properly licensed design professional,whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to the Owner. The Owner shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided the Owner has specified to the Contractor all performance and design criteria that such services must satisfy. Pursuant to this subparagraph, the Owner will review, approve or take other appropriate action on submittals only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. 3.12.9. Unless noted otherwise in the Contract Documents,the Contractor shall submit to the Owner within sixty(60) days from the date of the Notice To Proceed a minimum of six(6) complete copies of all shop/setting drawings, schedules, cut sheets, products, product data, and samples required for the complete Work, or as specified within the Contract Documents. Copies shall be reviewed, marked, stamped and approved on each and every copy by the Contractor prior to submission to the Owner or they shall be returned without review or action. The Owner shall review within seven (7) days (unless an alternative period is agreed to by the parties), making corrections, rejections, or other actions as appropriate. The Owner's approval or actions on shop/setting drawings, schedules, cut sheets, products, product data, or samples shall not relieve the Contractor from responsibility for, nor deviating from, the requirements of the plans and specifications. Any deviations from the plans and specifications requested or made by the Contractor shall be brought promptly to the attention of the Owner. 3.12.10. Cost for Re-Submissions: the Contractor is responsible for ensuring that all shop drawings, product data, samples, and submittals contain all information required by the Contract Documents to allow the Owner to take action. The Contractor shall pay the Owner's cost of reviewing any submittal item exceeding two reviews for the same item. Such costs shall be deducted from the contract sum by Change Order. The Contractor agrees that any action taken by the Owner is solely in the Owner's discretion and is non-negotiable for the purposes of the Owner's cost recovery for multiple (i.e. more than one) review. 3.13. USE OF SITE 3.13.1. The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. Only materials and equipment which are to be used in the Work shall be brought to and stored on the Project Site by the Contractor. 3.13.2. The Contractor shall not damage, endanger, compromise or destroy any part of the Project or the site, including but not limited to work performed by others, monuments, stakes, bench marks, survey points, utilities, existing features or structures. The Contractor shall be fully and exclusively responsible for and bear all costs and delays(including and costs of delay)for any General Conditions of the Construction Contract—Bogert Pavilion Project Page 16 of 57 damage, endangerment, compromise, or destruction of any part of the Project or site. 3.13.3. The Contractor shall coordinate his operations with the Owner in order that the Owner will have maximum use of existing facilities surrounding the area of the Work, as agreed upon, at all times during normal working hours. Contractor further agrees to coordinate his operations so as to avoid interference with the Owner's normal operations to as great an extent as possible. 3.13.4. Except as may be specifically provided in the Contract Documents,the Contractor shall provide all necessary temporary facilities, including power, water, sanitation, scaffolding, storage, and reasonable security. If Owner makes any such facilities available to Contractor, it is without representation or warranty as to their adequacy for Contractor's use, and Contractor shall indemnify, defend, and hold Owner harmless from and against any claims arising out of Contractor's use of such facilities. 3.13.5. The Contractor shall ensure that the Work, at all times, is performed in a manner that affords reasonable access, both vehicular and pedestrian, to the site of the Work and all adjacent areas.The Work shall be performed,to the fullest extent reasonably possible, in such a manner that public areas adjacent to the site of the Work shall be free from all debris, building materials and equipment likely to cause hazardous conditions. Without limitation of any other provision of the Contract Documents, Contractor shall not interfere with the occupancy or beneficial use of(1) any areas and buildings adjacent to the site of the Work or(2) the Building in the event of partial occupancy, as more specifically described in Paragraph 9.9, without prior approval of the Owner. 3.13.6. The Contractor shall, for the duration of this Agreement, maintain all areas used by it in performance of the contract free from excessive dust as reasonably determined and directed by the Owner, and shall comply with the OSHA standards and those of all other regulatory agencies, statutes and laws. Industry accepted methods of dust control suitable for the areas involved will be permitted,where such is in compliance with the foregoing and with the approval of the Owner. No separate payment will be made for dust control beyond what may be previously approved by Owner as a General Condition Cost or as included in as a subcontract bid package item. 3.13.7. The Contractor shall perform all work in strict conformity with all applicable laws, rules and regulations relating to pollution of any land, stream, and the atmosphere. The Contractor shall, at its expense, provide suitable facilities to prevent the introduction of any substances or materials onto the land, or into any stream, river, lake or other body of water including groundwater. 3.13.8. The Contractor shall not permit or suffer the introduction or use of tobacco or any intoxicants, including alcohol or illegal drugs, upon the Project site. 3.14. CUTTING AND PATCHING 3.14.1. The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. 3.14.2. The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the Owner or separate contractors by cutting, patching or otherwise altering such construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the Owner or a separate contractor except with written consent of the Owner and of such separate contractor; such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the Owner or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. General Conditions of the Construction Contract—Bogert Pavilion Project Page 17 of 57 3.15. WORK HOURS, CLEAN UP,AND SITE CONTROL 3.15.1. Work will be performed in accordance with the Contract Documents and the Bozeman Municipal Code or other applicable law governing the Contractor's performance of the Work. No delays resulting from compliance with applicable laws or regulations may form the basis for any claim by the Contractor for delay damages or additional compensation or for any extensions of the Contract Time. Daily work hours shall be limited to those stipulated by Bozeman Municipal Code section 16.06.070.2. Normal work hours for Owner's testing agencies shall be defined as Monday through Friday, 8:00 a.m.to 5:00 p.m.except State or Federal holidays. Contractor shall provide a minimum of 24 hours' notice to Owner for any testing or inspection that Contractor requires of Owner, or Owner's designated representatives outside of normal business hours and shall be responsible for payment of same to the appropriate party for off-hours Work.The Contractor must notify the Owner as soon as possible if Work must be performed outside such times in the interest of the safety and protection of persons or property at the Site or adjacent thereto, or in the event of an emergency. In no event shall the Contractor permit Work to be performed at the Site without the presence of the Contractor's superintendent or person responsible for the protection of persons and property at the Site and compliance with all applicable laws and regulations, if different from the superintendent. 3.15.2. The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract during performance of the Work and at the direction of the Owner. Contractor must keep tools, construction equipment, machinery and surplus materials suitably stored when not in use. At completion of the Work, the Contractor shall remove from and about the Project waste materials, rubbish, the Contractor's tools, construction - equipment, machinery and surplus materials.- - - 3.15.3. The Contractor must comply with the Bozeman Municipal Code (Chet. 16, Article 6) (Noise) and any successor or substitute provisions covering the regulation of noise. It is the duty of the Contractor to familiarize itself with those provisions and perform the Work in compliance with those provisions. 3.15.4. If the Contractor fails to clean up in a manner reasonably satisfactory to the Owner within forty- eight(48) hours after notice or as otherwise required by the Contract Documents, the Owner may clean the Site and back charge the Contractor for all costs associated with the cleaning. 3.16. ACCESS TO WORK 3.16.1. The Contractor shall provide the Owner access to the Work at all times wherever located. 3.17. ROYALTIES, PATENTS AND COPYRIGHTS 3.17.1. The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of copyrights and patent rights and shall hold the Owner harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Contract Documents or where the copyright violations are contained in Drawings, Specifications or other documents prepared by the Owner. However, if the Contractor has reason to believe that the required design, process or product is an infringement of a copyright or a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished to the Owner. 3.18. INDEMNIFICATION 3.18.1. To the fullest extent permitted by law, the Contractor shall indemnify, defend, and hold harmless the Owner, and agents and employees of the Owner (the"Indemnitees')from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, liabilities (including General Conditions of the Construction Contract—Bogert Pavilion Project Page 18 of 57 liability where activity is inherently or intrinsically dangerous), or damages of whatever kind or nature connected therewith occasioned by, growing or arising out of or resulting from or in any way related to (a) the negligent, reckless, or intentionally wrongful acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable; provided that the Contractor shall not be required to indemnify the Indemnitees to the extent damages arise out of bodily injury to persons or damage to property caused by or resulting from negligence of the Owner, its agents, officers, or employees, Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist as to an Indemnitee. 3.18.2. Contractor's indemnity under this Section 3.18 shall be without regard to and without any right to contribution from any insurance maintained by Owner. 3.18.3. In claims against any person or entity indemnified under this Paragraph 3.18 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under Subparagraph 3.18.1 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers'compensation acts, disability benefit acts or other employee benefit acts. 3.18.4. Contractor's obligations under this Section 3.18 shall survive termination of the Contract and completion of the Project. 4. ARTICLE 4—ADMINISTRATION OF THE CONSTRUCTION CONTRACT 4.1. OWNER'S ADMINISTRATION OF THE CONSTRUCTION CONTRACT 4.1.1. The Owner will provide administration of the Contract as described in the Contract Documents throughout the complete duration of the Project. 4.1.2. The Owner will visit the site at intervals appropriate to the stage of the Contractor's operations to:(1) become generally familiar with the progress and quality of the portion of the Work completed; and, (2) to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Owner will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Contractor's Work. The Owner will neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, for the safety of any person involved in the work,or for the safety precautions and programs in connection with the Work, since these are solely the Contractor's rights and responsibilities under the Contract Documents. 4.1.3. The Owner will not be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents. The Owner will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work. 4.1.4. Communications Facilitating Contract Administration. Communications by and with Subcontractors and material suppliers shall be through the Contractor to the Owner. Communications by and with separate contractors shall be through the Owner to the Contractor. 4.1.5. The Owner will review and certify the amounts due the Contractor. 4.1.6. The Owner will have authority to reject Work that does not conform to the Contract Documents. General Conditions of the Construction Contract—Bogert Pavilion Project Page 19 of 57 Whenever the Owner considers it necessary or advisable, the Owner will have authority to require inspection or testing of the Work in accordance with the General Conditions and any applicable technical specification requirements,whether or not such Work is fabricated, installed or completed. However, neither this authority of the Owner nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Owner to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons or entities performing portions of the Work. 4.1.7. The Owner will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. Unless otherwise agreed to by the parties, the Owner's action will be taken within seven (7) days or such shorter period as is necessary to cause no delay in the Work or in the activities of the Owner, Contractor or separate contractors, while allowing sufficient time to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Owner's review of the Contractor's submittals shall not relieve the Contractor of the obligations under Paragraphs 3.3, 3.5 and 3.12. The Owner's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Owner, of any construction means, methods, techniques, sequences or procedures. The Owner's approval of a specific item shall not indicate approval of an assembly of which the item is a component. 4.1.8. The Contractor will prepare Change Orders and Construction Change Directives for Owner's approval. The Contractor will investigate and make recommendations regarding concealed and unknown conditions as provided in Section 3.7.4. 4.1.9. The Owner will conduct inspections to determine the date or dates of Substantial Completion(s) and the date of Final Acceptance, will receive written warranties and related documents required by the Contract and assembled by the Contractor. 4.1.10. The Owner's observations or inspections do not alleviate any responsibility on the part of the Contractor. The Owner reserves the right to observe and inspection the work and make comment. Action or lack of action following observation or inspection is not to be construed as approval of Contractor's performance. 4.2. CLAIMS AND DISPUTES 4.2.1. Definition. A Claim is a written demand or assertion by one of the parties seeking,as a matter of right, adjustment or interpretation of Contract terms, payment of money, extensions of time or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes, controversies, and matters in question between the Owner and Contractor arising out of or relating to the Contract. Claims must be initiated by written notice.The responsibility to substantiate Claims shall rest solely with the party making the Claim. 4.2.1.1 Time Limits on Claims. Claims by either party must be initiated within twenty-one (21) days after occurrence of the event giving rise to such claim. The following shall apply to the initiation of a claim: 4.2.1.1.1. A written notice of a claim must be provided to the other party within twenty-one(21) days after the occurrence of the event or the claim is waived by the claiming party and void in its entirety. 4.2.1.1.2. Claims must be initiated by separate, clear, and distinct written notice within the twenty- one (21) day time frame to the other party and must contain the notarized statement General Conditions of the Construction Contract—Bogert Pavilion Project Page 20 of 57 in Sub-Paragraph 4.3.1.5 when the claim is made by the Contractor. Discussions in any form with the Owner, whether at the site or not, do not constitute initiation of a claim. Notes in project meeting minutes, email correspondence, change order proposals, or any other form of documentation does not constitute initiation of a claim. The written notice must be a separate and distinct correspondence provided in hardcopy to the Owner and must delineate the specific event and outline the causes and reasons for the claim whether or not cost or time have been fully determined. Written remarks or notes of a generic nature are invalid in their entirety. Comments made at progress meetings, project site visits, inspections, emails, voice mails, and other such communications do not meet the requirement of providing notice of claim. 4.2.1.1.3. Physical Injury or Physical Damage. Should the Owner or Contractor suffer physical injury or physical damage to person or property because of any error, omission, or act of the other party or others for whose acts the other party is legally and contractually liable, claim will be made in writing to the other party within a reasonable time of the first observance of such physical injury or physical damage but in no case beyond thirty (30) days of the first observance. The notice shall provide sufficient detail to enable the other party to investigate the matter. The provisions of this paragraph shall not be construed as a substitute for or a waiver of the provisions of any applicable statute of limitations or repose. In all such cases, the indemnification provisions of the Contract shall be effectual and the Contractor's insurance shall be primary and in full effect. 4.2.1.2. All Claims must contain sufficient justification and substantiation with the written notice or they may be rejected without consideration by the other party with no additional impact or consequence to the Contract Sum, Contract Time, or matter(s) in question in the Claim. 4.2.1.3. If additional compensation is claimed, the exact amount claimed and a breakdown of that amount into the following categories shall be provided with each and every claim: 4.2.1.3.1. Direct costs (as listed in Subparagraph 7.3.9.1 through 7.3.9.5); 4.2.1.3.2. Indirect costs (as defined in Paragraph 7.2.5); and, 4.2.1.3.3. Consequential items (i.e. time extensions, credits, logic, reasonableness, impacts, disruptions, dilution)for the change. 4.2.1.4 If additional time is claimed the following shall be provided with each and every claim: 4.2.1.4.1 The specific number of days and specific dates for which the additional time is sought; 4.2.1.4.2 The specific reasons, causes, and/or effects whereby the Contractor believes that additional time should be granted; and, 4.2.1.4.3 The Contractor shall provide analyses, documentation, and justification of its claim for additional time in accordance with the latest Critical Path Method schedule in use at the time of event giving rise to the claim. 4.2.1.5 With each and every claim, the Contractor shall submit to the Owner a notarized statement containing the following language: "Under penalty of law (including perjury and/or false/fraudulent claims against the General Conditions of the Construction Contract—Bogert Pavilion Project Page 21 of 57 State), the undersigned, (Name) (Title) Of (Company) hereby certifies, warrants, and guarantees that this claim made for Work on this Contract is a true statement of the costs, adjustments and/or time sought and is fully documented and supported under the contract between the parties. (Signature) (Date)" 4.2.2. Continuing Contract Performance. 4.2.2.1. Pending final resolution of a Claim except as otherwise agreed in writing or as provided in Subparagraph 9.7.1 and Article 14, the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract Documents on the portion of the Work not involved in a Claim. 4.2.3. Claims for Cost or Time for Concealed or Unknown Conditions. 4.2.3.1 If conditions are encountered at the site which are: (a) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents; or, (b) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notice by the observing party shall be given to the other party promptly before conditions are disturbed. 4.2.3.2 The Owner and Contractor will promptly investigate such conditions and, if they differ materially and cause an increase or decrease in the Contractor's cost of,or time required for, performance of any part of the Work, Contractor will recommend an equitable adjustment in the Contract Sum or Contract Time, or both. If the Owner determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Owner shall so notify the Contractor in writing, stating the reasons. Claims by the Contractor in opposition to such determination must be made within twenty-one(21)days after the date of the Owner's decision. 4.2.3.3 If the conditions encountered are materially different, the Contract Sum and Contract Time shall be equitably adjusted, but if the Owner and Contractor cannot agree on an adjustment in the Contract Sum or Contract Time,the adjustment shall be subject to further proceedings pursuant to Paragraph 4.4. 4.2.3.4 Nothing in this paragraph shall relieve the Contactor of its obligation to adequately and sufficiently investigate, research, and examine the site, the site survey, topographical information, and the geotechnical information available whether included by reference or fully incorporated in the Contract Documents. 4.2.4. Claims for Additional Cost. 4.2.4.1 If the Contractor wishes to make Claim for an increase in the Contract Sum, written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Paragraph 10.6. General Conditions of the Construction Contract—Bogert Pavilion Project Page 22 of 57 4.2.4.2 If the Contractor believes additional cost is involved for reasons including but not limited to: (a) an order by the Owner to stop the Work solely for the Owner's convenience or where the Contractor was not at least partially at fault; (b) a written order for a minor change in the Work issued by the Owner; (c) failure of payment by the Owner per the terms of the Contract; (d) termination of the Contract by the Owner;or, (e)other reasonable grounds,Claim must be filed in accordance with Paragraph 4.3. 4.2.5. Claims for Additional Time 4.3.5.1. If the Contractor wishes to make Claim for an increase in the Contract Time, written notice as specified in these General Conditions shall be provided along with the notarized certification. The Contractor's Claim shall include an estimate of cost and of probable effect of delay on progress of the Work. In the case of a continuing delay for the same event or cause only one Claim is necessary. However, separate and distinct written notice is required for each separate event. 4.3.5.2. Weather Delays: 4.2.5.2.1 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, could not have been reasonably anticipated, and had an adverse effect on the scheduled construction activities. 4.2.5.2.2 Inclement or adverse weather shall not be a prima facie reason for the granting of an extension of time, and the Contractor shall make every effort to continue work under prevailing conditions. The Owner may grant an extension of time if an unavoidable delay occurs as a result of inclement/severe/adverse weather and such shall then be classified as a "Delay Day". Any and all delay days granted by the Owner are and shall be non-compensable in any manner or form. The Contractor shall comply with the notice requirements concerning instances of inclement/severe/adverse weather before the Owner will consider a time extension. Each day of inclement/severe/adverse weather shall be considered a separate instance or event and as such, shall be subject to the notice requirements. 4.2.5.2.3 An"inclement","severe",or"adverse"weather delay day is defined as a day on which the Contractor is prevented by weather or conditions caused by weather resulting immediately there from, which directly impact the current controlling critical-path operation or operations, and which prevent the Contractor from proceeding with at least 75% of the normal labor and equipment force engaged on such critical path operation or operations for at least 60% of the total daily time being currently spent on the controlling operation or operations. 4.2.5.2.4 The Contractor shall consider normal/typical/seasonal weather days and conditions caused by normal/typical/seasonal weather days for the location of the Work in the planning and scheduling of the Work to ensure completion within the Contract Time. No time extensions will be granted for the Contractor's failure to consider and account for such weather days and conditions caused by such weather for the Contract Time in which the Work is to be accomplished. 4.2.5.2.5 A"normal", "typical", or"seasonal"weather day shall be defined as weather that can be reasonably anticipated to occur at the location of the Work for each particular month involved in the Contract Time. Each month involved shall not be considered individually as it relates to claims for additional time due to inclement/adverse/severe weather but shall consider the entire Contract Time as it compares to normal/typical/seasonal weather that is reasonably anticipated to occur. Normal/typical/seasonal weather General Conditions of the Construction Contract—Bogert Pavilion Project Page 23 of 57 days shall be based upon U.S. National Weather Service climatic data for the location of the Work or the nearest location where such data is available. 4.2.5.2.6 The Contractor is solely responsible to document, prepare and present all data and justification for claiming a weather delay day. Any and all claims for weather delay days shall be tied directly to the current critical-path operation or operations on the day of the instance or event which shall be delineated and described on the Critical- Path Schedule and shall be provided with any and all claims. The Contractor is solely responsible to indicate and document why the weather delay day(s) claimed are beyond those weather days which are reasonably anticipated to occur for the Contract Time. Incomplete or inaccurate claims, as determined by the Owner, may be returned without consideration or comment. 4.2.5.3 Where the Contractor is prevented from completing any part of the Work with specified durations or phases due to delay beyond the control of both the Owner and the Contractor, an extension of the contract time or phase duration in an equal amount to the time lost due to such delay shall be the Contractor's sole and exclusive remedy for such delay. 4.2.5.4 Delays attributable to and/or within the control of subcontractors and suppliers are deemed to be within the control of the Contractor. 4.2.5.5 In no event shall the Owner be liable to the Contractor, any subcontractor, any supplier, Contractor's surety, or any other person or organization, for damages or costs arising out of or resulting from: (1) delays caused by or within the control of the Contractor which include but are not limited to labor issues or labor strikes on the Project, federal, state, or local jurisdiction enforcement actions related directly to the Contractor's Work(e.g. safety or code violations, etc.); or, (2) delays beyond the control of both parties including but not limited to fires, floods, earthquakes, abnormal weather conditions, acts of God, nationwide material shortages, actions or inaction by utility owners, emergency declarations by federal, state, or local officials enacted in the immediate vicinity of the project. 4.2.6. Claims for Consequential Damages. 4.2.6.1 The Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract. This mutual waiver includes: 4.2.6.1.1 damages incurred by the Owner for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and, 4.2.6.1.2 damages incurred by the Contractor for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, income, and for loss of profit. 4.2.6.2 This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance with Article 14. Nothing contained in this waiver of consequential damages shall be deemed to preclude an award of liquidated or actual damages, when applicable, in accordance with the requirements of the Contract Documents. 4.3. RESOLUTION OF CLAIMS, DISPUTES,AND CONTROVERSIES 4.3.1. Either party may submit a Claim to the other party in accordance with the Contract. After submission of the Claim, the parties will attempt in good faith to resolve the Claim through negotiation. General Conditions of the Construction Contract—Bogert Pavilion Project Page 24 of 57 4.3.2. Any Claim arising out of or related to the Contract, except those already waived in Subparagraphs 4.3.6, 7.2.6, 7.3.8, 9.10.4 and 9.10.5 shall be subject to mediation or the institution of legal or equitable proceedings. Claims waived in Subparagraphs 4.3.6, 7.2.6, 7.3.8, 9.10.4, and 9.10.5 are deemed settled, resolved, and completed. 4.3.3. A Claim subject to or related to liens or bonds shall be governed by applicable law regarding notices, filing deadlines, and resolution of such Claim prior to any resolution of such Claim by mediation, or by arbitration, except for claims made by the Owner against the Contractor's bonds. 4.3.4. Pending final resolution of a Claim including mediation, arbitration (if mutually agreed to by the Parties), or court proceedings, unless otherwise mutually agreed in writing, the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract on Work or amounts not in dispute. 4.4. MEDIATION 4.4.1. Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived as provided for in Subparagraphs 4.3.6, 7.2.6, 7.3.8, 9.10.4 and 9.10.5 shall, thirty(30)days after submission of the Claim to the other party and the party's inability to resolve the claim through good faith negotiations, be subject to mediation as a condition precedent to the institution of legal or equitable proceedings by either party. 4.4.2. The parties shall endeavor to resolve their Claims by mediation administered by a Dispute Resolution Board established pursuant to the Dispute Resolution Board Foundation's Practice and Procedural Manual. The parties must enter into a separate agreement establishing, among others, the scope of work of the DRB, the responsibilities of the parties, the time for completion of the DRB's process, payment to DRB members, and whether the decision or findings of the DRB will be binding or admissible in other proceedings. The parties may, by mutual agreement, submit to mediation administered by a neutral third party mediator in accordance with American Arbitration Association procedures in effect on the date the Claim is made in lieu of a DRB. 4.4.3. The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. 4.5. ARBITRATION 4.5.1. Any controversy or Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived as provided for in Subparagraphs 4.3.6,7.2.6,7.3.8,9.10.4 and 9.10.5, may, thirty(30) days after submission of the Claim to the other party, be submitted to arbitration provided both parties mutually agree in writing to submit the Claim to arbitration. Prior to arbitration, the parties shall endeavor to resolve disputes by mediation in accordance with the provisions of Paragraph 4.5. 4.5.2. In the event the parties agree to utilize an arbitration process, it shall be conducted in accordance with the Montana Uniform Arbitration Act(MUAA). To the extent it does not conflict with the MUAA, the Construction Industry Arbitration Rules of the American Arbitration Association shall apply except as modified herein. The parties to the arbitration shall bear their own costs and expenses for participating in the arbitration. Costs of the Arbitration panel shall be borne equally between the parties except those costs awarded by the Arbitration panel (including costs for the arbitration itself). 4.5.3. Prior to the arbitration hearing all parties to the arbitration may conduct discovery subject to the provisions of Montana Rules of Civil Procedure. The arbitration panel may award actual damages General Conditions of the Construction Contract—Bogert Pavilion Project Page 25 of 57 incurred if a party fails to provide full disclosure under any discovery request. If a party claims a right of information privilege protected by law, the party must submit that claim to the arbitration panel for a ruling, before failing to provide information requested under discovery or the arbitration panel may award actual damages. 4.5.4. The venue for all arbitration proceedings shall be the seat of the county in which the work occurs or the Eighteenth Judicial District, Gallatin County, as determined solely by the Owner. Arbitration shall be conducted by a panel comprised of three members with one selected by the Contractor, one selected by the Owner, and one selected by mutual agreement of the Owner and the Contractor. 4.5.5. A request for arbitration shall be made within the time limits specified in Subparagraphs 4.4.5. In no event shall it be made after the date when institution of legal or equitable proceedings based on such Claim would be barred by the applicable statute of limitations as determined pursuant to Paragraph 13.7. 4.5.6. Limitation on Consolidation or Joinder. No arbitration shall include, by consolidation or joinder or in any other manner, parties other than the Owner, Contractor, a separate contractor as described in Article 6 and other persons substantially involved in a common question of fact or law whose presence is required if complete relief is to be accorded in arbitration. No person or entity other than the Owner,Contractor,or a separate contractor as described in Article 6 shall be included as an original third party or additional third party to an arbitration whose interest or responsibility is insubstantial. The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by parties to the Agreement shall be specifically enforceable under applicable law in any court having jurisdiction thereof. 4.5.7. Claims and Timely Assertion of Claims. The party filing a request for arbitration must assert in the request all Claims then known to that party on which arbitration is permitted to be demanded. 4.5.8. Judgment on Final Award. The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. The parties agree that the arbitrator(s) shall have authority to award to either party some or all of the costs and expenses involved, including attorney's fees. 5. ARTICLE 5—SUBCONTRACTORS 6.1. DEFINITION 5.1.1. A Subcontractor is a person or entity who has a direct or indirect contract at any tier or level with the Contractor or any Subcontractor to the Contractor to perform a portion of the Work at the site. The term"Subcontractor"is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. 5.2. AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK 5.2.1. Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as practicable after award of the Contract and in no instance later than thirty (30) days after award of the Contract, shall furnish in writing to the Owner the names of persons or entities (including those who are to furnish materials or equipment fabricated to a special design) proposed for each principal portion of the Work. The Owner will promptly reply to the Contractor in writing stating whether or not the Owner, after due investigation, has reasonable objection to any such proposed person or entity. 5.2.2. The Contractor shall not contract with a proposed person or entity to which the Owner has General Conditions of the Construction Contract—Bogert Pavilion Project Page 26 of 57 made reasonable and timely objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection. 5.2.3. If the Owner has reasonable objection to a person or entity proposed by the Contractor, the Contractor shall propose another to whom the Owner has no reasonable objection. If the proposed but rejected Subcontractor was reasonably capable of performing the Work,the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the substitute Subcontractor's Work. However, no increase in the Contract Sum or Contract Time shall be allowed for such change unless the Contractor has acted promptly and responsively in submitting names as required. 5.2.4. The Contractor shall not change a Subcontractor, person or entity previously selected if the Owner makes reasonable objection to such substitute. The Contractor shall not change or substitute for a Subcontractor who was required to be listed on the bid without first getting the approval of the Owner. 5.3. SUBCONTRACTUAL RELATIONS 5.3.1. By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents, assumes toward the Owner. Each subcontract agreement shall preserve and protect the rights of the Owner under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow to the Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all rights, remedies and redress against the Contractor that the Contractor, by the Contract Documents, has against the Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub- subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors will similarly make copies of applicable portions of such documents available to their respective proposed Sub-subcontractors. 5.3.2. Upon written request by the Owner, the Contractor shall require its subcontractors to provide to it performance and payment securities for their portion of the Work in the types and form defined in statute (18-2-201 and 18-2-203 MCA)for all sub-contractual agreements. 5.3.3. The Contractor shall prepare a Subcontractors' and Suppliers' chart in a format acceptable to the Owner which lists by name, all contact information,job category, and responsibility the Contractor's Subcontractors(at all tiers or levels)and Suppliers with a pecuniary interest in the Project of greater than $5,000.00. The chart shall be provided to the Owner at the time of the pre-construction conference but no less than thirty(30) days after receiving the Notice to Proceed for construction. 5.3.4. All Contractors and Subcontractors to this contract must comply with all Montana Department of Labor and Industry requirements, regulations, rules, and statutes. 5.3.5. In compliance with state statutes, the Contractor will have the 1% Gross Receipts Tax withheld from all payments. Each"Public Contractor"includes all Subcontractors with contracts greater than $5,000 each. The Contractor and all Subcontractors will withhold said 1% from payments made to all Subcontractors with contracts greater than $5,000.00 and make it payable to the Montana Department of Revenue. The Contractor and all Subcontractors shall also submit documentation of all contracts greater than $5,000.00 to the Montana Department of Revenue on the Department's General Conditions of the Construction Contract—Bogert Pavilion Project Page 27 of 57 prescribed form. 5.4. CONTINGENT ASSIGNMENT OF SUBCONTRACTS 5.4.1. Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner provided that: 5.4.1.1. assignment is effective only after termination of the Contract by the Owner for cause pursuant to Paragraph 14.2 and only for those subcontract agreements which the Owner accepts by notifying the Subcontractor and Contractor in writing; and, 5.4.1.2. assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Contract. 5.4.2. Upon such assignment, if the Work has been suspended for more than thirty (30) days as a result of the Contractor's default, the Subcontractor's compensation shall be equitably adjusted for increases in cost resulting from the suspension. Such adjustment shall be at the expense of the Contractor. 5.4.3. The Contractor shall engage each of its subcontractors and suppliers with written contracts that preserve and protect the rights of the Owner and include the acknowledgement and agreement of each subcontractor and supplier that the Owner is a third-party beneficiary of their sub-contractual and supplier agreements. The Contractor's agreements shall require that in the event of default by the Contractor or termination of the Contractor, and upon request of the Owner, the Contractor's subcontractors and suppliers will perform services for the Owner. 5.4.4. Construction Contractor Registration: All Subcontractors at any tier or level are required to be registered with the Department of Labor and Industry under 39-9-201 and 39-9-204 MCA prior to the Contract being executed by the Owner. Subcontractors shall demonstrate to the Contractor that it has registered or promises that it will register immediately upon notice of award and prior to the commencement of any work. 6. ARTICLE 6—CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 6.1. OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS 6.1.1. The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces, and to award separate contracts in connection with other portions of the Project or other construction or operations on the site under Conditions of the Contract identical or substantially similar to these including those portions related to insurance. If the Contractor claims that delay or additional cost is involved because of such action by the Owner, the Contractor shall make such Claim as provided in Paragraph 4.3. 6.1.2. When separate contracts are awarded for different portions of the Project or other construction or operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Owner-Contractor Agreement. 6.1.3. The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with other separate contractors and the Owner in reviewing their construction schedules when directed to do so. The Contractor shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall then constitute the schedules to be used by the Contractor, separate contractors and the Owner until subsequently revised. General Conditions of the Construction Contract—Bogert Pavilion Project Page 28 of 57 6.1.4. Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations related to the Project with the Owner's own forces, the Owner shall be deemed to be subject to the same obligations and to have the same rights which apply to the Contractor under the Conditions of the Contract, including, without excluding others, those stated in Article 3, this Article 6 and Articles 10, 11 and 12. 6.2. MUTUAL RESPONSIBILITY 6.2.1. The Contractor shall afford the Owner and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the Contractor's construction and operations with theirs as required by the Contract Documents. 6.2.2. If part of the Contractor's Work depends for proper execution or results upon construction or operations by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Owner apparent discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the Contractor so to report shall constitute an acknowledgment that the Owner's or separate contractor's completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable. 6.2.3. The Contractor shall reimburse the Owner for costs the Owner incurs which are payable to a separate contractor because of delays, improperly timed activities or defective construction of the Contractor. The Owner shall be responsible to the Contractor for costs incurred by the Contractor because of a separate contractor's delays, improperly timed activities, damage to the Work or defective construction. 6.2.4. The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the Owner or separate contractors as provided in Subparagraph 10.2.5. 6.2.5. The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Subparagraph 3.14. 6.2.6. If a Subcontractor or separate contractor initiates legal or other proceedings against the Owner on account of damage alleged to have been caused by the Contractor or its employees, agents, or subcontractors, the Owner shall notify the Contractor who shall defend such proceedings at its own expense, and if judgment or award against the Owner arises therefrom, the Contractor shall pay or satisfy it and shall reimburse the Owner for attorneys'fees and court or other costs which the Owner has incurred over and above those paid for directly by the Contractor. 6.3. OWNER'S RIGHT TO CLEAN UP 6.3.1. If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the Owner may clean up and the Owner will determine the responsibility of those involved and allocate the cost accordingly. 7. ARTICLE 7—CHANGES IN THE WORK 7.1. GENERAL 7.1.1. Changes in the Work maybe accomplished after execution of the Contract, and without invalidating the Contract, by Change Order, Construction Change Directive, or order for a minor change in the Work subject to the limitations stated in this Article 7 and elsewhere in the Contract Documents. Minor changes as ordered by the Owner has the definition provided in Paragraph 7.4. General Conditions of the Construction Contract—Bogert Pavilion Project Page 29 of 57 7.1.2. A Change Order shall be based upon agreement between the Owner and Contractor;a Construction Change Directive requires agreement by the Owner and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by the Owner alone. 7.1.3. Changes in the Work shall be performed under applicable provisions of the Contract Documents and the Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction Change Directive, or order for a minor change in the Work. 7.1.4. No act, omission, or course of dealing, shall alter the requirement that Change Orders or Construction Change Directives shall be in writing and signed by the Owner,and that Change Orders and Construction Change Directives are the exclusive method for effecting any adjustment to the Contract. The Contractor understands and agrees that neither the Contract Sum nor the Contract Time can be changed by implication, oral agreement, verbal directive, or unsigned Change Order. 7.2. CHANGE ORDERS 7.2.1. A Change Order is a written instrument prepared by the Contractor and signed by the Owner and Contractor, stating their agreement upon all of the following: 7.2.1.1. change in the Work; 7.2.1.2. the amount of the adjustment, if any, in the Contract Sum; and, 7.2.1.3. the extent of the adjustment, if any, in the Contract Time. 7.2.2. The cost or credit to the Owner resulting from a change in the Work shall be determined as follows: 7.2.2.1. per the limitations of this Subparagraph, plus a maximum total combined allowance of 5.0% for overhead and profit for the GCCM. The allowance for overhead and for profit are limited to the percentage as specified herein unless they are determined to be unreasonable by the Owner (not the Contractor) per Subparagraph 7.3.9 for each Change Order or Construction Change Directive; or, 7.2.2.2. by one of the methods in Subparagraph 7.3.4, or as determined by the Owner per Subparagraph 7.3.9, plus a maximum total combined allowance of 5.0%for overhead and profit for the GC/CM. Subcontractors shall be limited to a maximum total combined allowance of 15.0% for overhead and profit. The allowances for overhead and for profit are limited to the percentages as specified herein unless they are determined to be unreasonable by the Owner (not the Contractor) per Subparagraph 7.3.9 for each Change Order or Construction Change Directive. 7.2.2.3. The Contractor's proposed increase or decrease in cost shall be limited to costs listed in Subparagraph 7.3.9.1 through 7.3.9.5. 7.2.3. The Contractor shall not submit any Change Order, response to requested cost proposals, or requested changes which are incomplete and do not contain full breakdown and supporting documentation in the following three areas: 7.2.3.1. Itemized direct costs(only those listed in Subparagraph 7.3.9.1 through 7.3.9.5 are allowable); 7.2.3.2. Itemized indirect costs (limited as a percentage on each Change Order per Supplementary General Conditions, Paragraph 7.2.2); and General Conditions of the Construction Contract—Bogert Pavilion Project Page 30 of 57 7.2.3.3. Itemized consequential items (e.g. time extensions, credits, logic, reasonableness, impacts, disruptions, dilution). 7.2.3.4. The Contractor shall provide a complete description detailing and summarizing all work involved. 7.2.4. Any Change Order, responses to requested proposals, or requested changes submitted by the Contractor which, in the opinion of the Owner, are incomplete, may be rejected and returned to the Contractor without comment. It is the responsibility of and incumbent upon the Contractor to ensure and confirm that all Change Orders, responses to requested proposals, or requested changes are complete prior to submission. 7.2.5. Overhead, applicable to all areas and sections of the Contract Documents, means"Indirect Costs" as referenced in Subparagraph 7.2.3.2. Indirect costs are inclusive of,but not limited to,the following: home office overhead; off-site supervision, except as directly related to the work; home office project management, except as directly related to the work; effects of disruption and dilution of management and supervision off-site; time delays; coordination of trades; postage and shipping; and, effective increase in guarantee and warranty durations. Indirect costs applicable to any and all changes in the work, either through Change Order or Construction Change Directive, are limited to the percentage allowance for overhead in Subparagraph 7.2.2. 7.2.6. By signature on any Change Order, the Contractor certifies that the signed Change Order is complete and includes all direct costs, indirect costs and consequential items (including additional time, if any) and is free and clear of all claims or disputes (including, but not limited to, claims for additional costs, additional time, disruptions, and/or impacts) in favor of the Contractor, subcontractors, material suppliers, or other persons or entities concerning the signed change order and on all previously contracted Work and does release the Owner from such claims or demands. 7.2.7. Any and all changes or adjustments to the Contract Time requested or claimed by the Contractor as a result of a Change Order shall require documentation and justification for the adjustment by a Critical Path Method analysis of the Contractor's most recent Critical Path Schedule in use prior to the change. Changes which affect or concern activities containing float or slack time (i.e. not on the critical path) and which can be accomplished within such float or slack time, shall not result in an increase in the Contract Time. 7.2.8. Supervision means on-site, field supervision and not home office overhead, off-site management or off-site supervision, except as directly related to the work. 7.2.9. Labor means those persons engaged in construction occupations as defined in Montana Prevailing Wage Rates for Building Construction or Heavy/Highway as bound in the Contract Documents and does not include design, engineering, superintendence, management, on-site field supervision, home office or other off-site management, off-site supervision, office or clerical work. 7.2.10. No such change is effective until the Owner and Contractor sign the Change Order. 7.3. CONSTRUCTION CHANGE DIRECTIVES 7.3.1. A Construction Change Directive is a written order prepared and signed by the Owner, directing a change in the Work prior to agreement on adjustment, if any, in the Contract Sum or Contract Time, or both. The Owner may by Construction Change Directive, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being adjusted accordingly. 7.3.2. Any and all changes or adjustments to the Contract Time requested or claimed by the Contractor as a result of a Construction Change Directive, shall require documentation and justification for the adjustment by a Critical Path Method analysis of the Contractor's most recent Critical Path General Conditions of the Construction Contract—Bogert Pavilion Project Page 31 of 57 Schedule in use prior to the change. Changes that affect or concern activities containing float or slack time (i.e. not on the critical path) and which can be accomplished within such float or slack time shall not result in an increase in the Contract Time. 7.3.3. A Construction Change Directive shall be used in the absence of agreement on the terms of a Change Order. 7.3.4. If the Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment shall be based on one of the following methods: 7.3.4.1. mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; 7.3.4.2. unit prices stated in the Contract Documents or subsequently agreed upon; 7.3.4.3. cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; 7.3.4.4. by actual cost as shown by the Contractor's and Subcontractor's itemized invoices; or 7.3.4.5. as provided in Subparagraph 7.3.9. 7.3.5. Costs shall be limited to the following: cost of materials, including cost of delivery; cost of labor, including social security, old age and unemployment insurance and fringe benefits under collective bargaining agreements; workers' compensation insurance; bond premiums; and rental value of power tools and equipment. 7.3.6. Overhead and profit allowances shall be limited on all Construction Change Directives to those identified in 7.2.2. 7.3.7. Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the change in the Work involved and advise the Owner of the Contractor's agreement or disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. 7.3.8. A Construction Change Directive signed by the Contractor indicates the agreement of the Contractor therewith, including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective immediately and shall be recorded as a Change Order. 7.3.9. If the Contractor does not respond or disagrees with the method for adjustment in the Contract Sum in writing within seven (7) days, the method and the adjustment made shall be determined by the Owner on the basis of reasonable expenditures and/or savings of those performing the Work directly attributable to the change including, in the case of an increase in the Contract Sum, plus an allowance for overhead and profit as listed under Subparagraph 7.2.2. In such case, and also under Clause 7.3.4.3, the Contractor shall keep and present, in such form as the Architect may prescribe, an itemized accounting together with appropriate supporting data. Unless otherwise provided in the Contract Documents, costs for the purposes of this Subparagraph 7.3.9 shall be limited to the following: 7.3.9.1. costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers'compensation insurance as determined by the Prevailing Wage Schedules referenced in the Contract Documents; 7.3.9.2. costs of materials, supplies and equipment, including cost of transportation, whether incorporated or consumed; General Conditions of the Construction Contract—Bogert Pavilion Project Page 32 of 57 7.3.9.3. rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others; 7.3.9.4. costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes related to the Work; and, 7.3.9.5. additional costs of field supervision and field office personnel directly attributable to the change. 7.3.10. The amount of credit to be allowed by the Contractor to the Owner for a deletion or change which results in a net decrease in the Contract Sum shall be actual net cost. When both additions and credits covering related Work or substitutions are involved in a change, the allowance for overhead and profit shall be figured on the basis of net increase, if any, with respect to that change. 7.3.11. Pending final determination of the total cost of a Construction Change Directive to the Owner, amounts not in dispute for such changes in the Work shall be included in Applications for Payment accompanied by a Change Order indicating the parties'agreement with part or all of such costs. For any portion of such cost that remains in dispute, the Owner will make an interim determination for purposes of monthly certification for payment for those costs.That determination of cost shall adjust the Contract Sum on the same basis as a Change Order, subject to the right of either party to disagree and assert a claim in accordance with Article 4. 7.3.12. When the Owner and Contractor reach agreement upon the adjustments, such agreement shall be effective immediately and shall be recorded by preparation and execution of an appropriate Change Order. Change Orders may be issued for all or any part of a Construction Change Directive. 7.4. MINOR CHANGES IN THE WORK 7.4.1. The Owner may order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order and shall be binding on the Owner and Contractor. The Contractor shall carry out such written orders promptly. 8. ARTICLE 8—TIME 8.1. DEFINITIONS 8.1.1. Time is of the essence in performance, coordination, and completion of the Work contemplated herein. The Owner may suffer damages if the Work is not completed as specified herein. When any duration or time period is referred to in the Contract Documents by days, the first day shall be determined as the day following the current day of any event or notice starting a specified duration. 8.1.2. Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work. 8.1.3. The date of commencement of the Work is the date established in the NOTICE TO PROCEED AS ISSUED BY THE OWNER. 8.1.4. The date the Contractor reaches Substantial Completion is the date certified by the Owner in accordance with Paragraph 9.8. 8.1.5. The term "day" as used in the Contract Documents shall mean calendar day unless otherwise specifically defined. General Conditions of the Construction Contract—Bogert Pavilion Project Page 33 of 57 8.1.6. Liquidated Damages. The GC/CM acknowledges that the Owner will sustain damages as a result of the GC/CM's failure to substantially complete the Project in accordance with the Contract Documents. These damages may include, but are not limited to delays in completion, use of the Project, engineering costs to complete the Project, and costs associated with Contract administration and use of temporary facilities. The GC/CM and the Owner acknowledge that the actual amount of damages would be difficult to determine accurately and agree that that the following liquidated damages figure represents a reasonable estimate of such damages and is not a penalty: 8.1.6.1 The Contractor and his surety shall be liable for and shall pay to the Owner the sums hereinafter stipulated as liquidated damages for each calendar day of delay until the Work is substantially complete: One Thousand Dollars ($1000.00). 8.1.7. The Contractor shall not be charged liquidated or actual damages when delay in completion of the Work is due to: 8.1.7.1. Any preference, priority or allocation order issued by the government; 8.1.7.2. Unforeseeable cause beyond the control and without the fault or negligence of the Contractor, such as acts of God or of the public enemy, fires, floods, epidemics, quarantine restrictions, freight embargoes, and unusually severe weather. All such occurrences resulting in delay must be documented and approved by Change Order; or, 8.1.7.3.Any delays of Subcontractors or suppliers occasioned by any of the causes specified in 8.1.7.1 and 8.1.7.2 of this article. 8.1.8. The Contractor is completely obligated and responsible to provide written notice of each day of delay as provided for in Paragraph 4.3. If delays to the Project are encountered for any reason, the GC/CM and Owner shall collaborate and mutually take reasonable steps to mitigate the effects of such delays, regardless of cause or fault. In order to mitigate the effects of delays, it is incumbent upon and the responsibility of the GC/CM to provide notification of delays as provided in Paragraph 3.10.8. The Owner may require the GC/CM to accelerate its Work or Services by increasing workers and equipment,working overtime, or scheduling additional shifts. If the GC/CM is behind schedule for reasons other than delays beyond the control of both parties as provided in Paragraph 4.5.3.5 or compensable delays, the acceleration costs will be borne by the GC/CM, who may allocate Contractor's Contingency in payment of such costs. If the GC/CM is directed to accelerate to overcome an Owner-caused delay that would otherwise entitle the GC/CM to an extension of the Contract Time and/or additional compensation, then the corresponding cost increase of acceleration shall be attributable to the Owner. 8.1.9. Contract Time. All work shall reach Substantial Completion (or Final Acceptance) by the date fixed in the Guaranteed Maximum Price Amendment. 8.2. PROGRESS AND COMPLETION 8.2.1. Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Contract the Contractor confirms that the Contract Time is a reasonable period for performing the Work. 8.2.2. The Contractor shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely commence operations on the site or elsewhere prior to the date on the Notice to Proceed and in no case prior to the effective date of insurance required by Article 11 to be furnished by the Contractor. The date of commencement of the Work shall not be changed by the effective date of such insurance. General Conditions of the Construction Contract—Bogert Pavilion Project Page 34 of 57 8.2.3. The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial Completion within the Contract Time. 8.2.4. If the Contractor falls behind the latest construction schedule by more than fourteen (14) days through its own actions or inaction, neglect, inexperience, lack of oversight and management of the Work including that of any Subcontractors, written notice to the Owner shall be provided within three (3) days with explanation of how the Contractor intends to get back on schedule. Response to getting back on schedule consists of providing a sufficient number of qualified workers and/or proper materials or an acceptably reorganized schedule to regain the lost time in a manner acceptable to the Owner. 8.2.5. Completion of the work within the stated time and/or by the date stated on the Notice to Proceed is of the essence of this Contract and failure to complete, without approved time extension, may be considered default of the Contract. At the time for completion as stated on the Notice to Proceed or as extended by approved change order, if the work is not substantially complete, the Owner may notify the Contractor and the Contractor's surety company in writing of the recourse the Owner intends to take, within the Contract, to assess liquidated damages and/or cause the Work to be completed. 8.3. DELAYS AND EXTENSIONS OF TIME 8.3.1. If the Contractor is delayed at any time in the commencement or progress of the Work by an act or neglect of the Owner, or of an employee of either, or of a separate contractor employed by the Owner, or by changes ordered in the Work, or by fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor's control, or by delay authorized by the Owner pending mediation or other alternative dispute resolution ("Excusable Delay"), then the Contract Time shall be extended by Change Order for such reasonable time as the Owner and Contractor may agree. 8.3.2. Claims relating to time shall be made in accordance with applicable provisions of Paragraph 4.3. 8.3.3. This Paragraph 8.3 does not preclude recovery of damages for delay by either party under other provisions of the Contract Documents. 9. ARTICLE 9—PAYMENTS AND COMPLETION 9.1. CONTRACT SUM 9.1.1. The Contract Sum is stated in the Contract and, including authorized adjustments, is the total amount payable by the Owner to the Contractor for performance of the Work under the Contract Documents. 9.2. SCHEDULE OF VALUES 9.2.1. Before the first Application for Payment, the Contractor shall submit to the Owner a schedule of values allocating the entire Contract Sum to various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as the Owner may require.This schedule,unless objected to by the Owner, shall be used as a basis for reviewing the Contractor's Applications for Payment. 9.3. APPLICATIONS FOR PAYMENT 9.3.1. The Contractor shall submit to the Owner itemized Applications for Payment for Work completed on a monthly basis in accordance with a schedule approved by the Owner. Each Application for Payment must be consistent with the Schedule of Values. Such application shall be signed and supported by such data substantiating the Contractor's right to payment as the Owner may General Conditions of the Construction Contract—Bogert Pavilion Project Page 35 of 57 require, such as copies of requisitions from Subcontractors and material suppliers, and reflecting retainage if provided for in the Contract Documents. 9.3.2. The form of Application for Payment must be AIA Document G702, Application and Certificate for Payment, supported by AIA Document G703, Continuation Sheet (latest edition), or such other form as may be mutually agreed to by the Owner and Contractor. The application must be notarized and supported by sufficient data to demonstrate the Contractor's right to payment and compliance with the payment provisions of the Contract to the satisfaction of the Owner, such as copies of requisitions from Subcontractors and material suppliers, partial lien waivers, releases and other documents. Each Application for Payment must reflect approved Contract Modifications and the Contract retainage provided for in the Contract Documents. 9.3.3. As provided in Subparagraph 7.3.11, such applications may include requests for payment on account of changes in the Work which have been properly authorized by Construction Change Directives, or by interim determinations of the Owner, but not yet included in Change Orders. 9.3.4. Applications for Payment shall not include requests for payment for portions of the Work for which the Contractor does not intend to pay to a Subcontractor or material supplier. 9.3.5. Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by the Owner, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Contractor with procedures satisfactory to the Owner to establish the Owner's title to such materials and equipment or otherwise protect the Owner's interest, and shall include the costs of applicable insurance, storage and transportation to the site for such materials and equipment stored off the site. 9.3.6. The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall, to the best of the Contractor's knowledge, information and belief, be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials and equipment relating to the Work. 9.3.7. Until the Work is complete, the Owner will pay 95% of the amount due the Contractor on account of progress payments. For purposes of this section, "complete" shall mean (a) the Contractor has fully performed the Contract; (b)the Contractor has completed all Punch List items to the satisfaction of the Owner; (c)the Contractor has delivered to the Owner all Project close-out documents in duplicate; and (d)the applicable governmental authorities have issued to the Owner the final use and occupancy permit for the Project. 9.3.7.1. If the Work and its progress are not in accordance with all or any part, piece, or portion of the Contract Documents,the Owner may, at its sole discretion and without claim by the Contractor, increase the amount held as retainage to whatever level deemed necessary to effectuate performance and progress of the Work, for anticipated repairs,warranties or completion of the Work by the Contractor or through the letting of other contracts. The Contractor will not be entitled to additional costs, expenses, fees, time, and such like, in the event the Owner increases the amount held as retainage due to non-compliance and/or non-performance with all or any part, piece, or portion of the Contract Documents. 9.3.7.2. Prior to the first Application for Payment, the Contractor shall submit the following information General Conditions of the Construction Contract—Bogert Pavilion Project Page 36 of 57 on the appropriate forms: 9.3.7.2.1. Schedule of Values: This form shall contain a breakdown of the Bid Packages and/or other costs associated with the various portions of the Work and shall be the basis for the progress payments to the Contractor. 9.3.7.2.2. Project/Progress Schedule: If no Schedule(or revised Schedule) is provided with each and every Application for Payment, the Owner may return the pay request, or hold it, and may choose not pay for any portion of the Work until the appropriate Schedule, indicating all changes, revisions and updates, is provided. No claim for additional costs or interests will be made by the Contractor or any subcontractor on account of holding or non-payment of the Periodic Estimate for Partial Payment request. 9.3.7.3. The Contractor may submit obligations/securities in a form specified in 18-1-301 Montana Code Annotated (MCA) to be held by a Financial Institution in lieu of retainage by the Owner. The Owner will establish the amount that would otherwise be held as retainage. Should the Contractor choose to submit obligations/securities in lieu of retainage, the Owner will require the Financial Institution to execute the Owner's Account Agreement for Deposit of Obligations Other Than Retainage on such form as shall be acceptable to the City Attorney prior to submission of any obligations/securities in accordance with 18-1-302 MCA. The Contractor must extend the opportunity to participate in all obligations/securities in lieu of retainage on a pro rata basis to all subcontractors involved in the project and shall be solely responsible for the management and administration of same. The Owner assumes no liability or responsibility from or to the Contractor or Subcontractors regarding the latter's participation. 9.3.7.4. In the Application for Payment, the Contractor must certify in writing that, in accordance with contractual arrangements, Subcontractors and suppliers (a) have been paid from the proceeds of previous progress payments; and (b)will be paid in a timely manner from the proceeds of the progress payment currently due. In the event the Contractor has not paid or does not pay as certified, such failure constitutes a ground for termination under Section 14.2, unless Owner agrees in Owner's sole discretion that Contractor has a reasonable basis for not having made the payment. 9.4. OWNER'S APPROVAL OF APPLICATIONS FOR PAYMENT 9.4.1. The Owner will, within seven (7) days after receipt of the Contractor's Application for Payment, either approve the Application for Payment for such amount as the Owner determines is properly due, or notify the Contractor in writing of the Owner's reasons for withholding certification in whole or in part as provided in Subparagraph 9.5.1. 9.5. DECISIONS TO WITHHOLD APPROVAL OF APPLICATION FOR PAYMENT 9.5.1. The Owner may reject an Application for Payment in whole or in part, to the extent reasonably necessary to protect the Owner, or, because of subsequently discovered evidence, may nullify the whole or a part of an approval previously issued, to such extent as may be necessary to protect the Owner from loss for which the Contractor is responsible, including loss resulting from acts and omissions described in Subparagraph 3.3.4, because of: 9.5.1.1. defective Work not remedied; 9.5.1.2. third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the Owner is provided by the Contractor; 9.5.1.3. failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment; General Conditions of the Construction Contract—Bogert Pavilion Project Page 37 of 57 9.5.1.4. reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; 9.5.1.5. damage to the Owner or another contractor; 9.5.1.6. reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or, 9.5.1.7. failure to carry out the Work in accordance with the Contract Documents. 9.5.2. When the above reasons for withholding approval are removed, payment approval will be given for amounts previously withheld. 9.5.3. If the Owner withholds payment approval under Section 9.5.1.3, the Owner may, at its sole option, issue joint checks to the Contractor and to any Subcontractor or material or equipment suppliers to whom the Contractor failed to make payment for Work properly performed or material or equipment suitably delivered. If the Owner makes payments by joint check, the Owner shall notify the Contractor and the Contractor will reflect such payment on the next Application for Payment. 9.6. PROGRESS PAYMENTS 9.6.1. After the Owner has approved an Application for Payment, the Owner shall make payment in the manner and within the time provided in the Contract Documents. 9.6.2. The Contractor shall promptly pay each Subcontractor no later than seven (7) days after receipt of payment from the Owner the amount to which said Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of such Subcontractor's portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub-subcontractors in a similar manner. 9.6.3. The Contractor is prohibited from holding higher amounts in retainage on any Subcontractor than the Owner is holding from the Contractor. 9.6.4. The Owner will, on request, furnish to a Subcontractor, if practicable, information regarding percentages of completion or amounts applied for by the Contractor and action taken thereon by the Owner on account of portions of the Work done by such Subcontractor. 9.6.5. The Owner shall have no obligation to pay, or to see to the payment of, money to a Subcontractor except as may otherwise be required by law. 9.6.6. Contractor payment to material suppliers shall be treated in a manner similar to that provided in Subparagraphs 9.6.2, 9.6.3, 9.6.4, and 9.6.5. 9.6.7. A progress payment, or partial or entire use or occupancy of the Project by the Owner shall not constitute acceptance of Work not in accordance with the Contract Documents. 9.6.8. A one percent (1%) Montana Gross Receipts Tax will be withheld from all payments to the Contractor in accordance with 15-50-205, et seq., MCA. The Contractor shall be responsible for withholding the 1% gross receipts tax from payments made by the Owner to the Contractor for Work performed by Subcontractors and the Contractor will file and transmit the necessary forms to the Montana Department of Revenue attendant to such subcontracts within ten (10) days of the award of the subcontract. All amounts withheld for the 1%gross receipts tax are in addition to any General Conditions of the Construction Contract—Bogert Pavilion Project Page 38 of 57 retainage amounts otherwise authorized under the Agreement. 9.7. FAILURE OF PAYMENT 9.7.1. If the Owner does not pay the Contractor within thirty (30) days after the Contractor submits an Application for Payment, the Contractor may file a claim in accordance with Section 4.3 of this Contract. 9.8. SUBSTANTIAL COMPLETION 9.8.1. Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use. 9.8.2. When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately, is Substantially Complete, the Contractor shall prepare and submit to the Owner a comprehensive list of items to be completed or corrected ("Punch List") prior to final payment. Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. 9.8.3. In addition to the Punch List, the Contractor must submit the following with its request for a determination of Substantial Completion: a. A use and occupancy permit; b. final test reports as required by the Contract and certificates of inspection and approval required for use and occupancy; c. Fire Inspection or report; d. approvals from, and transfer documents for, all utilities; e. Warranties and Guarantees and provided in this Contract; and f. schedule to complete the Punch List and value of Work not yet complete. 9.8.4. Upon receipt of the Contractor's Punch List,the Owner will make an inspection to determine whether the Work or designated portion thereof is substantially complete. If the Owner's Inspection discloses any item, whether or not included on the Contractor's list, which is not sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work or designated portion thereof for its intended use, the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by the Owner. In such case, the Contractor shall then submit a request for another inspection by the Owner to determine Substantial Completion. 9.8.5. The Contractor shall ensure the project is Substantially Complete prior to requesting any inspection by the Owner so that no more than one (1) inspection is necessary to determine Substantial Completion for all or any portion of the Work. If the Contractor does not perform adequate inspections to develop a comprehensive list as required in Subparagraph 9.8.2 and does not complete or correct such items upon discovery or notification, the Contractor shall be responsible and pay for the costs of the Owner's additional inspections to determine Substantial Completion. Prior to the inspection, the Contractor shall complete the final clean-up of the Project site which, unless otherwise stated in the Contract Documents, shall consist of: 9.8.5.1 Removal of all debris and waste. All construction debris and waste shall be removed from the campus grounds. Use of the Owner trash containers will not be permitted; 9.8.5.2 Removal of all stains, smears, marks of any kind from surfaces including existing surfaces if said damage is the result of the work; and, General Conditions of the Construction Contract—Bogert Pavilion Project Page 39 of 57 9.8.5.3 Removal of all temporary structures and barricades. 9.8.6. When the Owner agrees that the Work or designated portion thereof is Substantially Complete, the Contractor will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion and which shall establish responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to the Work and insurance. After issuance of the Certificate of Substantial Completion, the Contractor shall finish and complete all remaining items within thirty (30) days of the date on the Certificate. The Owner shall identify and fix the time for completion of specific items which may be excluded from the thirty (30) calendar day time limit. Failure to complete any items within the specified time frames may be deemed by the Owner as default of the Contract on the part of the Contractor. 9.8.7. The Certificate of Substantial Completion shall be submitted to the Owner for its written acceptance of responsibilities assigned to Owner and Contractor in such Certificate. Upon such acceptance and consent of surety if there are claims or past payment issues, the Owner shall make payment of retainage applying to such Work or designated portion thereof. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents. 9.8.8. To the extent provided in the Contract Documents or in the Certificate of Substantial Completion, the Owner, upon execution of the Certificate of Substantial Completion or occupation by the Owner of the Work in accordance with Section 9.9, whichever occurs first, will assume responsibility for security, operation, safety, maintenance, heat, utilities, damage to the Work (other than damage caused by the Contractor) and insurance. 9.8.9. Upon execution of the Certificate of Substantial Completion,the Contractor will deliver custody and control of such Work to the Owner. The Owner will thereafter provide the Contractor reasonable access to such Work to permit the Contractor to fulfill the correction, completion and other responsibilities remaining under the Contract and the Certificate of Substantial Completion. 9.8.10. At the time of Substantial Completion, in addition to removing rubbish and leaving the building "broom clean," the Contractor must replace any broken or damaged materials, remove stains, spots, marks and dirt from decorated Work, and comply with such additional requirements, if any, which may be specified in the Contract Documents. 9.9. PARTIAL OCCUPANCY OR USE 9.9.1. The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Contractor, provided such occupancy or use is consented to by the insurer and authorized by public authorities having jurisdiction over the Work.Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage, if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. When the Contractor considers a portion Substantially Complete, the Contractor shall prepare and submit a list to the Owner as provided under Subparagraph 9.8.2. Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the progress of the Work shall be determined by written agreement between the Owner and Contractor. 9.9.2. Immediately prior to such partial occupancy or use, the Owner and Contractor shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. Unless otherwise agreed upon,partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. 9.9.3. Any agreement as to the acceptance of Work not complying with the requirements of the Contract General Conditions of the Construction Contract—Bogert Pavilion Project Page 40 of 57 Documents shall not be valid unless in writing. Unless otherwise agreed upon in writing, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. 9.10. FINAL COMPLETION AND FINAL PAYMENT 9.10.1. When the Contractor has completed or corrected all items on the final Punch List and considers that the Work is complete and ready for final acceptance, the Contractor must give written notice to the Owner and request a final inspection of the Work as provided in Section 9.10.2. The Contractor's notice and request for final inspection must be accompanied by a final Application for Payment and the Submittals required by Section 9.10.3. 9.10.2. Upon receipt of Contractor's written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Owner will promptly make such inspection and, when the Owner concurs that the Work has been fully completed and is acceptable under the Contract Documents, the Contractor will prepare and submit a Certificate of Final Completion to the Owner. The Contractor's notice and request for final inspection constitutes a representation by the Contractor to the Owner that the Work has been completed in accordance with the terms and conditions of the Contract Documents. The Owner will promptly notify the Contractor if the Owner does not concur that the Work is finally complete. In such case, the Contractor must bear the reasonable cost of any additional services of the Owner until the Work is determined to be finally complete. When the Owner concurs the Work has been fully completed, Owner will approve the Contractor's final Application for Payment. 9.10.3. Neither final payment nor any remaining retainage shall become due until the Contractor submits to the Owner: 9.10.3.1 an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied; 9.10.3.2 a release or waiver of all claims except those that are pending. Notwithstanding applicable Montana law, if any liens have been filed Contractor shall release, waive or indemnify Owner therefrom; 9.10.3.3 a certificate evidencing that the Contractor's liability insurance and Performance Bond required by the Contract Documents remain in effect during the two-year correction period following Substantial Completion as set forth in Section 12.2.2.1 and 12.2.2.2, and will not be canceled or allowed to expire until at least thirty (30) days' prior written notice has been given to the Owner; 9.10.3.4 a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents; 9.10.3.5 Consent of Surety Company to Final Payment or other form prescribed by the Owner; and, 9.10.3.6 if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the Owner; 9.10.3.7 a certified building location survey and as-built site plan in the form and number required by the Contract Documents; 9.10.3.8 all warranties and bonds required by the Contract Documents; General Conditions of the Construction Contract—Bogert Pavilion Project Page 41 of 57 9.10.3.9 Record Documents as provided in Section 3.11; 9.10.3.10 Attic stock items as required by the Contract Documents; and 9.10.3.11 documentation of approval by all authorities having jurisdiction that all necessary permits and licenses have been issued in the name of the Owner as to allow closeout and satisfaction of all requirements including the submission of acceptable as-built drawings and other required documents. 9.10.3.12 final, approved operating and maintenance manuals; and 9.10.3.13 all documents and verification of training required in accordance with any Commissioning Plan. 9.10.4. The Contractor and his surety accepts and assumes responsibility, liability, and costs for and agrees to defend and hold harmless the Owner for and against any and all actions as a result of the Owner making final payment. 9.10.5. By submitting any Application for Payment to the Owner the Contractor and his surety certify and declare that all bills for materials, supplies, utilities and for all other things furnished or caused to be furnished by the Contractor and all Subcontractors and used in the execution of the Contract will be fully paid upon receipt of Final Payment and that there are no unpaid obligations, liens, claims, security interests, encumbrances, liabilities and/or demands of State Agencies, subcontractors, suppliers, mechanics, laborers or any others resulting from or arising out of any work done, caused to be done or ordered to be done by the Contractor under the Contract. 9.10.6. The date of Final Payment by the Owner shall constitute Final Acceptance of the Work. The determining date for the expiration of the warranty period shall be as specified in Paragraphs 3.5 and 12.2.2. 9.10.7. If, after Substantial Completion of the Work,final completion thereof is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion, the Owner shall, upon application by the Contractor, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Owner. Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 9.10.8. Acceptance of final payment by the Contractor, a Subcontractor, or material supplier, shall constitute a waiver of any and all obligations, liens, claims, security interests, encumbrances and/or liabilities against the Owner except those previously made in writing per the requirements of Paragraph 4.3 and as yet unsettled at the time of submission of the final Application for Payment. 9.10.9. The Owner's issuance of Final Payment does not constitute a waiver or release of any kind regarding any past, current, or future claim the Owner may have against the Contractor and/or the surety. 10. ARTICLE 10—PROTECTION OF PERSONS AND PROPERTY 10.1. SAFETY PRECAUTIONS AND PROGRAMS The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract. The Contractor shall maintain on site a material safety data sheet on all chemicals and potentially hazardous materials brought on site by the Contractor or any subcontractor, supplier, or employee or agent of a subcontractor or supplier, including but not limited to paints, thinners, glues, mastics and solvents. The safety data sheets will be provided to the General Conditions of the Construction Contract—Bogert Pavilion Project Page 42 of 57 Owner upon Final Completion. 10.2 SAFETY OF PERSONS AND PROPERTY 10.2.1 The Contractor must take reasonable precautions for the safety of, and must provide reasonable protection to prevent damage, injury or loss to: 10.2.1.1 All persons at the Site and other persons who may be affected by the Work or other operations of the Contractor; 10.2.1.2 the Work and materials and equipment to be incorporated therein or otherwise utilized in the performance of the Contract, whether in storage on or off the Site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub- subcontractors; and 10.2.1.3 other property at the Site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 10.2.2 The Contractor must repair and/or replace that portion of the work and any materials or equipment to be incorporated therein and any tools or equipment of the Contractor necessary or beneficial to performance of the Work which are damaged or stolen due to vandalism, theft or any other criminal mischief at its expense whether or not covered by insurance. No increase in the Contract Sum will be granted to the Contractor as a consequence of any delay, impacts or inefficiencies resulting from any act of vandalism, theft or other criminal mischief whether or not caused or contributed to by the Contractor's negligence. The Parties may agree to an extension of Contract Time in such circumstances as they agree is appropriate. 10.2.3 The Contractor must implement and maintain, as required by the Contract Documents, applicable laws and regulations and orders of public authorities having jurisdiction (without limitation OSHA and State of Montana safety agencies and authorities), manufacturers' instructions or recommendations, existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including issuing appropriate notices, distributing material safety data sheets and other hazard communication information, providing protective clothing and equipment, posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. 10.2.4 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. 10.2.5 The Contractor must not load nor permit any part of any structure at the Site to be loaded or subjected to stresses or pressures so as to endanger its safety or that of adjacent structures or property. 10.2.6 The Contractor shall reject the use of any Hazardous Material in the construction of the Project, including but not limited to asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic substances. It is the Owner's intent to specify and approve only materials and products for this Project that are free of such hazardous material. If the Contractor becomes aware of that any Subcontractor, material supplier or manufacturer intends to supply or install products or services for the Project that contain such materials, the Contractor shall promptly notify the Owner in writing. Further, if any such materials are discovered in the course of the construction, the Contractor shall notify the Owner immediately. Construction Manager shall comply with all hazard communication requirements dictated by the Environmental Protection Agency, the Montana Department of Agriculture, OSHA, Hazard Communications Standard, 29 CFR 1910.1200, and General Conditions of the Construction Contract—Bogert Pavilion Project Page 43 of 57 applicable City of Bozeman ordinances. When explosives or other hazardous materials or equipment are stored or used or unusual methods are employed in the performance of the Work, the Contractor must exercise utmost care and conduct such activities under supervision of properly qualified personnel. 10.2.7 If either party suffers injury or damage to person or property because of an act or omission of the other party, or of any of the other party's employees or agents, or of others for whose acts it is contended that the other party is liable, written notice of such injury or damage, whether or not insured, must be given to the other party within a reasonable time not exceeding twenty-one(21) days after the onset or occurrence of such damage or injury or such shorter time as may be required by the Occupational Safety Hazards Administration (OSHA). The notice must provide sufficient detail to enable the other party to investigate the matter. If notice is not received within the time specified, any claim arising from the occurrence will be deemed to be conclusively waived, except to the extent of any applicable insurance (excluding self-insurance) coverage covering such occurrence. The provisions of this Section may not be used by the Contractor in lieu of the requirements of Article 7 when the Contractor is seeking an adjustment in the Contract Sum and are in addition to the requirements of Article 8 when the Contractor is seeking an adjustment in the Contract Time. 10.2.8 The Contractor must promptly remedy, at its sole cost and expense, damage and loss to property referred to in Sections 10.2.1.2 and 10.2.1.3 caused in whole or in part by the Contractor, a Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable, unless otherwise instructed in writing by the Owner. This obligation is in addition to, and not in limitation of, the Contractor's obligations for indemnification under Section 3.18 and the Contractor's responsibility to repair and or replace that portion of the Work and any materials and equipment to be incorporated therein which are damaged as a result of criminal mischief as specified in Section 10.2.2. 10.2.9 The Contractor shall designate a responsible member of the Contractor's organization at the Site whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner. 10.3 HAZARDOUS MATERIALS 10.3.1 A "Hazardous Environmental Condition" means the presence at the Site of asbestos, PCBs, Petroleum, Hazardous Waste (as defined in Section 1004 of the Solid Waste Disposal Act, 42 SUSC Section 6903, as amended), or radioactive material ("Hazardous Materials"), in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. 10.3.2 The Contractor is responsible for compliance with any requirements included in the Contract Documents regarding hazardous materials. In the event the Contractor encounters on the Site material reasonably believed to be a Hazardous Material(other than those for which the Contractor may have specific responsibility for remediation under the Contract), and the Contractor's reasonable precautions will be inadequate to prevent foreseeable damage or injury and the Contractor cannot proceed with the Work in the absence of the removal, containment or remediation of the Hazardous Material, the Contractor must immediately stop Work in the area affected and report the condition to the Owner immediately upon discovery, followed by notice in writing within 24 hours of discovery. 10.3.2 Upon receipt of notice of suspected Hazardous Materials, Owner will cause an investigation to be made to verify the presence and extent of such materials, to determine whether such materials are in fact hazardous, and the steps necessary for their removal, containment or remediation. Owner shall be responsible for the cost of any such investigation, removal, containment or remediation. General Conditions of the Construction Contract—Bogert Pavilion Project Page 44 of 57 10.3.3 If the Owner's investigation confirms the presence of Hazardous Materials which present a risk of injury or damage which will not be adequately protected against by the Contractor's reasonable precautions, then the Work in the affected area must not thereafter be resumed except at the written direction of the Owner. The Work in the affected area will be resumed promptly (i) in the absence of a finding of Hazardous Material by the Owner, (ii) upon the removal, containment or remediation of the Hazardous Materials, or(iii) upon the establishment of appropriate safety precautions. 10.3.4 The Contractor may request a change in the Contract Sum or Contract Time if the Contractor incurs additional costs on account of or is delayed by the Owner's work to remove, contain or remediate Hazardous Materials which has not been rendered harmless at the Site unless the Contractor is responsible for same under the Contract. Any such requested change in the Contract Sum or Contract Time must be made in writing within ten (10) days of discovery of any Hazardous Materials, which has not been rendered harmless giving rise to the request for the change and must fully comply with Articles 7, 8, and 15 or any claim will be deemed conclusively waived by the Contractor. 10.3.5 The Owner shall not be responsible under this Section 10.3 for materials or substances the Contractor brings to the Site unless such materials or substances are required by the Contract Documents. The Owner shall be responsible for materials or substances required by the Contract Documents, except to the extent of the Contractor's fault or negligence in the use and handling of such materials or substances. 10.3.6 To the fullest extent permitted by law, the Contractor shall defend, indemnify and hold harmless the Owner from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court, or other dispute resolution costs)arising out of or relating to a Hazardous Environmental Condition created by Contractor or by anyone for whom Contractor is responsible, except to the extent such claims are due to the Owner's fault or negligence. 10.3 EMERGENCIES In an emergency affecting safety of persons or property,the Contractor must take all necessary action, without the necessity for any special instruction or authorization from the Owner,to prevent threatened damage, injury or loss. The Contractor must promptly, but in all events within twenty-four(24) hours of the emergency, report such action in writing to the Owner. If the Contractor incurs additional costs on account of or is delayed by such emergency, the Contractor may request a change in the Contract Sum or Contract Time to account for such additional costs or delay in accordance with Articles 7, 8 and 15. The Contractor must file any such request within ten (10) days of the emergency or it is deemed waived. Any adjustment in the Contract Sum or Contract Time shall be limited to the extent that the emergency work is not attributable to the fault or neglect of the Contractor or otherwise the responsibility of the Contractor under the Contract Documents. 10.4. UTILITIES 10.4.1. Underground Utilities: Buried utilities, including, but not limited to, electricity, gas, water, telephone,sewer, broadband coaxial computer cable,and fiber optic cables are very vulnerable and damage could result in loss of service. 10.4.2. "One Call" must be notified by phone and in writing at least 72 hours (3 business days) prior to digging to arrange and assist in the location of buried utilities in the field. (Dial 811). The Contractor shall mark the boundary of the work area. The boundary area shall be indicated with white paint and white flags. In winter, pink paint and flags will be accepted. 10.4.3. After buried utilities have been located,the Contractor shall be responsible for any utilities damaged while digging. Such responsibility shall include all necessary care including hand digging. Contractor's responsibility shall also include maintaining markings after initial locate. The area for General Conditions of the Construction Contract—Bogert Pavilion Project Page 45 of 57 such responsibility, unless otherwise indicated, shall extend 24 inches to either side of the marked center line of a buried utility line. 10.4.4. The Contractor's responsibility shall include repair or replacement of damaged utilities. The Contractor will also be responsible for all costs associated with reterminations and recertification. 10.4.5. Any buried utilities exposed by the operations of the Contractor shall be marked on the plans and adequately protected by the Contractor. If any buried utilities not located are exposed, the Contractor shall immediately contact the Owner. If, after exposing an unlocated buried utility, the Contractor continues digging without notifying Owner and further damages the utility, the Contractor will be fully and solely responsible. 10.4.6. Damage to irrigation systems during seasons of no irrigation that are not immediately and adequately repaired and tested will require the Contractor to return when the system is in service to complete the repair. 11. ARTICLE 11 -INSURANCE AND BONDS 11.1. CONTRACTOR'S LIABILITY INSURANCE 11.1.1 The Contractor shall carry and maintain, as part of the Contract Sum, the following insurance coverage insuring the Owner and Project while under construction and all material and supplies purchased in connection with the construction of the Project against all risks and losses. Contractor shall give Owner immediate notice of any material reduction, cancellation, termination or non-renewal of the insurance required by this Section 11.1. Any company writing this insurance shall at all times be licensed and qualified to do business in the State of Montana. Contractor's insurance shall be primary and non-contributory. Such insurance shall include: 11.1.1.1 Commercial General Liability with a minimum limit of liability of Ten Million Dollars ($10,000,000), for bodily injury and property damage coverage per occurrence including the following coverages: Contractual Liability; Premises and Operations; Independent Contractors; Personal Injury; Products and Completed Operations; and explosion, collapse and underground event. The policy must name the City of Bozeman as additional insureds. 11.1.1.2 Automobile Liability Insurance of not less than Two Million Dollars($2,000,000) combined single limit per occurrence to include coverage for owned, non-owned, hired motor vehicles, and automobile contractual liability. Coverage for underinsured/uninsured motorists shall be for not less than One Million Dollars ($1,000,000). The policy must name Gallatin County and the City of Bozeman as additional insureds. 11.1.1.3 Worker's Compensation/Employer's Liability meeting all statutory requirements of the State of Montana and with the following minimum Employers' Liability limits: bodily injury by accident—One Million Dollars($1,000,000)each accident; bodily injury by disease— One Million Dollars ($1,000,000) policy limits; and bodily injury by disease—One Million Dollars ($1,000,000)each employee. Contractor shall not commence work under this Agreement until such insurance has been obtained and certificates of insurance, with binders, or certified copies of the insurance policy including additional insureds endorsement shall have been filed with the Owner. General Conditions of the Construction Contract—Bogert Pavilion Project Page 46 of 57 The insurance requirements of this Section 11.1 shall also apply in full to all Subcontractors hired to perform the Work, provided Contractor and Owner may mutually agree in writing to different coverage limits for Subcontractor(s). 11.1.2 The insurance required by Section 11.1.1 shall be written for not less than limits of liability specified in the Contract Documents or required by law, whichever coverage is greater. Coverages, whether written on an occurrence or claims-made basis, shall be maintained without interruption from the date of commencement of the Work until two years after the date of Substantial Completion, and, with respect to the Contractor's completed operations coverage, until the expiration of the period for correction of Work or for such other period for maintenance of completed operations coverage as specified in the Contract Documents. 11.1.3 Certificates of insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the Work and thereafter upon renewal or replacement of each required policy of insurance and upon request by Owner. An additional certificate evidencing continuation of liability coverage, including coverage for completed operations, shall be submitted with the final Application for Payment as required by Section 9.10.2 and thereafter upon renewal or replacement of such coverage until the expiration of the time required by Section 11.1.2. Information concerning reduction of coverage on account of revised limits or claims paid under the General Aggregate, or both, shall be furnished by the Contractor within seven (7)days unless an alternative period is agreed to by the parties. 11.1.4 The Contractor shall cause the commercial liability coverage required by the Contract Documents to include the City of Bozeman as additional insured for claims caused in whole or in part by the Contractor's negligent acts or omissions during the Contractor's operations; and (2) the City of Bozeman as additional insured for claims caused in whole or in part by the Contractor's negligent acts or omissions during the Contractor's completed operations. 11.2 OWNER'S LIABILITY INSURANCE The City shall maintain coverage for its risks through the Montana Municipal Interlocal Authority. 11.3 PROPERTY INSURANCE 11.3.1 Unless otherwise provided, the Contractor shall purchase and maintain, in a company or companies lawfully authorized to do business in Montana, property insurance written on a builder's risk"all-risk" policy form in the amount of the initial Contract Sum, plus value of subsequent Contract Modifications and cost of materials supplied or installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless otherwise provided in the Contract Documents or otherwise agreed in writing by all persons and entities who are beneficiaries of such insurance, until final payment has been made as provided in Section 9.10 or until no person or entity other than the Owner has an insurable interest in the property required by this Section 11.3 to be covered, whichever is later. This insurance shall include interests of the Owner, the Contractor, Subcontractors and Sub-subcontractors in the Project. 11.3.1.1 Property insurance shall be on an "all-risk" policy form and shall include, without limitation, insurance against the perils of fire(with extended coverage) and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm, falsework, testing and startup, temporary buildings and debris removal including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for Contractor's services and expenses required as a result of such insured loss. The Parties may mutually agree in writing to separate limits for insurance covering the risk of flood and/or earthquake. General Conditions of the Construction Contract—Bogert Pavilion Project Page 47 of 57 11.3.1.2 If the property insurance requires deductibles, the Owner shall pay costs not covered because of such deductibles. The Owner waives all rights of action against the Contractor for loss of use of the Owner's property, including consequential losses due to fire or other hazards however caused. 11.3.1.3 This property insurance shall cover portions of the Work stored off the site, and also portions of the Work in transit. 11.3.1.4 Partial occupancy or use in accordance with Section 9.9 shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use by endorsement or otherwise. The Owner and the Contractor shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance. 11.3.2 BOILER AND MACHINERY INSURANCE The Contractor shall purchase and maintain boiler and machinery insurance required by the Contract Documents or by law, which shall specifically cover such insured objects during installation and until final acceptance by the Owner; this insurance shall include interests of the Owner, Contractor, Subcontractors and Sub-subcontractors in the Work, and the Owner and Contractor shall be named insureds. 11.3.3 LOSS OF USE INSURANCE The Owner, at the Owner's option, may maintain such insurance as will insure the Owner against loss of use of the Owner's property due to fire or other hazards, however caused. The Owner waives all rights of action against the Contractor for loss of use of the Owner's property, including consequential losses due to fire or other hazards however caused. 11.3.4 If the Contractor requests in writing that insurance for risks other than those described herein or other special causes of loss be included in the property insurance policy, the cost thereof shall be charged to the Contractor by appropriate Change Order. 11.3.5 If Asbestos Abatement is identified as part of the Work under this contract, the Contractor or any subcontractor involved in asbestos abatement shall purchase and maintain Asbestos Liability Insurance for coverage of bodily injury, sickness,disease,death,damages, claims, errors or omissions regarding the asbestos portion of the work in addition to the CGL Insurance by reason of any negligence in part or in whole, error or omission committed or alleged to have been committed by the Contractor or anyone for whom the Contractor is legally liable. Such insurance shall be in "per occurrence" form and shall clearly state on the certificate that asbestos work is included in the following limits: $1.000.000 per occurrence; aggregate limit of$2.000.000. Asbestos Liability Insurance as carried by the asbestos abatement subcontractor in these limits in lieu of the Contractor's coverage is acceptable provided the Contractor and the City of Bozeman are named as additional insureds and that the abatement subcontractor's insurance is PRIMARY as respects both the Owner and the Contractor. If the Contractor or any other subcontractor encounters asbestos, all operations shall be suspended until abatement with the associated air monitoring clearances are accomplished. The certificate of coverage shall be provided by the asbestos abatement subcontractor to both the Contractor and the Owner. 11.3.6 Before an exposure to loss may occur, the Contractor shall file with the Owner a copy of each policy that includes insurance coverages required by this Section 11.3. Each policy shall contain all generally applicable conditions, definitions, exclusions and endorsements related to this General Conditions of the Construction Contract—Bogert Pavilion Project Page 48 of 57 Project. Each policy shall contain a provision that the policy will not be canceled or allowed to expire, and that its limits will not be reduced, until at least thirty(30) days' prior written notice has been given to the Owner. 11.3.7 A loss insured under the Contractor's property insurance shall be adjusted by the Contractor and made payable to the Contractor, subject to requirements of any applicable mortgagee clause. The Contractor shall pay Subcontractors their just shares of insurance proceeds received by the Contractor, and by appropriate agreements, written where legally required for validity, shall require Subcontractors to make payments to their Sub-subcontractors in similar manner. 11.4 PERFORMANCE BOND AND LABOR & MATERIAL PAYMENT BOND (BOTH ARE REQUIRED ON THIS PROJECT) 11.4.1 The Contractor shall furnish a Performance Bond and Labor and Material Payment Bond meeting all statutory requirements of the State of Montana, in form and substances satisfactory to the Owner and, without limitation, complying with the following specific requirements: 11.4.1.1 Except as otherwise required by statute, the form and substance of such bond(s) shall be satisfactory to the Owner in the Owner's sole judgment. 11.4.1.2 Bond(s) shall be executed by a responsible surety licensed in Montana and listed in the latest U.S. Dept. of Treasury Circular#570, with a Best's rating of no less than A/XII. Said bonds shall remain in effect through the warranty period, and until all of the Contractor's obligations to the Owner are fulfilled. 11.4.1.3 The Performance Bond and the Labor and Material Payment Bond shall be in an amount equal to or exceeding one hundred percent(100%) of the Contract Sum. 11.4.1.4 The Contractor shall require the attorney-in-fact who executes the required bond(s) on behalf of the surety to affix thereto a certified and current copy of his power of attorney indicating the monetary limit of such power. 11.4.1.5 Every Bond under this Paragraph 11.4.1 must display the Surety's Bond Number. A rider including the following provision shall be attached to each Bond: (1) Surety agrees that it is obligated under the bond(s)to any successor, grantee or assignee of the Owner. 11.4.1.6 The City of Bozeman shall be named as obligee on the bonds. The Contractor shall deliver the required bonds to the Owner not later than three (3) days following the date the Guaranteed Maximum Price Amendment is executed and prior to the commencement of the Construction Phase. Premiums for all bonds shall be part of the Contract Sum. 11.4.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Contract, the Contractor shall promptly furnish a copy of the bonds or shall authorize a copy to be furnished. 11.4.3 The Contractor shall keep the surety informed of the progress of the Work, and, where necessary, obtain the surety's consent to, or waiver of: (a) notice of changes in the Work; (b) request for reduction or release of retention; (c) request for final payment; and (d) any other material required by the surety. The Owner may, in the Owner's sole discretion, inform surety of the progress of the Work and obtain consents as necessary to protect the Owner's rights, interest, privileges and benefits under and pursuant to any bond issued in connection with the Work. General Conditions of the Construction Contract—Bogert Pavilion Project Page 49 of 57 12 ARTICLE 12 -UNCOVERING AND CORRECTION OF WORK 12.1. UNCOVERING OF WORK 12.1.1. If a portion of the Work is covered contrary to the Owner's request or to requirements specifically expressed in the Contract Documents, it must, if required in writing by the Owner, be uncovered for the Owner's examination and be replaced at the Contractor's expense without change in the Contract Time. 12.1.2. If a portion of the Work has been covered which the Owner has not specifically requested to examine prior to it being covered, the Owner may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at the Owner's expense. If such Work is not in accordance with the Contract Documents, correction shall be at the Contractor's expense unless the condition was caused by the Owner or a separate contractor in which event the Owner shall be responsible for payment of such costs. 12.2. CORRECTION OF WORK 12.2.1. BEFORE OR AFTER SUBSTANTIAL COMPLETION 12.2.1.1. The Contractor shall promptly correct Work that fails to conform to the requirements of the Contract Documents or that is rejected by the Owner, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including additional testing and inspections and compensation for the Owner's expenses made necessary thereby, shall be at the Contractor's expense. The Contractor is responsible to discover and correct all defective work and shall not rely upon the Owner's observations. 12.2.1.2. Rejection and Correction of Work in Progress. During the course of the Work, the Contractor shall inspect and promptly reject any Work that: 12.2.1.2.1. does not conform to the Construction Documents; or, 12.2.1.2.2. does not comply with any applicable law, statute, building code, rule or regulation of any governmental, public and quasi-public authorities, and agencies having jurisdiction over the Project. 12.2.1.3. The Contractor shall promptly correct or require the correction of all rejected Work, whether observed before or after Substantial Completion. The Contractor shall bear all costs of correcting such Work, including additional testing, inspections, and compensation for all services and expenses necessitated by such corrective action. 12.2.2. AFTER SUBSTANTIAL COMPLETION AND AFTER FINAL ACCEPTANCE 12.2.2.1. In addition to the Contractor's obligations under Paragraph 3.5, if,within two years after the date of Final Acceptance of the Work or designated portion thereof or after the date for commencement of warranties, or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents,the Contractor shall correct it promptly after receipt of written notice from the Owner to do so unless the Owner has previously given the Contractor a written acceptance of such condition The Owner shall give such notice promptly after discovery of the condition. During the two-year period for correction of Work, if the Owner fails to notify the Contractor and give the Contractor an opportunity to make the correction, the Owner waives the rights to require correction by the Contractor and to make a claim for breach of warranty. If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the Owner, General Conditions of the Construction Contract—Bogert Pavilion Project Page 50 of 57 the Owner may correct it in accordance with Paragraph 2.3. 12.2.2.1.1. The Contractor shall remedy any and all deficiencies due to faulty materials or workmanship and pay for any damage to other work resulting there from, which shall appear within the period of Substantial Completion through two (2) years from the date of Final Acceptance in accordance with the terms and conditions of the Contract and with any special guarantees or warranties provided in the Contract Documents. The Owner shall give notice of observed deficiencies with within seven (7)days unless an alternative period is agreed to by the parties. All manufacturer, product and supplier warranties are in addition to this Contractor warranty. 12.2.2.1.2. The Contractor shall respond within seven (7) days after notice of observed deficiencies has been given and he shall proceed to immediately remedy these deficiencies. 12.2.2.1.3. Should the Contractor fail to respond to the notice or not remedy those deficiencies; the Owner shall have this work corrected at the expense of the Contractor. 12.2.2.1.4. Latent defects shall be in addition to those identified above and shall be the responsibility of the Contractor per the statute of limitations for a written contract(27-2- 208 MCA) starting from the date of Final Acceptance. 12.2.2.2. The two-year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work. 12.2.2.3. The two-year period for correction of Work shall not be extended by corrective Work performed by the Contractor pursuant to this Paragraph 12.2. 12.2.3. The Contractor shall remove from the site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner. 12.2.4. The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the Owner or separate contractors caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. 12.2.5. Nothing contained in this Paragraph 12.2 shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. Establishment of the two-year period for correction of Work as described in Subparagraph 12.2.2 relates only to the specific obligation of the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than specifically to correct the Work. 12.3. ACCEPTANCE OF NONCONFORMING WORK 12.3.1. If the Owner prefers to accept Work which is not in accordance with the requirements of the Contract Documents, the Owner may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made. General Conditions of the Construction Contract—Bogert Pavilion Project Page 51 of 57 13. ARTICLE 13 -MISCELLANEOUS PROVISIONS 13.1. GOVERNING LAW 13.1.1. The Contract shall be governed by the laws of the State of Montana and venue for all legal proceedings shall be the Eighteenth Judicial District, Gallatin County. 13.2. SUCCESSORS AND ASSIGNS 13.2.1. The Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. Neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempt to make such assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. 13.3. WRITTEN NOTICE 13.3.1. Written notices are to be provided to the representatives of the parties designated in this Contract. Written notices are deemed to have been duly served if delivered in person to the addressee for whom it was intended, or if delivered by electronic mail, fax,certified mail, or overnight courier. The date of any notice is deemed to be the date of personal delivery, fax, or electronic mail; one day after delivery to the overnight courier; and three (3) days after mailing by certified mail. 13.4. RIGHTS AND REMEDIES 13.4.1. Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law. 13.4.2. No action or failure to act by the Owner or Contractor shall constitute a waiver of a right or duty afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing. 13.5. TESTS AND INSPECTIONS 13.5.1. Tests, inspections and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations or orders of public authorities having jurisdiction shall be made at an appropriate time. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity acceptable to the Owner, or with the appropriate public authority, and shall bear all related costs of tests, inspections and approvals. The Contractor shall give the Owner timely notice of when and where tests and inspections are to be made so that the Owner may be present for such procedures. The Owner shall bear costs of tests, inspections or approvals which do not become requirements until after bids are received or negotiations concluded. 13.5.2. If the Owner or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Subparagraph 13.5.1, the Owner will instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to the Owner of when and where tests and inspections are to be made so that the Owner may be present for such procedures. Such costs, except as provided in Subparagraph 13.5.3 shall be at the Owner's expense. 13.5.3. If such procedures for testing, inspection or approval under Subparagraphs 13.5.1 and 13.5.2 General Conditions of the Construction Contract—Bogert Pavilion Project Page 52 of 57 reveal failure of the portions of the Work to comply with requirements established by the Contract Documents, all costs made necessary by such failure including those of repeated procedures and compensation for the Owner's expenses shall be at the Contractor's expense. 13.5.4. Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and promptly delivered to the Owner. 13.5.5. If the Owner is to observe tests, inspections or approvals required by the Contract Documents, the Owner will do so promptly and, where practicable, at the normal place of testing. 13.5.6. Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. 13.6. INTEREST 13.6.1. Payments due and unpaid under the Contract Documents shall bear interest from the date payment is due at such rate as the parties may agree upon in writing or, in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. 13.7. COMMENCEMENT OF STATUTORY LIMITATION PERIOD 13.7.1. As between the Owner and Contractor: 13.7.1.1. Before Substantial Completion. As to acts or failures to act occurring prior to the relevant date of Substantial Completion, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than such date of Substantial Completion; 13.7.1.2. Between Substantial Completion and Owner's Approval of Contractor's Final Application for Payment.As to acts or failures to act occurring subsequent to the relevant date of Substantial Completion and prior to Owner's approval of the Contractor's final Application for Payment, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the date of Owner's approval of the final Application for Payment; and, 13.7.1.3. After Final Payment. As to acts or failures to act occurring after the relevant date of Owner's approval of the Contractor's final Application for Payment, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the date of any act or failure to act by the Contractor pursuant to any Warranty provided under Paragraph 3.5, the date of any correction of the Work or failure to correct the Work by the Contractor under Paragraph 12.2, or the date of actual commission of any other act or failure to perform any duty or obligation by the Contractor or Owner, whichever occurs last. 13.8. DOCUMENT RETENTION AND AUDIT PROVISIONS 13.8.1. Contractor shall account for all materials, equipment and labor entering into the Work and must keep such full and detailed records as may be necessary for proper financial management pursuant to the Contract Documents for a period of five(5)years after final payment. Furthermore,the Owner has the right to examine the Contractor's and its Subcontractors' and suppliers' records directly or indirectly pertaining or relating to the Work or the Contract and the Contractor must grant the Owner access to and an opportunity to copy such records at all reasonable times during the Contract period and for five (5) years after final payment. 14. ARTICLE 14—TERMINATION OR SUSPENSION OF THE CONTRACT General Conditions of the Construction Contract—Bogert Pavilion Project Page 53 of 57 14.1. TERMINATION BY THE CONTRACTOR 14.1.1. The Contractor may terminate the Contract if the Work is stopped for a period of thirty (30) consecutive days through no act or fault of the Contractor or a Subcontractor, Sub- subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, for any of the following reasons: 14.1.1.1. issuance of an order of a court or other public authority having jurisdiction which requires all Work to be stopped; or, 14.1.1.2. an act of government, such as a declaration of national emergency which requires all Work to be stopped. 14.1.2. The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or interruptions of the entire Work by the Owner as described in Paragraph 1.4.3 constitute in the aggregate more than 100 percent of the total number of days scheduled for completion, or 120 days in any 365-day period, whichever is less. 14.1.3. If one of the reasons described in Subparagraph 14.1.1 or 14.1.2 exists, the Contractor may, upon seven (7) days' written notice to the Owner, terminate the Contract and recover from the Owner payment for Work executed and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery,including reasonable overhead and profit but not damages. 14.1.4. If the Work is stopped for a period of sixty (60) consecutive days through no act or fault of the Contractor or a Subcontractor or their agents or employees or any other persons performing portions of the Work under contract with the Contractor because the Owner has persistently failed to fulfill the Owner's obligations under the Contract Documents with respect to matters important to the progress of the Work, the Contractor may, upon seven (7) additional days' written notice to the Owner, terminate the Contract and recover from the Owner as provided in Subparagraph 14.1.3. 14.2. TERMINATION BY THE OWNER FOR CAUSE 14.2.1. The Owner may terminate the Contract if the Contractor: 14.2.1.1. repeatedly refuses or fails to supply enough properly skilled workers or proper materials; 14.2.1.2. fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors; 14.2.1.3. fails to comply with any laws, ordinances, or rules, regulations or orders of a public authority having jurisdiction; 14.2.1.4. Fails to perform the Work in accordance with the Contract Documents or otherwise materially breaches any provision of the Contract Documents; 14.2.1.5. Anticipatorily breaches or repudiates the Contract; or 14.2.1.6. Fails to make satisfactory progress in the prosecution of the Work required by the Contract. General Conditions of the Construction Contract—Bogert Pavilion Project Page 54 of 57 14.2.2. The Owner may terminate the Contract, in whole or in part, whenever the Owner determines in good faith that sufficient cause for termination exist as provided in Subsection 14.2.1. The Owner will provide the Contractor with a written ten (10)day notice to cure the default. If the default is not cured, the termination for default is effective on the date specified in the Owner's written notice. However, if the Owner determinates that default contributes to the curtailment of an essential service or poses an immediate threat to life, health, or property, the Owner may terminate the Contract immediately upon issuing oral or written notice to the Contractor without any prior notice or opportunity to cure. In addition to any other remedies provided by law or the Contract, the Contractor must compensate the Owner for additional costs actually incurred by the Owner to obtain substitute performance. Following written notice for the Owner of termination, the Owner may, subject to any prior rights of the surety: 14.2.2.1. take possession of the site and of all materials, equipment, tools, and construction equipment and machinery thereon owned by the Contractor; 14.2.2.2. accept assignment of subcontracts pursuant to Paragraph 5.4; and, 14.2.2.3. finish the Work by whatever reasonable method the Owner may deem expedient. Upon request of the Contractor, the Owner shall furnish to the Contractor a detailed accounting of the costs incurred by the Owner in finishing the Work. 14.2.3. Upon receipt of written notice from the Owner of termination, the Contractor must: 14.2.3.1 Cease operations as directed by the Owner in the notice and, if required by the Owner, reasonably cooperate in an inspection of the Work with the Owner to record the extent of completion thereof, to identify the Work remaining to be completed or corrected; 14.2.3.2 Complete or correct the items directed by the Owner, and take actions necessary, or that the Owner may direct, for the protection and preservation of any stored materials and completed Work; 14.2.3.3 Remove its tools, equipment and construction machinery from the Site; and 14.2.3.4 Except as directed by the Owner, terminate all existing subcontracts and purchase orders and enter into no further subcontracts or purchase orders. 14.2.4. When the Owner terminates the Contract for one of the reasons stated in Subparagraph 14.2.1, the Contractor shall not be entitled to receive further payment until the Work is finished. 14.2.5. If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including compensation for the Owner's expenses made necessary thereby, and other damages incurred by the Owner and not expressly waived, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner. This obligation for payment shall survive termination of the Contract. 14.2.6. If the Contractor files for protection, or a petition is filed against it, under the Bankruptcy laws, and Contractor wishes to affirm the Contract, Contractor shall immediately file with the Bankruptcy Court a motion to affirm the Contract and shall provide satisfactory evidence to Owner and to the Court of its ability to cure all present defaults and its ability to timely and successfully complete the Work. If Contractor does not make such an immediate filing, Contractor accepts that Owner shall petition the Bankruptcy Court to lift the Automatic Stay and permit Owner to terminate the Contract. 14.3. SUSPENSION BY THE OWNER FOR CONVENIENCE 14.3.1. The Owner may, without cause, order the Contractor in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the Owner may determine. General Conditions of the Construction Contract—Bogert Pavilion Project Page 55 of 57 14.3.2. The Contract Sum and Contract Time shall be equitably adjusted for increases in the cost and time caused by suspension, delay or interruption as described in Subparagraph 14.3.1.Adjustment of the Contract Sum shall include profit. No adjustment shall be made to the extent: 14.3.2.1. that performance is, was or would have been so suspended, delayed or interrupted by another cause for which the Contractor is responsible; or, 14.3.2.2. that an equitable adjustment is made or denied under another provision of the Contract. 14.4. TERMINATION BY THE OWNER FOR CONVENIENCE 14.4.1. The Owner may, at any time, terminate the Contract or any portion thereof or of the Work for the Owner's convenience and without cause. 14.4.2. Upon receipt of written notice from the Owner of such termination for the Owner's convenience, the Contractor shall: 14.4.2.1. cease operations as directed by the Owner in the notice and, if required by the Owner, participate in an inspection of the Work with the Owner to record the extent of completion thereof, to identify the Work remaining to be completed or corrected; 14.4.2.2. Complete or correct the items directed by the Owner, and take actions necessary, or that the Owner may direct,for the protection and preservation of the Work; 14.4.2.3. Remove its tools, equipment and construction machinery from the Site; and 14.4.2.4. Except for Work directed to be performed prior to the effective date of termination stated in the notice, terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders. 14.4.3 Following written notice from the Owner of termination, the Owner may: 14.4.3.1 Take possession of the Site and of all materials for which the Owner has paid; 14.4.3.2 Accept assignment of subcontracts and purchase orders; and 14.4.3.3 Complete the Work by whatever reasonable method the Owner may deem expedient. 14.4.4. In case of such termination for the Owner's convenience, the Contractor shall be entitled to compensation only for the following items: 14.4.4.1 Payment for acceptable Work performed up to the date of termination, including Contractor's fee; 14.4.4.2 The costs of preservation and protection of the Work if requested to do so by the Owner; 14.4.4.3 The cost of terminating the following contracts including: (i.) Purchased materials but only if not returnable and provided to the Owner, or the restocking or return charge, if any, if returnable at the Owner's written election; (ii.) Equipment rental contracts if not terminable at no cost but not to exceed an amount equal to thirty(30)days rental; 14.4.4.4 Documented transportation costs associated with removing Contractor-owned equipment; and 14.4.4.5 Documented demobilization and close-out costs. The Contractor will not be compensated for the cost of terminating subcontracts, which must be General Conditions of the Construction Contract—Bogert Pavilion Project Page 56 of 57 terminable at no cost to the Owner if the Contract is terminated, except for those costs listed in Section 14.4.4.1 through 14.4.4.5. If the Owner and the Contractor are unable to agree upon the amounts specified in this subsection, the Contractor may submit a Claim as provided in Section 4.3. The Claim must be limited to resolution of the amounts specified in Subsections 14.4.4.1, 14.4.4.2, 14.4.4.3, 14.4.4.4, and 14.4.4.5 of this Subsection 14.4.4. No other cost, damages or expenses may be claimed or paid to the Contractor or considered as part of the Claim, the same being hereby conclusively and irrevocably waived by the Contractor. Any such Claim must be delivered to the Owner within thirty(30) days of the termination of the Contract and must contain a written statement setting forth the specific reasons and supporting calculations and documentation as to the amounts the Contractor claims to be entitled to under this Subsection as a result of the termination of the Contract. 14.4.5. The Contractor's obligations surviving final payment under the Contract, including without limitation those with respect to insurance, indemnification, and correction of Work that has been completed at the time of termination, remains effective notwithstanding termination for convenience of the Owner. 14.4.6. In the event of termination or cancellation of any or all pre-construction services and/or decision not pursue a GMP Amendment/Contract, the Contractor shall not be due any costs, or overhead, or profit on any portion of the Work, but shall be paid for the completed portion of Pre-Construction Phase Services documented by Contractor. 15. ARTICLE 15—EQUAL OPPORTUNITY The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor shall have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The City of Bozeman requires that Contractor shall not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall require these nondiscrimination terms of its Subcontractors. [END OF GENERAL CONDITIONS] General Conditions of the Construction Contract—Bogert Pavilion Project Page 57 of 57