HomeMy WebLinkAbout08- Addendum #1 to the Standard Form of Agreement Between Owner and Construction Manager AIA Document A121 CMcADDENDUM #1 TO THE STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND CONSTRUCTION MANAGER
AIA DOCUMENT A121 CMc - 2003
The following provisions modify, change, delete from or add to the agreement between
Owner and Construction Manager, AIA Document A121 CMc, 2003 ("AIA Document
A121 "). Except where any article of the standard form is modified, or any paragraph,
subparagraph or clause thereof is modified or deleted by this Addendum, the provisions of that article,
paragraph, paragraphs or clause shall remain in effect. For purposes of this Project, the term Construction
Manager, General Contractor Construction Manager ("GCCM") and "Contractor" shall all mean the
Construction Manager identified in this contract. For purposes of this Project and this Agreement, and
except where otherwise noted, the term "Subcontractors" shall mean any contractors, subcontractors, trade
contractors, or other entities who are successful bidders in the competitive bidding processes conducted by
the Owner and who are awarded contracts for construction work on this Project.
1.1
1.2 Delete in its entirety Subparagraph 1.2 and replace with the following;
During the Construction Phase of this Project, the Construction Manager's responsibilities to the Owner
shall be as set forth in this Addendum and in the 1997 Edition of the AIA Document A201, "General
Conditions of the Contract for Construction," and the Supplementary Conditions, which are incorporated
herein by reference (hereinafter collectively referred to as "AIA Document A201 "). For the Preconstruction
Phase, or in the event that the Preconstruction and Construction Phases proceed concurrently, AIA
Document A201 shall apply to the Preconstruction Phase only as specifically provided in this Agreement.
The term Contractor as used in AIA Document A201 shall mean the Construction Manager.
Add new Subparagraph to Article 1 as follows:
1.3 Preconstruction and Construction Phases of Work
The Parties acknowledge and agree that the Construction Manager will provide services at the
Preconstruction Phase, (which shall run through the Bidding Phase) and, if approved by the Owner,
through the Construction Phase. The Parties agree and acknowledge that the Project will proceed with a
phased or sequential bidding process and that portions of the
Project may enter Construction Phase while other portions of the Project remain in the
Preconstruction Phase. Until the Owner has given approval for use of the Construction
Manager beyond the Preconstruction Phase of a phased or sequential portion of the Project,
pursuant to Amendment No. 1 hereto or any subsequently numbered Amendment, the
Construction Manager shall have the authority to provide services only through the
Preconstruction Phase of that phased or sequential portion of the Project at the compensation set
forth in Section 4.1.1,
2.1
2.1.6 Delete Subparagraph 2.1.6 in its entirety.
2.1.8 Replace the first sentence of Subparagraph 2.1.8 with the following:
Except as may otherwise be provided herein, the Construction Manager does not warrantor
guarantee estimates and schedules. It is understood that the Construction Manager/Architect
team will invest substantial time before, during and after the bidding phase and that value
engineering and minor scope changes to the design of the Project will frequently be necessary
during the Preconstruction Phrase to protect and maintain the Owner's overall budget. It is
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recognized that neither the Owner nor the Construction Manager has control over the cost of
labor, materials or equipment, competitive bidding, market or negotiating conditions.
Accordingly, the Construction Manager cannot and does not warrantor represent that bids or
negotiated prices will not vary from the Owner's Project budget or from any estimate of the
Cost of Work or evaluation prepared by the Architect.
Add new Subparagraph to Paragraph 2.1 as follows:
2.1.10 Overview of Services.
Without assuming any responsibility for the design of the Work, the Construction Manager
will, in addition to any other services set forth under Paragraph 2.1, provide the following
Preconstruction services:
.1 Consult with, advise, assist, and provide recommendations to the Owner and
Architect on all aspects of the planning and design of the Work. The Architect
is, however, ultimately responsible for the design of the Work.
.2 Provide information, estimates, and participate in decisions regarding
construction materials, methods, systems, phasing, and costs to assist in
determinations that are aimed at providing the highest quality building within
the budget and schedule.
.3 Review in-progress design documents and provide input and advise on
construction feasibility, alternative materials, and availability of materials and
equipment; Review completed design documents and suggest modifications to
improve completeness and clarity.
.4 Provide input regarding the current construction market bidding climate, status
of key subcontract markets, etc.; Recommend division of work to facilitate
bidding and award of trade contracts, considering such factors as bidding
climate, improving or accelerating construction completion, minimizing trade
jurisdictional disputes and related issues.
.5 Work with the Architect to develop and monitor the Project critical path
schedule and recommend adjustments in the design documents or construction
bid packaging to ensure completion of the Project in an expeditious manner,
while addressing and meeting schedule requirements.
.6 Prepare construction cost estimates for the project at appropriate times
throughout the design phases of the work; Notify the Owner as soon as
reasonably possible if the provided construction cost estimates appear to be
exceeding the Owner's budget.
.7 Work with the Owner and Architect to assist the Architect with its goal of
achieving a building that will meet the Historic Preservation Restoration requirements.
.8 Work with the Architect in order for the Architect to complete all design work in
accordance with applicable government codes.
.9 Attend a minimum of 3 meetings of the Required City Review Boards, at the Design
Development, Construction Documents and Bidding Phase, as coordinated with
the Owner and Architect.
.10 Assist the Architect in the submission of the Construction Documents to the
specific state and local agencies having jurisdiction over the Project, including
but not limited to review under § 20-6-622, MCA and in securing written
approval from those agencies.
.11 Work with the Architect in the preparation of the advertisements for bids, as
well as the necessary forms, record of bidders, plan deposits, proposals and other
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bidding and construction documents, all subject to the Owner's approval prior to
distribution to prospective bidders. The Construction Manager shall also work
with the Architect to ensure that the bid specifications and Construction
Documents contain the provisions required by Montana law concerning
prevailing wage (§§18-2403 and 18-2-422, MCA; ARM 24.16.9005), resident
hiring preference (§ 18-2-403, MCA), nondiscrimination (§49-3-207, MCA),
bid security (§18-2-302, MCA), posting of wages and maintenance of records
(§§ 18-2-406 and 422, MCA, as amended) and all other provisions required by
Montana and Federal law for public contracting
.12 Assist the Owner and Architect in determining the number and nature of the bid
packages to be placed for bid, open the bids on behalf of the Owner at a
public meeting on school premises and following a review of the bids
conducted with the Architect, assist the Architect in the preparation of a
written bid analysis for presentation to the Owner, along with supporting
documentation.
.13 Work with the Architect to require that all contracts for construction contain
requirements that the Subcontractors provide operations manuals and adequate
training and support for the Owner in the operation of mechanical, electrical,
heating and air conditioning systems installed by the Subcontractor.
.14 Act as the advisor to and agent of the Owner.
2.1.11 Additional Pre-Construction Phase Responsibilities.
The Construction Manager will work with the Architect in the preparation of the bidding
information, which must be approved by the Owner before distribution to prospective bidders.
Construction will not commence until plans and specifications have been submitted to and
approved by the City of Bozeman. Plans and specifications must show in detail the proposed
construction and indicate conformity with the applicable building code. (see §20-2-622, MCA.)
2.2
2.2.1 Replace Subparagraph 2.2.1 in its entirety with the following:
At the end of the Bidding Phase, the Construction Manager shall propose, in writing, a
guaranteed maximum price (GMP) in the form of Amendment No. 1, attached hereto. The
GMP shall be calculated by adding: (i) the sum of all of the awarded contracts for the Work;
(ii) the Construction Manager's Reimbursable Direct Job Costs; (iii) the Construction
Manager's Fee; and (iv) the Construction Contingency. The Construction Manager's fee shall
be calculated by adding the sum of all of the awarded contracts for the Work to the
Construction Manager's Reimbursable Direct Job Costs, and multiplying that sum by 6%.
The Owner shall have the right to pay Reimbursable Direct Job Costs directly where feasible,
thereby reducing the overall GMP.
If the GMP proposal exceeds the Construction Manager's most recent approved cost estimate
relating to a portion of the construction work, the Construction Manager shall work with the
Architect to bring the project within the approved cost estimate.
The Construction Manager's Fee shall be established in accordance with Article 5, as
amended.
If the proposed GMP is acceptable, the Owner shall, within ten (10) days, approve Amendment
No. 1 and issue a Notice to Proceed to the Construction Manager indicating its approval of
the GMP and its decision to utilize the Construction Manager throughout the Construction
Phase of that portion of the Project.
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Bids for construction work shall be formally awarded by the Construction Manager after the
Construction Manager receives the Notice to Proceed and shall be awarded on behalf of the
Owner to the lowest responsible and responsive bidder in accordance with Montana Law.
Any bid for construction work for which the Construction Manager is the lowest responsible
and responsive bidder shall be awarded by the Owner to the Construction Manager and shall
constitute a contract between the Owner and Construction Manager and the Construction
Manager shall be the guarantor of such contract under the provisions of this Agreement relating
to the GMP.
2.2.2 Delete Subparagraph 2.2.2 in its entirety,
2.2.3 Replace Subparagraph 2.2.3 with the following:
The Owner shall maintain the construction contingency and this cost shall not be included as part of the
Construction Managers GMP.
2.2.4 Delete Subparagraph 2.2,4 in its entirety.
Add the following new Subparagraphs to Paragraph 2.2:
2.2.11 If, after executing Amendment No. 1, the parties agree to change the total sum of
the GMP, both parties shall sign a new, sequentially numbered, amendment in the form of
Amendment No. 1, evidencing their agreement to change the total sum of the GMP.
The GMP shall be amended only in the event of a Change in the Scope of Work, and any
amendment to the GMP shall be limited to the actual, substantiated increase or decrease in the
Cost of Work caused thereby plus or minus the Construction Manager's fee specified in Section
5.1.1.
.1 A Change in Scope means a change to the Project that is initiated, requested or
approved by the Owner and (a) involves a change to a design, schedule or procurement
previously approved by the Owner; or (b) expands, enlarges or diminishes the Scope of
the Work and the nature, quantity, scope or quality of the Construction Manager's work
and services; or (c) is approved by the Owner in writing as a Change in Scope. A
Change in Scope may result in an increase or decrease to the GMP, an increase or
decrease to the Project's Contract Time or a combination of the two.
.2 To effectuate a Change in Scope, either the Owner may initiate the Change or
the Construction Manager shall notify the Owner and Architect in writing if it believes it
is entitled:
(a) to an increase in the GMP, or
(b) to an extension in the Contract Time, or
(c) to a combination of the two.
.3 The Construction Manager's failure to provide the Owner with written notice of a
proposed Change in Scope within the 30 calendar days of the event giving rise to the
Construction Manager's claim shall mean that the Construction Manager has waived any
claim arising therefrom and the Construction Manager shall perform all work associated
with the alleged Change in Scope at issue without an increase in the GMP or the
Contract Time, and without use of the Construction Contingency Account.
2.2.12 After receiving the Construction Manager's notice as provided in Section 2.2.11, the
Owner may request that the Construction Manager prepare and submit specific comments,
recommendations and alternatives for modifying the Project to fit within the GMP and
Completion Date(s).
2.2.13 Within 30 calendar days of receiving the Construction Manager's notice as provided in
Section 2.2.11 or after receiving the Construction Manager's comments, recommendations or
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City of Bozeman -Historic T.B. Story Mansion Interior Renovation
alternatives as provided in Section 2.2.12, whichever is later, the Owner shall exercise one of
the following options:
(a) agree with the Construction Manager's request to increase the GMP or the Contract
Time, or both, as requested in the Construction Manager's written notice; or
(b) accept only a portion of the Construction Manager's request to increase the GMP or
the Contract Time or both; or
(c) reject the Construction Manager's request for an increase to the GMP and the
Contract Time or both and direct the Construction Manager to proceed with the Work.
In the event the Owner refuses to agree with the Construction Manager's request to increase the
GMP or the Contract Time, or both, in whole or in part, and notwithstanding any provision of
the Contract Documents to the contrary, the Construction Manager may pursue a claim for an
increase in the GMP or the Contract Time, or both, in accordance with the procedure provided
AIA Document A201-1997, including Articles 4 and 7 thereof.
2.3
2.3.1.1 Replace subparagraph 2.3.1.1 in its entirety with the following:
The Construction Phase with respect to any portion of the Project shall commence no later than
the date of the issuance of the Notice to Proceed.
Add the following new Subparagraphs to Paragraph 2.3:
2.3.1.2 During the Construction Phase of any portion of the Project, the Construction
Manager's obligations to the Owner, in addition to those set forth herein, shall generally be as set
forth in AIA Document A201 and the supplement conditions thereto, and shall specifically
include the performance of general and comprehensive oversight of the Project on behalf of
the Owner. The Construction Manager shall, on behalf of the Owner, enter into contracts with
Subcontractors that shall be subject to AIA Document A201, and the supplemental conditions
thereto, agreed upon by the Owner, Architect and Construction Manager. Such
documents shall become part of the Contract Documents governing the Work,
2.3.1.2.1 The Construction Manager shall, on behalf of the Owner, enter into contracts in
accordance with Paragraph 2.2.1 above for the performance of the Work with all
successful, responsive, and responsible bidders in the competitive bidding process
conducted by the Owner In accordance with Section 2.2.1, the Owner will enter into the
contracts for specific work with the Construction Manager where the Construction Manager
is the lowest bidder. All such direct contracts
with the Construction Manager are guaranteed by the Construction Manager's GMP and shall
be treated in the same fashion as other subcontracts for all purposes except as otherwise
noted herein or expressly stated in the contracts themselves.
2.3.1.2.2 The Construction Manager shall be directly obligated to the Owner for the
administration and performance of the Work under all of the contracts referenced in Subparagraph
2.3.1.2.1.
2.3.1.2.3 The Construction Manager may undertake construction work with the Construction
Manager's own forces only under the following conditions: (1) such work is publicly bid
according to the invitations to bid and requirements of state law; (2) the Construction
Manager is the lowest responsive and responsible bidder for the work as confirmed by the
Architect and Owner.
2.3.2.1 Delete the third sentence of Section 2.3.2.1 and insert a new third sentence as follows:
The Owner will determine, with the advice of the Construction Manager, which bids will be
accepted; provided however, the Construction Manager, at its sole discretion, may require that
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any bidder provide full performance and payments bonds as a condition precedent to any work
being awarded to such bidder.
2.3.2.3 Replace Subparagraph 2.3.2.3 in its entirety with the following:
Subcontracts and agreements with suppliers furnishing material or equipment fabricated to a
special design shall conform to the payment provisions of Subparagraphs 7,1.8 and 7,1.9.
2.3.2.5 Replace Subparagraph 2.3.2.5 in its entirety with the following:
The Construction Manager shall prepare a schedule in accordance with Paragraph 3.10 of
AIA Document A201, including the Owner's occupancy requirements.
2.3.2.6 Replace Subparagraph 2.3.2.6 in its entirety with the following:
The Construction Manager shall record the progress of the Project and shall submit monthly
written progress reports to the Owner and Architect including information on each
Subcontractor's Work, as well as the entire Project, showing percentages of completion.
The Construction Manager shall keep a daily log containing a record of weather, each
Subcontractor's Work on the site, number of workers, identification of equipment, Work
accomplished, problems encountered, and other similar data as the Owner may require. The log
shall be available to the Owner and Architect.
Add the following new Subparagraphs to Subparagraph 2.3.2:
2.3.2.8 The Construction Manager shall, on behalf of the Owner, execute and enter into
all contracts with Subcontractors and shall ensure that the contracts contain all provisions
required bylaw, including, but not limited to, compliance with provisions addressing
prevailing wages (§18-2-403, 422, MCA); Montana residential preferences (§ 18-2-403,
MCA), nondiscrimination (§49-3-207, MCA), and maintenance of records requirements
(§18-2-406 and 422, MCA, as amended). (See generally Article 2.1.10(11) above).
The Construction Manager will conform to the provisions of §15-50-206, MCA, requiring
the withholding of 1 % of all payments due the Subcontractors. For each contract, the
Construction Manager will file the necessary forms, including the Form PC-1 and related
forms, with the Montana Department of Revenue containing the information set forth in
ARM 42.31.2121, within 10 days of the award of the contract. The Construction Manager
will copy the Owner with all filings and transmittals made with or to the Department of
Revenue in fulfillment of its obligations under this provision.
2.3.2.9 Utilizing the construction schedules provided by the various Subcontractors, the
Construction Manager shall update the Project construction schedule incorporating the
activities of the Subcontractors on the Project, including activity sequences and durations,
allocation of labor and materials, and delivery of products requiring long-lead time and
procurement. The Construction Manager shall maintain Shop Drawings, Product Data and
Samples and other submittal material from the Subcontractors in a separate tabular schedule.
The Project construction schedule shall include the Owner's occupancy requirements showing
portions of the Project having occupancy priority. The Construction Manager shall update and
reissue the Project Construction schedule as required to show current conditions. If an update
indicates that the previously approved Project construction schedule may not be met, the
Construction Manager shall recommend corrective action to the Owner and Architect.
2.3.2.10 Consistent with the various bidding documents and utilizing information from the
Subcontractors, the Construction Manager shall coordinate the sequence of construction
and the assigning of space in areas where the Subcontractors are performing work.
2.3.2.11 The Construction Manager shall determine in general that the Work of each
Subcontractor is being performed in accordance with the requirements of the Contract
Documents to guard the Owner against defects and deficiencies in the Work, As appropriate,
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City of Bozeman -Historic T.B. Story Mansion Interior Renovation
the Construction Manager shall have the authority, upon written authorization from the Owner,
to require additional inspection or testing of the Work in accordance with the provisions of
the Contract Documents, whether or not such Work is fabricated, installed or completed. The
Construction Manager, in consultation with the Architect, may reject Work that does not
conform to the requirements of the Contract Documents.
2.3.2.12 The Construction Manager shall schedule and coordinate the sequence of construction
in accordance with the Contract Documents and the latest approved Project construction
schedule, as well as schedule and coordinate any outside inspections required by law so as to
avoid unnecessary delays.
2.3.2.13 The Construction Manager shall arrange for the delivery, storage, protection and
security of Owner purchased materials, systems and equipment that are part of the Project until
such items are incorporated into the Project, if such materials, systems and equipment are
identified in the plans and specifications.
2.3.2.14 The Construction Manager shall review requests for changes, assist in negotiating
the Subcontractor's proposals, submit recommendations to the Architect and Owner and, if
they are accepted, prepare Change Orders and Construction Change Directives which
incorporate the Architect's modifications to the Documents.
2.3.2.15 In collaboration with the Architect, the Construction Manager shall establish and
implement procedures for expediting the processing and approval of Shop Drawings, Product
Data, Samples and other submittals. The Construction Manager shall review all Shop
Drawings, Product Data, Samples and other submittals from the Subcontractors. The
Construction Manager shall coordinate submittals with information contained in related
documents and simultaneously transmit to the Architect and Owner those that have been
approved by the Construction Manager. The Construction Manager's actions shall be taken
with such reasonable promptness as to cause no delay in the Work or in the activities of the
Owner or Subcontractors.
2.3.2.16 The Construction Manager shall maintain at the Project site for the Owner one
record copy of all Contracts, Drawings, Specifications, addenda, Change Orders and other
Modifications, in good order and marked currently to record changes and selections made
during construction, and in addition, approved Shop Drawings, Product Data, Samples and
similar required submittals. The Construction Manager shall maintain records, in duplicate, of
principal building layout lines, elevations of the bottom of the footings, floor levels and key
site elevations certified by a qualified surveyor or professional engineer. The Construction
Manager shall make all such records and record Drawings available to the Architect and upon
completion of the Project shall deliver them to the Owner.
2.3.2.17 With the Architect and the Owner's maintenance personnel, the Construction
Manager shall conduct the final testing and start-up of utilities, operating systems and
equipment.
2.3.2.18 When the Construction Manager considers each Subcontractor's Work or designated
portion thereof substantially complete, the Construction Manager shall notify the Architect.
The Construction Manager shall assist the Architect in conducting inspections to determine
whether the Work or designated portion thereof is substantially complete.
2.3.2.19 The Construction Manager shall coordinate and administer any required correction
and completion of the Work. Following issuance of a Certificate of Substantial Completion
of the Work or a designated portion thereof, the Construction Manager shall evaluate the
completion of the Work of the Subcontractors and make recommendations to the Architect
when Work is ready for final inspection. The Construction Manager shall assist the Architect
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in making final inspections.
2.3.2.20 The Construction Manager shall, accompanied by the Architect and a representative of
the Owner, make the following inspections per agreed dates on the schedule. "Substantial
Completion" - to determine that building systems are operational but not necessarily balanced,
flooring is installed and walls painted, that all furnishings and other materials will be able to be
staged in classrooms and offices. "Balance" - to determine that all building systems will be
balanced, all trim and cabinetry will be installed, the spaces will be completed and ready for
staged materials to be unpacked and the rooms put into use, the gymnasium will be completed
and all outside hard surfaces will be fully completed. "Final" - to determine that all outside
landscaping shall be completed and all punch list items for minor adjustments and repairs shall
be completed. "Warranty" -such inspection shall be made approximately eleven months after
Substantial Completion and acceptance of the Work. These inspections may be at different
times for different portions of the Work. The Construction Manager shall assist the Architect in
determining whether the Work has been completed in accordance with the Contract Documents
and shall assist the Architect in endeavoring to see that any remedial work found to be necessary
is performed in a satisfactory and workmanlike manner by the Subcontractor responsible for the
same.
2.3.2.21 The Construction Manager shall secure and transmit to the Architect all warranties
and similar submittals required by the Contract Documents for delivery to the Owner and
deliver all keys, manuals, record drawings and maintenance stocks to the Owner. The
Construction Manager shall forward to the Architect a final Project Application for Payment
upon compliance with the requirements of the Contract Documents.
2.5
.5 Insert the following after the first sentence of Subparagraph 2.5 with the following:
Except as otherwise provided, the Owner, Construction Manager and Architect shall then
proceed in the manner described in Article 10 of AIA Document A201. The Owner shall be
responsible for obtaining the services of a licensed laboratory to verify the presence or absence
of the material or substance reported by the Construction Manager and, in the event such
material or substance is found to be present, to verify that it has been rendered harmless. The
Construction Manager shall assist the Owner in procuring the services of persons or entities to
perform tests verifying the presence or absence of such material or substance or to perform the
task of removal or safe containment of such material or substance.
4.1
4.1.1 Replace Subparagraph 4.1.1 in its entirety with the following:
For the Construction Manager's services during the Preconstruction phase, the Construction
Manager shall be paid the fixed sum of $6,200 and the Construction Manager will keep
a log of services rendered during this period
4.1.2 Delete Subparagraph 4.1.2 in its entirety.
4.1.3 Delete Subparagraph 4.1.3 in its entirety.
4.2.1 Add the following to Subparagraph 4.2.1:
Payments are due and payable pursuant to §28-2-2101 et seq., MCA, which provides, in part,
that a contractor's request for payment is considered approved by the owner 21 days after
receipt of the request by the Owner or the person designated in the contract by the Owner to
receive the payment request unless, prior to that time, the Owner provides the contractor with
a written statement containing specific items in the request for payment that are being
disapproved by the Owner. If the Owner approves all or a portion of a contractor's request
for payment as provided in the statute, the Owner shall pay the contractor the approved
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amount within 7 days after contractor's request for payment is approved.
4.2.2 Delete Subparagraph 4.2.2 in its entirety.
5.1
5.1.1 Replace Subparagraph 5.1.1 in its entirety with the following:
For the Construction Manager's services during the Construction Phase, the Construction
Manager's Fee shall be 6% of the sum of all of the awarded contracts for the Work plus the
Construction Manager's Reimbursable Direct Job Costs as defined in Subparagraph 2.2.1 above, less any
credit amount under Subparagraph 4.1.1 above
The Owner shall in no event be obligated to the Construction Manager for more than the amount
set forth in this Subparagraph 5.1,1 for Construction Phase fees in connection with this Project.
Notwithstanding any other provisions in the Contract Documents, the basis for computing the
Construction Manager's compensation under this paragraph shall specifically not include
any increased contract sums necessitated by changes in the work, increased costs, or costs
approved for any other reason, except as provided by Sections 2.2.11 and 2.2.12.
5.2
5.2.1 Replace Subparagraph 5.2.1 in its entirety with the following:
The sum of the Cost of the Work as defined in Subparagraph 6.1.1 below, together with the
Construction Manager's Fee, is guaranteed by the Construction Manager not to exceed the
Guaranteed Maximum Price provided in Amendment No. 1 or any sequentially numbered
Amendment, subject only to additions approved in accordance with this Agreement and the
General and Supplemental Conditions made a part hereof. Such maximum sum as adjusted by
approved changes in the Work is referred to herein as the adjusted Guaranteed Maximum
Price. Any costs or expenses that cause the adjusted Guaranteed Maximum Price to be
exceeded shall be the sole responsibility of and paid by the Construction Manager without
reimbursement by the Owner except as provided in Section 2.2.11 and 2.212.
5.3
5.3.2 Replace Subparagraph 5.3.2 in its entirety with the following:
In calculating adjustments to Subcontracts, the terms "cost" and "fee" as used in
Subparagraph 7.3.3.3 of AIA Document A201 and the terms "cost" and "a reasonable
allowance for overhead and profit" as used in Subparagraph 7.3.6 of AIA Document A201
shall have the meanings assigned to them in that document and shall not be modified by this
Article 5. The Construction Manager's fee and/or overhead and profit shall not be increased
based on changes to the work except as specifically provided in Section 5.1.1, where the
Owner requests material changes which are outside the scope of the Project.
5.3.3 Delete Subparagraph 5.3.3 in its entirety.
5.3.4 Delete Subparagraph 5.3.4 in its entirety.
6.1
6.1.1 Replace Subparagraph 6,1.1 in its entirety with the following:
The term "Cost of the Work" shall mean the aggregate total of all Subcontracts
competitively solicited and awarded for construction work in connection with the Project,
including any contracts competitively solicited and awarded to the Construction Manager for
construction work in connection with the Project, and Reimbursable Direct Job Costs defined on Exhibit A.
In the event inconsistency between any Contract Document and Exhibit A, Exhibit A shall govern.
6.1.2 Delete Subparagraph 6.1.2 in its entirety.
6.1.3 Delete Subparagraph 6.1,3 in its entirety.
6.1.4 Delete Subparagraph 6.1.4 in its entirety.
6.1.5 Delete Subparagraph 6.1.5 in its entirety.
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6.1.6 Delete Subparagraph 6.1.6 in its entirety.
6.1.7 Delete Subparagraph 6.1.7 in its entirety.
6.1.8 Delete Subparagraph 6.1.8 in its entirety,
6.1.9 Delete Subparagraph 6,1.9 in its entirety.
6.2
6.2.1 Delete Subparagraph 6,2.1 in its entirety.
6.4
6.4.1 Add the following to Paragraph 6.4.1 after the first sentence:
The Construction Manager shall maintain records for all subcontracts, change orders and scope of Work
changes resulting from all Subcontractors,
7.1
7.1.1 Delete the words "on account of the Contract Sum" from the first sentence of
Subparagraph 7.1.1.
7.1.3 Replace Subparagraph 7.1.3 in its entirety with the following:
Progress payments are due and payable pursuant to §28-2-2101 et seq., MCA, which
provides, in part, that a contractor's request for payment is considered approved by the
Owner 21 days after receipt of the request by the Owner or the person designated in the
contract by the Owner to receive the payment request unless, prior to that time, the Owner
provides the contractor with a written statement containing specific items in the request for
payment that are being disapproved by the Owner. If the Owner approves all or a portion of
a contractor's request for payment as provided in the statute, the Owner shall pay the
contractor the approved amount within 7 days after contractor's request for payment is
approved.
Replace Subparagraph 7,1.8 in its entirety with following:
7.1.8 After the words "retainage of in the first sentence of Subparagraph 7.1.7.3, insert the
words "five percent (5%)". All retainage amounts under this provision shall be placed in an
interest-bearing account by the Owner in the name of both parties in accordance with Montana
law. The interest from that account shall be payable to the Construction Manager as it is
accrued. The payment of the escrow account shall be made to the Construction Manager
simultaneously with the final payment, less only such amount as may reasonably be necessary to
correct any identified deficiency in the Work in accordance with Sections 28-2-2101, et seq, of
the Montana Code Annotated.
Except with the Owner's prior approval, payments to Subcontractors shall be subject to
retention of not less than five percent (5%).
Add the following new Subparagraphs to Subparagraph 7.1:
7.1.11 The Construction Manager shall develop and implement procedures for the timely
review and processing of applications for payment by Subcontractors for progress and final
payments.
7.1.12 Based on the Construction Manager's observations and evaluations of each
Subcontractor's application for payment, the Construction Manager shall review and certify
the amounts due the respective Subcontractors and shall incorporate such certified amounts
into the Application for Payment developed under Subparagraph 7.1.5 above.
7.1.13 The Construction Manager's certification for payment shall constitute a representation
to the Owner, based on the Construction Manager's determinations at the site and on the data
comprising the Subcontractor's applications for payment, that, to the best of the Construction
Manager's knowledge, information and belief, the Work has progressed to the point indicated
and the quality of the Work is in accordance with the Contract Documents, The foregoing
ADDENDUM TO THE AIA A121 -PAGE 10 OF 16
City of Bozeman -Historic T.B. Story Mansion Interior Renovation
representations are subject to an evaluation of the Work for conformance with the Contract
Documents upon Substantial Completion, to results of subsequent tests and inspections, to
minor deviations from the Contract Documents correctable prior to completion and to
specific qualifications expressed by the Construction Manager in writing. The issuance of a
Certificate for Payment shall further constitute a representation that the various
Subcontractors are entitled to payment in the amount certified.
7.2
7.2.1 Replace Subparagraph 7.2.1 in its entirety with the following:
Except as may otherwise be provided herein, final payment shall be made by the Owner to
the Construction Manager when (1) this Agreement has been fully performed by the
Construction Manager and all Work completed by the Subcontractors, except for their
respective responsibilities to (a) correct nonconforming Work as provided in AIA Document
A201 and (b) satisfy other requirements, if any, which necessarily survive final payment;
(2) a final Application for Payment and a final accounting for the Cost of the Work and
General Condition Expenses have been submitted by the Construction Manager and
reviewed by the Owner and/or its accountants; and (3) a final Certificate for Payment has
then been issued by the Architect. Such final payment shall be made pursuant to §28-2-2101
et seq., MCA.
7.2.4 Replace Subparagraph 7.2.4 in its entirety with the following:
If the Owner's accountants report the Cost of the Work and AIA Document A201 Expenses as
substantiated by the Construction Manager's final accounting to be less than claimed by the
Construction Manager, the Construction Manager shall be entitled to proceed to resolve such
dispute under Article 9 or as otherwise provided herein without a further decision of the
Architect, Pending a final resolution of the disputed amount, the Owner shall pay the
Construction Manager the amount certified in the Architect's final Certificate for Payment.
7.2.5 Delete Subparagraph 7,2.5 in its entirety.
8.1
8.1.1 Replace Subparagraph 8.1.1 in its entirety with the following:
Without limiting any of the other obligations or liabilities of the Construction Manager, the
Construction Manager shall secure and maintain such insurance from an admitted insurance
company (or companies) authorized to write insurance in the State of Montana, with a
minimum "A.M. Best Rating" of A, as will protect himself, his subcontractors, the Owner and
the Architect/Engineersnd their respective agents and employees from claims for bodily
injury, death, or property damage which may arise from operations and completed operations
under this Agreement. Such coverage shall be written for claims arising out of all
premises/operations, and all liability assumed by the Construction Manager under any
contract or agreement. Construction Manager 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, shall have been filed with the Owner and the
Architect/Engineer.
All insurance coverages shall remain in effect throughout the life of the Agreement, except
that the Construction Manager shall maintain the Commercial General Liability coverage for a
period of at least one year following the substantial completion date for property damage
resulting from occurrences during the agreement period.
Each insurance policy shall contain a clause providing that it will not be cancelled by the
insurance company without 45 days written notice to the Owner and Architect/Engineer of
intention to cancel,
ADDENDUM TO THE AIA A121 -PAGE 11 OF 16
City of Bozeman -Historic T.B. Story Mansion Interior Renovation
Owner and Architect/Engineersre to be added as additional insureds under the General
Liability Coverages. However, the Owner and the Construction Manager understand that the
insurance coverage procured by the Construction Manager shall not provide coverage for design
related liabilities, it being the responsibility of the Architect to provide for the same,
Certificates of Insurance shall be provided identifying such interests.
The minimum amount of such primary insurance coverages shall be as follows:
.1 Commercial General Liability -Occurrence Form
Bodily Injury and Property Damage;
$1,000,000.00 per occurrence
$3,000,000.00 Annual Aggregate
Coverage to include;
Premises Operations
Products Completed Operations
Contractual Liability
Operations of Independent Contractors
Personal Injury
Broad Form Property Damage
Deductible: Not more than $5,000.00 per occurrence on property damage.
.2 Automobile Liability-Combined Single Limit
Combined Single Limits: $1,000,000.00 each accident
Uninsured /Underinsured Motorist Limits: $1,000,000,00.
Bodily Injury and Property Damage: Coverage to include:
All owned autos
All hired autos
All non-owned autos
.3 Umbrella or Excess Insurance
Per Occurrence Limit : $3,000,000.00
Annual Aggregate Limit: $3,000,000.00
This coverage to apply to the commercial general liability and the
automobile liability. Total limit of liability coverage requested is
$4,000,000 per occurrence and can be made up of a combination of the primary
and the umbrella or excess insurance coverage.
.4 Workers' Compensation
Occupational Injury and Disease Statutory Employer's Liability:
These requirements may be written with General Liability Policy by
endorsement if unavailable from Workers' Compensation carrier.
8.1.2 Delete Subparagraph 8.1.2 in its entirety.
8.1.3 Delete Subparagraph 8.1.3 in its entirety.
8.1.4 Delete Subparagraph 8.1.4 in its entirety.
8.2
8.2 Replace in its entirety with the following:
During both phases of the Project, The Owner will maintain liability and property insurance with the City's
insurance carrier at the recommended carrier's levels.
8.3
8.3.1 Replace Subparagraph 8.3.1 in its entirety with the following:
The Construction Manager shall furnish bonds covering the faithful performance of this
contract and all contracts competitively solicited and awarded for construction work in
ADDENDUM TO THE AIA A121 -PAGE 12 OF 16
City of Bozeman -Historic T.B. Story Mansion Interior Renovation
connection with the Project and payment of all obligations arising thereunder, including labor
and materials, Bonds may be obtained through the Construction Manager's usual source and
the cost thereof shall be included in the Cost of the Work. The amount of each bond
shall be equal to 100% of the Contract Sum of this contract and any and all contracts
competitively solicited and awarded for construction work in connection with the Project.
Both the Construction Manager and the Owner shall be listed as obligees on the payment and
performance bonds.
9.1
9.1.1 Replace Subparagraph 9.1.1 in its entirety with the following:
During both the Preconstruction and Construction Phases, Claims, disputes or other matters in
question between the parties to this Agreement shall be resolved as provided in Sections 4.3
through 4.6 in AIA Document A201, except that, during the Preconstruction Phase, no decision by the
Architect shall be a condition precedent to mediation.
9.2
9.2.1 Replace Subparagraph 9.2.1 in its entirety with the following:
Unless otherwise noted or unless otherwise inconsistent with their intended meaning in this
Agreement, the terms used in this Agreement shall have the same meaning as those in the
AIA Document A201,
9.2.2 Replace Subparagraph 9.2.2 in its entirety with the following:
This contract, which includes this Agreement, its Addendum, its Amendments and the other
documents incorporated herein by reference, represents the entire and integrated Agreement
between the Owner and Construction Manager and supersedes all prior negotiations,
representations or agreements, either written or oral. This Agreement and its Addendum
may be amended only by written instrument signed by both the Owner and the Construction
Manager. If any document incorporated into this Agreement or its Addendum is inconsistent
with either, this Agreement and its Addendum shall govern.
10.1
10.1.1 Replace Subparagraph 10.1.1 in its entirety with the following:
During the Preconstruction Phase, the Owner may terminate this Agreement at any time
without cause, and the Construction Manager may terminate this Agreement for any of the
reasons described in Subparagraph 14.1.1 of AIA Document A201.
10.1.2 Replace Subparagraph 10.1.2 in its entirety with the following:
If the Owner or Construction Manager terminates this Agreement pursuant to
Subparagraph10.1.1 above prior to the commencement of the Construction Phase, the
Construction Manager shall be equitably compensated for Preconstruction Phase services
performed prior to receipt of notice of termination; provided, however, that the compensation
for such services shall not exceed the compensation set forth in Subparagraph 4.1.1.
10.1.3 Replace Subparagraph 10.1.3 in its entirety with the following:
After commencement of the Construction Phase, the Construction Manager may terminate
this Agreement for any of the reasons set forth in and pursuant to Subparagraph 14.1 of AIA
Document A201. The Owner may terminate this Agreement for any of the reasons set forth
and pursuant to Subparagraphs 14.2 or 14.4 of AIA Document A201.
10.1.4 If the Owner or Construction Manager terminates this Agreement pursuant to
Paragraph 10.1.3, the Construction Manager shall be entitled to compensation for services
rendered prior to termination in an amount that bears the same ratio to the Construction
Manager's total Fee as the amount of Work completed during the Construction Manager's
period of Construction Phase services bears to the total Cost of the Work. The aggregate of
ADDENDUM TO THE AIA A121 -PAGE 13 OF 16
City of Bozeman -Historic T.B. Story Mansion Interior Renovation
previous payments made by the Owner with respect to the Construction Manager's Fee shall
be deducted from the figure arrived at through the above-referenced ratio. No amounts beyond
amounts that are tied to actual work performed shall be paid to the Construction Manager.
10.2
10.2.1 Delete Subparagraph 10.2.1 in its entirety.
10.2.2 Delete Subparagraph 10.2.2 in its entirety.
10.3
10.3 Replace Subparagraph 10.3 in its entirety with the following:
The Work may be suspended by the Owner as provided in Article 14 of AIA Document A201.
Add Article 11 and the following Subparagraphs of Article 11:
ARTICLE 11
11.1 The Construction Manager shall itself comply with and shall ensure the compliance
of the various Subcontractors with § 18-2-403, MCA in terms of giving preference to the
employment of bona fide Montana residents in the work it performs under this Agreement
and in paying the standard prevailing wage rate of wages, including travel allowance and
fringe benefits, in effect and applicable to the operations that are conducted in performing
the Work on this Project. The Construction Manager will properly classify its employees and
ensure that the various Subcontractors properly classify their respective employees in
accordance with the most recent Montana prevailing wage rates as established by the
Montana Department of Labor prior to commencing operations under this Agreement. A copy
of the applicable prevailing wage rates are contained in the Project Manual and are expressly
incorporated herein by reference.
11.2 No waiver of any breach of any one of the agreements, terms, conditions or covenants
of this Agreement by the Owner or Construction Manager shall be deemed to imply or
constitute a waiver of any other agreement, term, condition or covenant of this Agreement.
The failure of either party to insist on strict performance of any agreement, term, condition
or covenant herein set forth, shall not constitute or be construed as a waiver of the rights of
either or the other thereafter to enforce any other default of such agreement, term, condition
or covenant; neither shall such failure to insist upon strict performance be deemed sufficient
grounds to enable either party to forego or subvert or otherwise disregard any other
agreement, term, condition or covenant of this Agreement.
11.3 If in any instance any provision hereof shall be determined to be invalid or
unenforceable under any applicable law, such provision shall not apply in such instances, but
the remaining provisions shall be given effect in accordance with their terms.
11.4 Any notices required or permitted under this Agreement or which any party elects to
give shall be in writing and delivered either personally to the other party's authorized agent
set forth below (or as changed by written notice); or by depositing such notice with the
United States Postal Service, postage fully prepaid, to the person at the address set forth below;
by certified mail, return receipt requested; or to such other address as either party may later
designate in writing. Any notice given by mail as herein provided shall be deemed given
when deposited in the United States mail:
Owner: James Goehrung Construction Manager: R & R Taylor Construction, Inc.
ADDENDUM TO THE AIA A121 -PAGE 14 OF 16
City of Bozeman -Historic T.B. Story Mansion Interior Renovation
Director of Facility Services P.O. Box 1234
City of Bozeman Bozeman, MT 59715
P 0 Box 1230
Bozeman, MT 59771
11.5 This Agreement may be executed in several counterparts, and each such counterpart
shall be deemed an original.
11.6 Time is of the essence, and the Construction Manager agrees to proceed with the
provision of services under this Agreement with due diligence and without delay, in order
to meet the Owner's schedule of construction and occupancy. It is expressly agreed and
understood between the parties that the Project must reach Substantial Completion no later
than June 30, 2008.
11.7 The Construction Manager 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. Further, if any such materials are
discovered in the course of the construction, the Construction Manager shall notify the Owner
immediately,
11.8 In the event either party files suit to enforce their rights under this agreement, the
prevailing party shall be entitled to recover their costs and attorneys fees from the other party,
in addition to any other damages awarded by the court. It is understood and agreed that any
suit filed to interpret or enforce any of the provisions of this agreement shall be filed in the
Eighteenth Judicial District Court of the State of Montana.
This ADDENDUM No. 1 entered into on this 19TH day ~f DECEMBER , 2008.
OWNER: CONSTRUCTION MANAGER:
City of Bozeman R& R Taylor Construction, Inc.
P.O. Box 1230 P.O. B 1234
Boz M~ 59771 n, MT 59 5
By: ~ gy.
Chris Kukulski, City Manager R L OLSEN, PRESIDENT
ATTEST;
Stacy I en, ity Clerk
AMENDMENT NO. 1 TO AGREEMENT BETWEEN OWNER
ADDENDUM TO THE AIA A121 -PAGE 15 OF 16
City of Bozeman -Historic T.B. Story Mansion Interior Renovation
AND CONSTRUCTION MANAGER
Pursuant to Subparagraph 2.2 of the Agreement between Owner and Construction Manager (as
modified by Addendum No 1), dated this 19TH day Of DECEMBER , 2008, between
the City of Bozeman ("Owner") and R & R Taylor Construction, Inc. ("Construction Manager") for the
Historic T,B. Story Mansion Renovation Project, the Owner and Construction Manager hereby establish a
Guaranteed Maximum Price and Contract Time for this portion of the Project as set forth below:
GUARANTEED MAXIMUM PRICE
The Construction Manager's Guaranteed Maximum Price (GMP) for the Work, including the
Cost of the Work as defined in Article 6 and the Construction Manager's Fee as defined in
Article 5 is as follows:
$ 8s2,o26.0o Total of all Contracts competitively solicited and awarded
for construction work in connection with the Project.
$ 164 , 014 . oo Construction Manager's Fee for Construction Phase of the
Project.
$ 25 , 202 . oo Reimbursable Direct Job Costs identified on Exhibit A, that
are not paid for directly by the Owner.
$ 1, o~ 1, 242 _ nn TOTAL GUARANTEED MAXIMUM PRICE
CONTRACT TIME
The date of Substantial Completion for the Work underlying the contracts identified in Article 2
is: June 30, 2009.
This Amendment No. 1 is entered into on this 19TH day pf DECEMBER , 2008.
OWNER: CONSTRUCTION MANAGER:
City of Bozeman R & R Taylor Construction, Inc.
P.O. Box 1230 P.O. Box 1234
Bozeman MT, 59771 Bozeman, MT 59715
~ r
By B .
Chris Kukulski L L. OLSEN, PRESIDENT
City Manager
ATTEST: ~f
I J
Sta y UI en
City r <
ADDENDUM TO THE AIA A121 -PAGE 16 OF 16
City of Bozeman -Historic T.B. Story Mansion Interior Renovation
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