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Contract - Hensel Phelps, KR CC, Inc., RR TEDCO - 4/26/2018 . AIA DocumentA133TM — 2009 Standard Form of Agreement Between Owner and Construction Manager as Constructor where the basis of payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price AGREEMENT made as of the day of >n the year 2018 ADDITIONS AND DELETIONS: (In words, indicate day, month and year.) The author of this document has added information needed for its BETWEEN the Owner: completion.The author may also have revised the text of the original (Name, legal status and address) AIA standard form.An Additions and I Round Rock Transportation and Economic Development Corporation("TEDCO") Deletions Report that notes added information as well as revisions to (for address for notice purposes see Exhibit A) the standard form text is available from the author and should be reviewed.A vertical line in the left and the Construction Manager: margin of this document indicates (Name, legal status and address) where the author has added necessary information and where I Hensel Phelps the author has added to or deleted (for address for notice purposes see Exhibit A) from the original AIA text. This document has important legal for the following Project: consequences.Consultation with an (Name and address or location) attorney is encouraged with respect IRound Rock Convention Center to its completion or modification. (See Project description below for additional detail) AIA Document A201 TM-2007, General Conditions of the Contract The Architect: for Construction,is adopted in this (Name, legal status and address) document by reference.Do not use with other general conditions unless HKS,Inc. this document is modified. (Paragraphs Deleted) The Owner and Construction Manager agree as follows: Init. AIA Document A133TM—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3139ADA11) --1 A(�- �6% TABLE OF ARTICLES 1 GENERAL PROVISIONS 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES 3 OWNER'S RESPONSIBILITIES 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES 6 COST OF THE WORK FOR CONSTRUCTION PHASE 7 PAYMENTS FOR CONSTRUCTION PHASE SERVICES 8 INSURANCE AND BONDS 9 DISPUTE RESOLUTION 10 TERMINATION OR SUSPENSION 11 MISCELLANEOUS PROVISIONS 12 SCOPE OF THE AGREEMENT Init. AIA Document A133TM—2009(formerly A1211mCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIX)Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° 2 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No 2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3139ADA11) i ARTICLE 1 GENERAL PROVISIONS §1.1 PROJECT The Project is for the construction of a 200,000 square foot Convention Center is owned by the City of Round, Rock,Texas(the"City"). In conjunction with the construction of the Project herein,is a new resort including approximate 1000-key hotel,200,000 square foot Indoor Water Park,150,000 square foot Indoor Theme Park,Lobby,retail,multiple food and beverage locations,4,000 parking spaces,all related and requisite back-house support,facilities,and infrastructure to operate the facilities,and certain onsite public improvements("Kalahari Project"),included as part of the larger project is a and constructed under a separate contract(all together the scopes of Work for the Project and the Kalahari Project make up the master project("Master Project"). This is one of two agreements,which together,cover the Master Project. §1.2 RELATIONSHIP OF THE PARTIES The Construction Manager accepts the relationship of trust and confidence established by this Agreement and covenants with the Owner to cooperate with the Architect and exercise the Construction Manager's industry respected skill and judgment in furthering the interests of the Owner consistent with the terms of the Contract as defined in the General Conditions.The Construction Manager shall furnish construction administration,management services and supervision;furnish at all times an adequate supply of workers and materials;and perform the Work in an expeditious and economical manner consistent with the Owner's interests and with the terms of the Contract. The Owner shall endeavor to promote harmony and cooperation among the Owner,the City,the Architect,Construction Manager,and other persons or entities employed by Owner for the Project. For notice purposes attached hereto is Exhibit A-List of Designated Representatives and Contact Persons. §1.2.1 Owner.The Owner is a Type-B corporation created under the authority of Chapter 505 of the Texas Local Government Code. §1.2.1.1 Owner Related Parties. The term"Owner Related Parties"refer to the following identified parties,together with their owners,members,managers,affiliates,general or limited partners,joint venture partners,and each of their respective directors,officers,employees,or successors: City of Round Rock,Texas,a Texas home-rule municipality Note: Construction Manager acknowledges and agrees that,notwithstanding the rights and benefits of the Owner Related Parties arising under this Contract,Construction Manager is not contracting with such Owner Related Parties other than the Owner(or its assigns as provided herein)and that Construction Manager shall have no contractual cause of action against such Owner Related Parties arising from this Contract,except as may otherwise be expressly agreed in writing between the Construction Manager and such Owner Related Party. §1.2.1.2 Owner's Designated Representative.Owner has designated a city employee and a third-party to act as its Owner's Designated Representative("Owner's Designated Representative")for the Project as designated in Exhibit A.Except as otherwise directed in writing by Owner,Construction Manager shall furnish to Owner's Designated Representative copies of all notices and written communications by or through Construction Manager to Owner or the Architect,contemporaneously with such notice to Owner and/or Architect. Construction Manager shall cooperate fully with the Owner's Designated Representative and shall provide Owner's Designated Representative full access to the Project,to the same extent as required for the Owner and/or Architect. Notices to Owner's Designated Representative shall be sent as set forth in Exhibit A. Construction Manager shall be entitled to rely upon direction and decisions made by Owner's Designated Representative except to the extent that Owner has expressly provided written direction to the contrary. Inst. AIA Document A133TM—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 3 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (369ADA11) § 1.2.2 The City of Round Rock,Texas. The City of Round Rock,Texas(the"City")is the vested and legal owner of the real property on which the Project will be located in Round Rock,Texas(the"Land")more particularly described in Exhibit B—Legal Description,which is attached hereto. Notice is hereby given that the fee interest in the Land shall not be subject to liens for improvements made by the Owner. Liens against the City's fee interest in the Land are prohibited. Neither the Construction Manager nor any subcontractor of any tier("Subcontractor"or" Subcontractors"as defined herein)shall have any lien rights(constitutional or statutory)against the City's fee interest in the Land.Construction Manager,and each Subcontractor,must include a clause substantially the same as the foregoing clause in each contract that Construction Manager,or that Subcontractor,enters into with persons providing labor,services,or materials so that such persons are put on notice that they are prohibited from filing liens against the Land with respect to their work for Construction Manager or any subcontractor,as applicable. Construction Manager,and each Subcontractor,must require that such persons acknowledge receipt of such notice and agree that they are prohibited from filing liens against the City's fee interest in the land with respect to their work for the Construction Manager or that Subcontractor,as applicable. §1.2.2.1 Third-Party Beneficiary. Construction Manager acknowledges and agrees that the scope of Work included in this Agreement is part of a larger Master Project,and that the scopes of Work together between the Convention Center Project and the Kalahari Project make up the Master Project. Construction Manager agrees that KR Acquisitions LLC and KR CC,Inc.are intended third-party beneficiaries of the Master Project,including but not limited to the agreement between Construction Manager and the City for the Convention Center scope of Work. § 1.2.3 Construction Manager. Construction Manager is engaged as an independent business,and agrees to perform the Work as an independent construction manager and not as the agent,employee,or servant of Owner. Subject to approvals from the Owner,Construction Manager has and hereby retains the right to exercise full control and supervision of the Work. Construction Manager agrees to be responsible for all such matters. Construction Manager agrees to be responsible for its own acts and those of its subordinates,employees,and Subcontractors during the term of this Agreement. Nothing contained herein or inferable herefrom shall be construed to make Construction Manager the agent,servant or employee of Owner,or create any partnership,joint venture,or other association between Construction Manager and Owner,or any of the Owner Related Parties.Any direction or instruction by Owner of any of its authorized representatives with respect to the Work shall relate to the results the Owner desires to obtain from the Work and shall in no way affect Contractor's independent contractor status. §1.2.4 Key Persons. Construction Manager's key personnel("Key Personnel")are named on Exhibit C—Key Personnel and Rate Schedule,which is attached hereto,and are those persons who have been assigned to the Project and who will devote a substantial amount of time in performing the obligations and responsibilities of the Construction Manager under the Construction Documents,along with Construction Manager's fixed wage and salary rates for respective classifications of personnel performing services for the Project. During the term of this Agreement,Construction Manager shall not substitute or change Key Personnel or the rates quoted therein without the Owner's prior written approval. §1.3 GENERAL CONDITIONS The General Conditions of the Contract are incorporated herein by reference as if fully set forth herein.The term "Contractor"as used in the General Conditions shall mean the Construction Manager. §1.4 STANDARD OF CARE IN PERFORMING THE WORK. Construction Manager represents and warrants to the Owner the following: (a) Construction Manager,Key Personnel,and Subcontractors are knowledgeable and experienced in providing services comparable to those necessary to complete the Work and with the needs and requirements for this type of Project; (b) Construction Manager,Key Personnel,and Subcontractors performing Work under this Agreement shall perform every part of the Work hereunder in accordance with this Agreement and Applicable Laws.It is not Construction Manager's responsibility to ascertain that the Specifications,Plans,and Drawings are in accordance with Applicable Law,but the Construction Manager shall promptly inform the Architect Inst. AIA Document A133TM—2009(formerly All 21 TMCMc—2003).Copyright m 1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 4 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3139ADA11) and Owner if Construction Manager has knowledge,recognizes,or discovers that the Specifications,Plans, Drawings or other Contract Documents,are not in accordance with Applicable Laws; (d) For purposes of this Agreement,the term"Standard of Care"shall mean the exercise of a degree of care in performing the Work in a manner consistent with the same level of care and skill exercised by knowledgeable and experienced professional construction managers competent in the construction of facilities of a similar nature and complexity in accordance with customarily accepted good and sound professional practices and procedures;and (e) Construction Manager, Key Personnel, and Subcontractors possess the skills and experience to coordinate, allocate, and manage the Work of the various trade contractors to ensure that Work as completed is fit for its intended use,frilly operational,free of latent defects,and frilly warranted. §1.5 CONSTRUCTION MANAGER SHALL BE RESPONSIBLE FOR THE PROPER PERFORMANCE OF THE WORK. Construction Manager has visited the site and examined the conditions affecting the Work and agrees that it is sufficiently familiar with the site and all observable conditions affecting the same and with the Specifications,Plans, and Drawings that Construction Manager has been able to make a sound determination of each in order for Construction Manager to bind itself to this Agreement.Construction Manager shall be responsible for the construction of the Project andthe Work based on the Specifications,Plans,and Drawings,determining the scope of all subcontracts and for all the bidding of all Work necessary for Construction Manager to complete the Work and fully perform hereunder. Construction Manager remains responsible for the complete and integrated operations of the Work notwithstanding the allocations of scopes of the Work among different trade contractors. Notwithstanding the foregoing,Construction Manager is not responsible for any unforeseen and concealed conditions that the Construction Manager did not discover or have notice prior to the start of construction without the use of physically intrusive methods provided that Construction Manager complies with the applicable General Conditions and other provisions of the Contract Documents. ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager shall perform the services described in this Article,the General Conditions,and elsewhere in the Contract Documents. At the Owner's option,the Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases shall proceed concurrently. §2.1 PRECONSTRUCTION PHASE §2.1.1 The Construction Manager's preconstruction phase responsibilities(if any)are set forth in a separate agreement concerning same. §2.1.2 LONG-LEAD TIME ITEMS. The Construction Manager shall prepare,for the Architect's review and the Owner's acceptance,a procurement schedule for items that must be ordered well in advance of construction,or in advance of reaching a final Guaranteed Maximum Price as provided herein.The Construction Manager shall expedite and coordinate the ordering and delivery of materials that must be ordered well in advance of construction. If the Owner agrees to procure any items prior to the establishment of the Guaranteed Maximum Price,the Owner shall procure the items on terms and conditions acceptable to the Construction Manager,and Owner will,to a reasonable level coordinate delivery of such items,and store such items as to be protected from theft,damage,or destruction.Upon the establishment of the Guaranteed Maximum Price,the Owner shall assign all contracts for these items to the Construction Manager and the Construction Manager shall thereafter accept responsibility for them. §2.1.3 CONSTRUCTION MANAGER'S REPRESENTATIONS In addition to other representations and warranties contained in the Contract Documents,and without limiting same,the Construction Manager represents and warrants the following to the Owner as an inducement to the Owner to execute this Agreement and the GMP Amendment(at the time the GMP Amendment is agreed to by the parties): Inst. AIA Document All 33 TM—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 5 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3139ADA11) (a) it will perform all Work called for hereunder in a good and workmanlike manner and in accordance with all legal requirements and the Contract Documents; (b) that it shall strictly comply with and satisfy all legal requirements applicable to the Construction Manager's means and methods of the Work; I (c) that it is financially solvent,able to pay its debts as they come due and possesses sufficient working capital to complete the Work and perform its obligations hereunder; (d) that it possesses the requisite level of experience and expertise in the business administration, construction,construction management,and superintendence of the projects of this size, complexity,and nature of the Project,and it will perform the Work in accordance with its Standard of Care as set forth herein; (e) that it is able to furnish the tools,materials,supplies,equipment,and labor required to complete the Work and perform its obligations hereunder; (f) that it is authorized to do business in the municipality in which the Project is located and properly licensed by all necessary governmental and public and quasi-public authorities having jurisdiction over the Project; I (g) that its execution of the Agreement(and the GMP Amendment)and its performance hereunder are within its duly authorized powers; (h) that it understand the restrictions imposed on the handling of construction payments received by the Owner pursuant to any Applicable Law and that it will fully comply with those provisions and the provisions of any applicable subcontract or purchase order in the handling of all payments made by the Owner to the Construction Manager pursuant to this Agreement; and (i) it is aware of the critical time restrictions for performance of the Work. The foregoing representations and warranties are in addition to,and not in lieu of,any and all other responsibilities and liabilities imposed upon the Construction Manager by law with respect to the Construction Manager's duties, obligations,and performance of the Work. All representations and warranties,including this section,shall survive the Final Completion of the Work or the earlier termination of this Agreement. §2.1.4 COMPLIANCE WITH LAWS The Construction Manager shall comply with Applicable Laws,as defined herein(including Prevailing Wage laws, if applicable),regulations,and special requirements of the Contract Documents regarding equal opportunity and affirmative action programs. §2.2 GUARANTEED MAXIMUM PRICE PROPOSAL AND AMENDMENTS §2.2.1 The Guaranteed Maximum Price will be established in a multiple step process. When the Construction Documents are thirty percent(30%)complete,the Construction Manager will propose a GMP Proposal("GMP Proposal No. 1")in a form reasonably required by the Owner. GMP Proposal No. 1 will include the following: (a) a statement of the Guaranteed Maximum Price,which shall include the Cost of the Work(organized by trade categories or systems or other method as may be requested by Owner),the Construction Manager's Fee,the Construction Manager's lump sum general conditions costs,the Construction Manager's Contingency(as defined in Section 2.2.10 below),and a deductive amount for any savings incurred for bought-out,completed,or partially completed Work included in any duly executed Work Authorization Amendments approved prior to establishing the Guaranteed Maximum Price; (b) a list of any clarifications and assumptions upon which the Guaranteed Maximum Price is predicated; and snit. AIA Document A133TM—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 6 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3139ADA11) (c) the date for Critical Milestones,Substantial Completion of the entire Work,and Final Completion of the entire Work. Upon presentation of GMP Proposal No. 1,the Owner shall,with reasonable promptness,exercise one of the following three options: (1)accept the GMP Proposal by executing an amendment("GMP Amendment No. V); (2) reject the GMP Proposal—in which case the Owner shall only be responsible for payment for the Construction Manager's preconstruction services(through separate agreement)and any work performed in accordance with any duly approved and authorized Work Authorization Amendment;or(3)enter into negotiations with the Construction Manager and ultimately either accept or reject a revised GMP Proposal. §2.2.2 To the extent that the Drawings and Specifications are anticipated to require further development by the Architect,the Construction Manager shall provide in the Guaranteed Maximum Price for such further development consistent with the Contract Documents and reasonably inferable therefrom. Such further development does not include such things as changes in scope,systems,kinds and quality of materials,finishes or equipment,all of which, if required,shall be incorporated by Change Order. In any GMP Proposals,the Construction Manager shall also identify which Drawings and Specifications the Construction Manager contends will require revision in order to reflect the Construction Manager's proposed assumptions and clarifications. §2.2.3 When the Construction Documents are 100%complete,the Construction Manager shall carefully study and evaluate for the purpose of establishing the GMP the design and documents and with reasonable promptness,but not more than 90 days,shall conduct a final scope review and buy-out of each of the major trade Subcontractors.The Owner shall participate in the scope review and buy-out process and may also direct the Architect to participate as well.Based on the final buy-out prices,the Construction Manager shall submit a GMP Proposal("GMP Proposal No.2").The GMP Proposal No.2 will include items listed in Section 2.2.1 and 2.2.2,but shall also include a list of allowances or unit prices;and a list of the documents and their revision dates upon which the GMP Proposal No.2 is based. Upon presentation of GMP Proposal No.2,the Owner shall,with reasonable promptness,exercise one of the following three options: (1)accept the GMP Proposal No.2 by executing an amendment regarding same;(2)reject the GMP Proposal No.2;or(3)enter into negotiations with the Construction Manager and ultimately either accept or reject a revised GMP Proposal No.2. §2.2.4 Upon acceptance of a GMP Amendment No. 1,the Owner may,in writing,direct the Construction Manager to begin specified portions or phases of the Work.Construction Manager shall not incur Costs of the Work without the Owner's prior written approval. In the time between GMP Proposal No. I and GMP Proposal No.2, In the event that the Owner rejects the GMP Proposal No.2 and no amendment is entered into regarding same,the Owner shall either:(1)pay the Construction Manager the Cost of the Work incurred to date and Fee thereon incurred with the Owner's prior approval,but the Owner shall have no further liability to the Construction Manager;or(2)elect in writing to proceed with the Project under the GMP Amendment No. 1. §2.2.5 The Construction Manager shall meet with the Owner and Architect to review the Guaranteed Maximum Price Proposal(s).In the event that the Owner and Architect discover any inconsistencies or inaccuracies in the information presented,they shall promptly notify the Construction Manager,who shall make appropriate adjustments to the Guaranteed Maximum Price Proposal, its basis,or both. §2.2.6 Owner shall be entitled to full access to all details of the process of developing the GMP Proposals. It is the intent of this Agreement that allowances,assumptions,clarifications,and other loose elements that could lead to change orders after any Guaranteed Maximum Price is determined to be held to a minimum. §2.2.7 The Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work prior to the commencement of the Construction Phase,unless the Owner provides prior written authorization for such costs. §2.2.8 The Owner shall authorize the Architect to provide the revisions to the Drawings and Specifications to incorporate the agreed-upon assumptions and clarifications contained in any Guaranteed Maximum Price Amendment.The Owner shall promptly furnish those revised Drawings and Specifications to the Construction Init. AIA Document A133 TM—2009(formerly All 21 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 7 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (369ADA11) Manager as they are revised.The Construction Manager shall notify the Owner and Architect of any inconsistencies between the Guaranteed Maximum Price Amendment and the revised Drawings and Specifications. I §2.2.9 To the extent any sales,rental,or use of labor,equipment or materials for the Project are subject to sales or use tax under Applicable Law,the Construction Manager shall include in the Guaranteed Maximum Price all sales, consumer,use and similar taxes for the Work provided by the Construction Manager that are legally enacted, whether or not yet effective,at the time the Guaranteed Maximum Price Amendment is executed. Construction Manager acknowledges that the Work is tax exempt. Construction Manager shall perform the Work and administer the Contract in a manner in which maintains the tax exempt status of the Work.Owner shall provide tax exempt certificates and specify the Work which is tax exempt. §2.2.10 CONSTRUCTION MANAGER'S CONTINGENCY. Any GMP Proposal shall contain the Construction Manager's Contingency as part of the Guaranteed Maximum Price(the"Construction Manager's Contingency"). The Construction Manager's Contingency shall be made available by Owner,only upon prior written approval by Owner,for use by the Construction Manager to cover increases in the cost of the Work incurred by Construction Manager for unforeseen causes or details not reasonably anticipated by the Construction Manager at the time of the execution of this Agreement,such as increases in bid or negotiated contracts.Construction Manager's Contingency is not intended for changes in the scope of the Work or for reimbursement of expenses and costs not otherwise recoverable as Cost of the Work under Article 6 of this Agreement,such as originating from further development of the Construction Documents after GMP Proposal No.2(as defined herein)and such corresponding Amendment, increased Costs of the Work that do not result from an Owner-change order,cost overrun,any additional costs due to Unexcused Delays,or to employ Corrective Measures as may be required of Owner pursuant to Section 8.2.4 of the General Conditions,or costs caused by defaults by Subcontractors that are not recoverable from the Subcontractor or its insurer or surety,including costs of correcting defective work or the warranty work.The Construction Manager's Contingency shall not be available for Owner-initiated changes to the Construction Documents unless mutually agreed upon by Owner and Construction Manager.The Construction Manager shall not earn a Fee on unused Contingency.The Construction Manager shall not be entitled to additional General Conditions Costs,unless mutually agreed upon by Owner and Construction Manager. The Construction Manager shall maintain records detailing the use of the Construction Manager's Contingency after Owner's approval and shall make those available for the Owner's review upon request and shall submit the records with the monthly payment application. The Owner shall have the right to approve or reject any expenditure from the Construction Manager's Contingency in its sole reasonable discretion,subject only to the Construction Manager's rights under the disputes resolution provisions of this Agreement. Construction Manager's Contingency:three percent(3%)of the estimated Cost of the Work component of the Guaranteed Maximum Price(without such Contingency)as initially established and set forth in the GMP Amendment(s). Sums may be charged to the Construction Manager's Contingency only to the extent that the same have been paid or are to be actually paid by Construction Manager. Notwithstanding anything in the Contract Documents to the contrary,no charge shall be made against the Construction Manager's Contingency without the prior written approval of the Owner. §2.2.11 After execution of the GMP Amendment No.2,the GMP will be modified only for Owner-initiated changes or other circumstances specifically authorized by this Agreement. §2.2.12 Some phases of the Work may be ready for construction before it is appropriate to arrive at an overall Guaranteed Maximum Price for the entire Project.If the Owner elects to proceed with any packages of the Work before the parties arrive at an overall Guaranteed Maximum Price,the Construction Manager shall develop proposals for any phases of the Work identified by the Owner. §2.2.13 Until a Guaranteed Maximum Price for the entire Project has been established and accepted by the Owner through a duly executed GMP Amendment,the Construction Manager and Owner agree to use a work authorization amendment("Work Authorization Amendment")in a mutually acceptable format to authorize work to begin snit. AIA Document All 33TM—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® $ Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3139ADA11) based on a specified scope and a specified"not to exceed"price.The price and the scope of Work identified with each previously approved Work Authorization Amendment will be included in the Guaranteed Maximum Price at the time the Contract Documents are sufficiently complete to establish the Guaranteed Maximum Price.Prior to the Owner's acceptance of the Guaranteed Maximum Price for the entire Work,Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work for Construction Phase services,except as the Owner may specifically authorize in an executed Work Authorization Amendment as required herein. §2.2.14 Except as otherwise agreed by Owner and Construction Manager,when a GMP Proposal for any portion of the Work is agreed upon by the parties pursuant to a Work Authorization Amendment,the Guaranteed Maximum Price amounts for those portions which have been previously approved by the Owner shall be combined and shall be used in pricing those portions of the Work covered by such Guaranteed Maximum Price proposals,and all separate Guaranteed Maximum Price proposals previously agreed to by the parties shall be of no further force and effect. § 2.2.15 In submitting the GMP Proposal,the Construction Manager represents that it will provide every item,system,or element of Work that is identified,shown or specified in the GMP Proposal or the supporting documents,along with all necessary or ancillary materials and equipment for their complete operating installation,unless specifically excepted by the Owner. Upon Owner's acceptance of the GMP Proposal,the Construction Manager shall not be entitled to any increase in the Guaranteed Maximum Price due to the continued refinement of the Construction Documents or the absence or addition of any detail or specification that may be required in order to complete the construction of the Project or applicable Work package,except as expressly qualified in the GMP Amendment. §2.2.16 As GMP Amendment and Guaranteed Maximum Price are referenced herein,GMP Amendment shall mean the GMP Amendment with the latest date which was duly executed by the parties and made a modification of this Agreement,and Guaranteed Maximum Price shall mean the not to exceed value in the GMP Amendment. §2.3 CONSTRUCTION PHASE §2.3.1 GENERAL. The Construction Phase shall commence on the Owner's issuance of a Notice to Proceed. If the Owner directs the Construction Manager to commence only some portion(s)of the construction,the Construction Manager shall only enter into those subcontracts and purchase orders necessary for the directed work and shall proceed with the limited portion of construction. §2.3.2 ADMINISTRATION §2.3.2.1 It is the intent of this Agreement that as many as possible of the elements of the Project be subject to vigorous competition. Except as otherwise approved by Owner in advance in writing,all Subcontracts(including purchase orders)shall be awarded pursuant to competitive bids. (a) If the Construction Manager intends to bid Work by its own forces("Self-Perform Work"),other than supervision of the Work,or through an affiliated or related party(as defined herein),Construction Manager shall notify Owner in writing of such intent and how the bid pricing shall be obtained. Construction Manager must obtain Owner's prior written approval prior to the solicitation of bids. If approved,Construction Manager must competitively bid against no less than three(3)trade contractors (when feasible). All bids, including Construction Manager's bid,shall be submitted directly to Owner and shall be opened by Owner.Construction Manager must submit its bid to Owner no less than 24 hours in advance of when other bids are due. I (b) The Construction Manager shall not subcontract out general conditions,supervision of the entire Work,or project management of the entire Work. (c) The Construction Manager shall obtain bids from Subcontractors and from suppliers of materials or equipment fabricated especially for the Work and shall deliver such bids to the the Owner,along with its recommendations concerning such bids. The Owner may designate specific persons from whom,or entities from which,the Construction Manager shall obtain bids;however the Construction Manager shall be entitled to obtain bids from other qualified bidders.The Construction Manager shall endeavor to obtain at least three(3)bids for each subcontract(except for purchase orders aggregating less than$50,000.00 in connection with the Project)and in no case less than two(2)from parties not affiliated with or related to the Construction Manager. Init. AIA Document A133 TM—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 9 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3139ADA11) (d) For the purpose of this subparagraph,"affiliate"or"related party" is any entity controlling, controlled by,or under common control with Construction Manager,or any entity in which any officer, director,member,employee,partner,or shareholder of the Construction Manager,or any member of such person's immediate family has a direct or indirect interest.The Construction Manager shall not accept any bid without the Owner's prior written approval.The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection. I (e) If a specific bidder among those whose bids are delivered by the Construction Manager to the Owner and Architect(1)is recommended to the Owner by the Construction Manager,(2)is qualified to perform that portion of the Work,and(3)has submitted a bid that conforms to the requirements of the Contract Documents without reservations or exceptions,but the Owner requires that another bid be accepted,then the Construction Manager may require that a Change Order be issued to adjust the Contract Time and the Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to the Owner by the Construction Manager and the amount and time requirement of the subcontract or other agreement actually signed with the person or entity designated by the Owner. (f) Subcontracts and agreements with suppliers at all tiers shall conform generally to the payment provisions in Sections 7.1.8 and 7.1.9 of this Agreement and the terms regarding payments contained in the General Conditions, and shall not be awarded on the basis of cost plus a fee without the prior consent of the Owner.If upon Owner approval,the Subcontract is awarded on a cost plus fee basis,the Construction Manager shall provide in the Subcontract for the Owner to receive the same audit rights with regard to the Subcontractor as the Owner receives with regard to the Construction Manager in Section 6.11 below. (g) If the Construction Manager recommends a specific bidder that may be considered a"related party"or "affiliate"according to this Section,then the Construction Manager shall promptly notify the Owner in writing of such relationship and notify the Owner of the specific nature of the contemplated transaction. §2.3.2.2 The Construction Manager shall schedule and conduct weekly meetings or at a frequency reasonably specified by the Owner,at which the Owner,Architect,Construction Manager,and appropriate Subcontractors can discuss the status of the Work..The Construction Manager shall prepare and distribute meeting minutes to the Owner and Architect within five(5)days of the meeting,which shall be subject to the Owner's and Architect's review and comment. §2.3.2.3 As part of the GMP Proposals the Construction Manager shall prepare and submit to the Owner and Architect a construction schedule for the Work consistent with the requirements of the Contract Documents,and submittal schedule in accordance with Sections 2.3.2 and 3.10 of the General Conditions. §2.3.2.4 The Construction Manager shall record the progress of the Project.On a monthly basis,or otherwise as agreed to by the Owner,the Construction Manager shall submit written progress reports to the Owner and Architect, showing percentages of completion and other information required by the Owner as set forth in this Agreement.The monthly reports shall include,but not be limited to,the following: (a) Daily Log. The Construction Manager shall maintain,and make available to the Owner and Architect upon request,a daily log containing a record for each day of weather,portions of the Work in progress, Subcontractors working on site,number of workers on site,identification of equipment on site,problems that might affect progress of the work,accidents,injuries,and other relevant information that Owner may reasonably require. (b) Shop Drawing Schedule. The Construction Manager shall develop a schedule for submittal and review of Submittals and Shop Drawings,product data,and samples,with input from Owner and Architect.The schedule shall show dates for submission and subsequent review by all necessary parties and shall be coordinated with the Schedule and Critical Milestones.The Construction Manager shall update the Submittal/Shop Drawing schedule weekly and submit to Owner for its review. (c) Change Order/Change Order Request Log. The Construction Manager shall maintain a Change Order and Change Order Request log for the purpose of tracking and recording all Change Orders and Change Init. AIA Document A133TM—2009(formerly All 21 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 10 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3139ADA11) Order Requests(Owner requested changes,Design requested changes,the Construction Manager requested changes,field requested changes,etc.)whether they have a cost/schedule impact or not.At a minimum,this log shall contain: (i) Change Order Number; (ii) Description of Change; (iii) Nature of Change; (iv) Date Requested; (v) Initiator; (vi) Subcontractor impact report; (vii) Date Review by the Architect; (viii) Date reviewed by Construction Manager; (ix) Cost Implication of the Change; (x) Schedule Implication of the Change; (xi) Description of Other Potential Impact to Project;and (xi) Date Approved or Disapproved by Owner. As part of the requirements for Final Completion,the Change Order Log shall be delivered to the Owner. I (d) Request for Information("RFI")Log. The Construction Manager shall maintain an RFI Log for the purpose of tracking and recording all RFIs. At a minimum,this log shall contain: I (i) RFI number; (ii) Description; (iii) Date Requested; (iv) Initiator; (v) Specification,Drawing(Sheet No.or Detail)Referenced; (vi) Schedule and/or Cost Impacts; (vii) Subcontractor Impacts; (viii) Date Answered;and (ix) Priority. (e)Material and Equipment Procurement Log. The Construction Manager shall maintain and regularly update a schedule for the purchase and delivery of materials and equipment requiring long-lead time procurement. The Construction Manager shall expedite and coordinate delivery of these purchases. The Construction Manager shall include in its weekly progress reports a status log of long-lead time items. (fl Safety Report. The Construction Manager shall develop,implement,and maintain jobsite safety,training and protocol programs.At all times during the course of the Project and the Work,the Construction Manager shall be responsible for the overall safety of the site. Accordingly,the Construction Manager shall maintain records of meetings,inspections,and incidents.The Construction Manager shall maintain an accurate record of all accidents and incidents relating to work performed under this Agreement resulting in death,injury,occupational disease,or damage to property,materials,supplies,or equipment.The Construction Manager shall provide Owner copies of all accident reports filed with federal,state,and local governmental agencies and such additional data as may be requested by Owner. The Construction Manager shall maintain accurate records related to safety at the site,and provide a monthly report regarding same to Owner,including but not limited to the following: (i) Man-hours for reporting period; (ii) Total man-hours worked for the Project to date; (iii) Recordable injuries and lost work days;and (iv) Identify any hazards or discrepancies. §2.3.2.5 The Construction Manager shall develop a system of cost control for the Work, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes.The Construction Manager shall identify variances between actual and estimated costs and report the variances to the Owner and Architect and shall provide this information in its monthly reports to the Owner and Architect. Init. AIA Document A133 TM—2009(formerly All 21 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 11 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3139ADA11) §2.4 CONSTRUCTION MANAGER SHALL REMEDY DEFECTIVE WORK §2.4.1 The Construction Manager represents and warrants that the Work shall be(1)free from all defects; (2) conform to the requirements as set forth in the Specifications,Plans,and Drawings;and(3)comply with Applicable Law with regard to the means and methods of construction and Construction Manager's scope of Work. Work not conforming to these requirements, including substitutions not properly approved and authorized,may be considered defective Work at Owner's sole and reasonable discretion. §2.4.2 All defective Work shall be taken down,removed,and replaced with work of a quality required by the Contract Documents,without an increase in the Guaranteed Maximum Price or Construction Manager's Fee, whether observed before Substantial Completion of the Work and whether or not fabricated,installed,or completed. The Construction Manager shall bear all costs of correcting defective work,including but not limited to additional testing and inspections,compensation for the Architect's services or another design professional's services,and costs and expenses made necessary by the defective work. If the defective Work has not been cured within a reasonable time period to be mutually determined by the parties,Owner shall have the right,on five(5)days written notice to the Construction Manager,to remove or cause to be removed all defective Work or materials,and to have the Work or material corrected and the Construction Manager shall be obliged to pay to Owner all expenses so incurred.If Owner removes the unsatisfactory Work,Owner may deduct from any future payments to the Construction Manager due under this Agreement the amounts so expended by Owner.If Owner does not deduct such amounts and the Construction Manager fails to pay all unpaid amounts on Owner demand,recourse may be made immediately to any applicable bonds. Construction Manager shall not use its Contingency to pay for such costs under this Section 2.4 unless expressly approved by Owner in writing. Costs incurred due to defective work are not otherwise reimbursable. §2.5 CONSTRUCTION MANAGER SHALL REACH SUBSTANTIAL COMPLETION TIMELY. §2.5.1. Time is of the essence. At all times during this Project,time is of the essence for Construction Manager's performance of the Work. §2.5.2. Liquidated Damages. The parties acknowledge that if the Construction Manager is not able to achieve the Critical Milestones,if any,or Substantial Completion(as defined in General Conditions Section 9.8)by the dates set forth in the GMP Amendment,as said dates may be modified from time to time in strict accordance with the provisions of the Contract Documents,then the Owner will suffer damages as a result.The parties further acknowledge that it is difficult at this time to determine with precision those damages and that the parties desire to provide for liquidated damages as the sole and exclusive remedy in lieu of actual,or any other type of,damages in the event that the Construction Manager is not able to achieve the Critical Milestones or Substantial Completion by the date required("Liquidated Damages").Construction Manager agrees to pay to Owner,as liquidated damages and not as a penalty,the sum set forth in the table included in Exhibit D—Liquidated Damages Schedule,which is attached hereto,per calendar day for each calendar day after the date for the Critical Milestone or Substantial Completion until such time as the Construction Manager achieves the Critical Milestone or Substantial Completion. Notwithstanding this provision,the Construction Manager shall meet the Critical Milestone or the date of Substantial Completion and cannot choose merely to accept liquidated damages even if such damages will be less than the cost of acceleration to meet the respective date(s). The Liquidated Damages for the Critical Milestones and Substantial Completion are cumulative. Nonetheless,in the event that the Construction Manager is responsible for Liquidated Damages for failing to meet one or more Critical Milestones,but nonetheless achieves Substantial Completion by the required date and the Construction Manager is not otherwise in default of its obligations under the Contract Documents,the Owner may,in its discretion,waive liquidated damages for the Critical Milestones. §2.6 BUILDING INFORMATION MODELING. The Construction Manager(including all of its Subcontractors)shall utilize state of the art technology in all phases of the Work as part of the Guaranteed Maximum Price.This includes, without limitation,building information modeling for real time dynamic building modeling in 3D for all components of the Work("BIM").The Construction Manager shall cooperate with the Architect in the preparation and completion of the models. §2.7 Construction Manager shall instruct Owner and its operating personnel in the proper use,maintenance,and emergency repair of all systems and equipment at the time of Substantial Completion and before final acceptance of Init. AIA Document A133TM—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 2 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3139ADA11) the Work by the Owner. Contractor shall call particular attention to safety measures that should be followed during operation of any such systems or equipment. ARTICLE 3 OWNER'S RESPONSIBILITIES §3.1 INFORMATION AND SERVICES REQUIRED OF THE OWNER §3.1.1 The Owner and Construction Manager shall discuss and address the Owner's requirements and expectations for the Project,including Owner's objectives,constraints,and criteria,including schedule,space requirements and relationships,flexibility and expandability,special equipment,systems,sustainability and site requirements. §3.1.2 Owner's Evidence of Financial Arrangements. The Construction Manager may request in writing that the Owner provide reasonable evidence that the Owner has made financial arrangements to fulfill the Owner's obligations under the Contract in accordance with Chapter 56 of the Texas Business and Commerce Code. Thereafter,the Construction Manager may only request such evidence if the Owner fails to make payments to the Construction Manager as the Contract Documents require.Construction Manager shall keep any information provided by Owner under this provision confidential,whether or not such information is specifically marked "Confidential"and prevent disclosure to any third-party. To the extent that the information provided by Owner pursuant to this provision is permitted to be provided to any Subcontractor on the Project,Construction Manager shall(1)require the Subcontractor to comply with Exhibit I of this Agreement in the Subcontract and attachment of Exhibit I to its Subcontract,and(2)require Subcontractor to sign a Non-disclosure Agreement in a form acceptable to the Owner. Notwithstanding the foregoing,any and all information provided under this clause is subject to the provisions of Exhibit I,it being the intent of this Agreement that whichever provisions are more strict shall control. §3.1.3 The Owner shall establish and periodically update the Owner's budget for the Project based upon consultation with the Construction Manager and Architect. §3.1.4 Structural and Environmental Tests,Surveys and Reports.Upon reasonable and specific request by the Construction Manager,the Owner shall furnish information or services under the Owner's control and relevant to the Construction Manager's performance of the Work with reasonable promptness so as not to delay the progress of the Work after receiving the Construction Manager's written request for such information or services and details as to the time by which Owner's response is required.The Construction Manager shall be entitled to rely on the accuracy of information and services furnished by the Owner but shall exercise proper precautions relating to the safe performance of the Work §3.1.4.1 The Owner shall furnish tests, inspections and reports required by law and as otherwise agreed to by the parties,such as structural,mechanical,and chemical tests,tests for air and water pollution,and tests for hazardous materials. §3.1.4.2 The Owner shall furnish surveys describing physical characteristics,legal limitations and utility locations for the site of the Project,and a legal description of the site. The surveys and legal information shall include,as applicable,grades and lines of streets,alleys,pavements and adjoining property and structures;designated wetlands; adjacent drainage;rights-of-way,restrictions,easements,encroachments,zoning,deed restrictions,boundaries and contours of the site; locations,dimensions and necessary data with respect to existing buildings,other improvements and trees;and information concerning available utility services and lines,both public and private,above and below grade,including inverts and depths.All the information on the survey shall be referenced to a Project benchmark. §3.1.4.3 The Owner,when such services are requested,shall furnish services of geotechnical engineers,which may include but are not limited to test borings,test pits,determinations of soil bearing values,percolation tests, evaluations of hazardous materials,seismic evaluation,ground corrosion tests and resistivity tests,including necessary operations for anticipating subsoil conditions,with written reports and appropriate recommendations. §3.1.4.4 During the Construction Phase,the Owner shall furnish information or services required of the Owner by the Contract Documents with reasonable promptness. The Owner shall also furnish any other information or services under the Owner's control and relevant to the Construction Manager's performance of the Work with reasonable promptness so as not to cause delay in the progress of the Work after receiving the Construction Manager's written request for such information or services and details as to the time by which Owner's response is required. The Init. AIA Document A133TM—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 13 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3139ADA11) Construction Manager shall be entitled to rely on the accuracy of information and services furnished by the Owner but shall exercise proper precautions relating to the safe performance of the Work. §3.2 OWNER'S DESIGNATED REPRESENTATIVE The Owner shall identify a representative authorized to act on behalf of the Owner with respect to the Project.The Owner's Designated Representative shall render decisions promptly and furnish information expeditiously,so as to avoid unreasonable delay in the services or Work of the Construction Manager.Except as otherwise provided in Section 4.2.1 of the General Conditions,the Architect does not have such authority.The term"Owner"means the Owner or the Owner's authorized representative. §3.3 ARCHITECT The Owner has retained an Architect to provide services,duties and responsibilities with regard to the design of the Project..Upon request of the Construction Manager,Owner shall provide the Construction Manager a copy of the executed agreement between the Owner and the Architect,and any further modifications to the agreement. ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES §4.1 Compensation §4.1.1 Compensation for the Construction Manager's preconstruction phase services,if any,is set forth in a separate agreement. ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES The Owner shall pay the Construction Manager for the Construction Phase Services as follows: §5.1 COMPENSATION For the Construction Manager's proper performance of the Work as described in the Contract Documents,the Owner shall pay the Construction Manager in current funds,and amount which shall not exceed the Guaranteed Maximum Price,as set forth herein. The Contract Sum is the Cost of the Work as defined in Section 6.1.1 plus the Construction Manager's Fee. §5.1.1 The Construction Manager's Fee,except as limited by the Guaranteed Maximum Price,shall be 2.75%of the Cost of the Work(as defined herein below)actually incurred by the Construction Manager in the performance of the Work. Notwithstanding the provisions set forth in Section 5.1.3 below,Construction Manager shall be entitled to earn its Fee on approved Change Orders. §5.1.2 For authorized changes in the Work that result in an increase or decrease in the Guaranteed Maximum Price, the Construction Manager's Fee shall be increased or decreased accordingly. The Construction Manager's Fee shall be the Construction Manager's complete fee compensation(which includes Construction Manager's profit and indirect overhead)and,together with the payment for the Cost of the Work for those costs which are expressly set forth in Sections 6.1 through 6.7 of this Agreement,shall constitute Construction Manager's sole reimbursement for indirect and direct costs and expenses,general conditions,and profit arising from or attributable to the performance of the Work as described herein. Init. AIA Document A133TM—2009(formerly A121 TMCMc—2003).Copyright @)1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 14 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3139ADA11) §5.1.3 Limitations,if any,on a Subcontractors' reimbursable costs,as well as overhead and profit for changes in the cost of its portion of the Work are,except as otherwise expressly approved in writing by Owner,as provided in Exhibit E-"Change Order Pricing",and as follows: I Subcontractor's combined markup for overhead and profit on additive Work shall not exceed twelve percent(12%) of the actual direct cost of the additional Work that such Subcontractor self performs. IIf any lower-tier subcontractor performs part or all of the additional Work,then such lower-tier subcontractor shall only be entitled overhead and profit not to exceed twelve percent(12%)of the actual direct cost of the additional Work. Subcontractor shall be entitled to a maximum of five(5%)percent mark-up on lower-tier subcontractor Work. The total combined mark-up for Subcontractor and lower-tier subcontractor shall not exceed seventeen (17%)percent. For any deductive adjustment to the Guaranteed Maximum Price for a change in the Work, Subcontractor's Overhead and Profit will be marked-down at the same percentage and on the same basis as mark-ups for increases as provided above. §5.2. GUARANTEED MAXIMUM PRICE §5.2.1 The sum of the Cost of the Work,Construction Manager's lump sum general conditions costs as set forth in Exhibit F—General Conditions Costs,which is attached hereto,and the Construction Manager's Fee(as set forth in Section 5.1.1 above)is guaranteed by the Construction Manager not to exceed the amount set forth in the GMP Amendment subject only to additions and deductions by Change Order properly approved and executed as provided in the Contract Documents. Costs that would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Construction Manager without reimbursement by the Owner. Such maximum"not to exceed"value as adjusted by approved changes in the Work is referred to in the Contract Documents as the"Guaranteed Maximum Price"or "GMP." §5.2.2 Savings Treatment. Savings,which shall be defined herein as when the sum of the total,reimbursable Cost of the Work incurred by the Construction Manager and the total Construction Manager's Fee is less than the Guaranteed Maximum Price, will be shared 75%to Owner 25%to Construction Manager payable to Construction Manager upon completion of the Work. The Owner shall pay the Construction Manager its share of the Savings as part of the Construction Manager's final Application for Payment following Final Completion;however,Owner shall not be obligated to pay such share of any Savings to the extent(1)this Contract is not delivered in accordance with the Contract Time,(2)is terminated prior to Substantial Completion for the non-performance of Construction Manager;(3)if Construction Manager is in material breach of any provision of this Agreement;or(4)any fraud or negligence by Construction Manager. Notwithstanding the foregoing,for the purposes of determining Shared Savings,any unused allowances shall not be part of the Shared Savings and the final Guaranteed Maximum Price shall be reduced accordingly. §5.3 CHANGES IMPACTING GUARANTEED MAXIMUM PRICE §5.3.1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work may be determined by any of the methods listed in Subparagraph 7.1.3 and 7.1.4 of the General Conditions. §5.3 Changes in the Work §5.3.1 The Owner may,without invalidating the Contract,order changes in the Work within the general scope of the Contract consisting of additions,deletions or other revisions.The Owner shall issue such changes in writing in accordance with Article 7 of the General Conditions.The Construction Manager shall be entitled to an equitable adjustment in the Contract Time as a result of changes in the Work only as provided in the Contract Documents and subject to the requirements thereof, including the timely notice requirements applicable portions of Section 4.3. snit. AIA Document A133 TM—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 15 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (369ADA11) §5.3.2 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to the execution of the GMP Amendment may be determined by any of the methods listed in Section 7.3.3 of the General Conditions of the Contract for Construction. §5.3.3 In calculating adjustments to subcontracts(except those awarded with the Owner's prior written consent on the basis of cost plus a fee),the terms"cost"and"fee"and"mark-up"as used in Section 7.3.3.3 of the General Conditions and the term"costs"and a reasonable allowance for overhead and profit,which all combined shall be no more than the agreed upon percentage set forth in Section 5.1.3,as used in Section 7.3.7 of the General Conditions shall have the meanings assigned to them in General Conditions.Adjustments to subcontracts awarded with the Owner's prior consent on the basis of cost plus a fee shall be calculated in accordance with the terms of this Agreement,unless the Owner has furnished the Construction Manager with prior written approval of the form and substance of a subcontract,in which case such adjustments shall be calculated in accordance with the terms and conditions of that subcontract. §5.3.4 In calculating adjustments to the Guaranteed Maximum Price,the terms"cost"and"costs"as used in the above-referenced provisions of General Conditions shall mean the Cost of the Work as defined in Sections 6.1 to 6.7 of this Agreement and the term"fee"shall mean the Construction Manager's Fee as defined in Section 5.1 of this Agreement. I §5.3.5 Notwithstanding the foregoing in this Section 5.3,no change in the Construction Manager's Fee or overhead will be allowed for any additive or deductive change orders except as specifically provided for in this Agreement. §5.3.6 Except as otherwise expressly provided herein or in the GMP Amendment,in calculating an adjustment to the Guaranteed Maximum Price for a change in the Work resulting in a change to the Construction Manager's onsite overhead and administrative expense,including Construction Manager's General Conditions Costs,such adjustment shall be based upon the actual estimated increase or reduction of such costs rather than a percentage or otherwise pre-determined mark-up or mark-down. I ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE I §6.1 COSTS TO BE REIMBURSED §6.1.1 The term"Cost of the Work"shall mean costs necessarily incurred by the Construction Manager in the proper performance of the Work. Such costs shall be at rates not higher than the standard paid at the place of the I Project except with prior written consent of the Owner.The Cost of the Work shall include only the items expressly permitted in Article 6. §6.1.2 Where any cost is subject to the Owner's prior approval,the Construction Manager shall obtain this approval in writing prior to incurring the cost.The parties shall endeavor to identify any such costs prior to executing Guaranteed Maximum Price Amendment. §6.2 Labor Costs §6.2.1 Wages and salaries of construction workers directly employed by the Construction Manager to perform the construction of the Work at the site(for such Work that Construction Manager is authorized to perform through its personnel,other than Self-Perform Work)or,with the Owner's prior written approval,at off-site workshops,and only to the extent such workers are actually performing Work directly related to the Project. §6.2.2 Wages and salaries of the Construction Manager's supervisory and administrative personnel when stationed at the site with the Owner's prior approval. Such rates shall not exceed those set forth on Exhibit C,unless approved in in advance in writing by Owner. §6.2.3 Wages and salaries of the Construction Manager's supervisory or administrative personnel engaged at factories,workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work,but only for that portion of their time required for the Work. Such rates shall not exceed those set forth on Exhibit C,unless approved in advance in writing by Owner. §6.2.4 Costs paid or incurred by the Construction Manager for taxes,insurance,contributions,assessments and benefits required by law or collective bargaining agreements and,for personnel not covered by such agreements,and Init. AIA Document All 33TM—2009(formerly All 21 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 16 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (369ADA11) all other employee benefits such as sick leave,medical and health benefits,holidays,vacations and pensions,for such employees based upon wages or salaries reimbursable as Cost of the Work pursuant to Sections 6.2.1 through 6.2.3 above shall be included in the fixed wage or salary rates as set forth in Exhibit C attached hereto. Such wage or salary rates(including markups for benefits)for the respective classification of personnel performing Work or services hereunder are agreed upon and fixed as set forth in Exhibit C and such rates are not subject to audit. However,the time chargeable to the Project hereunder for such employees or that portion of the wages allocable to the Cost of the Work are subject to audit. §6.2.5 Bonuses,profit sharing,incentive compensation and any other discretionary payments paid to anyone hired by the Construction Manager or paid to any Subcontractor or vendor,with the Owner's prior written approval. §6.3 Subcontract Costs I Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts properly entered into in accordance with the requirements of the Contract Documents. §6.4 Costs of Materials and Equipment Incorporated in the Completed Construction §6.4.1 Costs,including transportation and storage,of materials and equipment incorporated or to be incorporated in I the completed construction;provided,that such materials and equipment are obtained pursuant to the terms of the Contract Documents. §6.4.2 Costs of materials described in the preceding Section 6.4.1 in excess of those actually installed but required to provide reasonable allowance for waste and spoilage.Unused excess materials,if any,shall be properly stored and protected during performance of the Work and handed over to the Owner at the completion of the Work or,at the Owner's option,shall be sold by the Construction Manager.Any amounts realized from such sales shall be credited to the Owner as a deduction from the Cost of the Work. §6.5 Costs of Other Materials and Equipment,Temporary Facilities and Related Items §6.5.1 Costs of transportation,storage,installation,maintenance,dismantling and removal of materials,supplies, temporary facilities,machinery,equipment and hand tools not customarily owned by construction workers that are provided by the Construction Manager at the site and fully consumed in the performance of the Work.Costs of materials,supplies,temporary facilities,machinery,equipment and tools that are not fully consumed shall be based on the cost or value of the item at the time it is first used on the Project site less the value of the item when it is no longer used at the Project site.Costs for items not fully consumed by the Construction Manager shall mean fair market value. Notwithstanding the foregoing,any items used but not consumed,which are paid for by the Owner shall,at the Owner's option,become the property of the Owner and shall be delivered to the Owner upon completion of the Work in accordance with instructions furnished by the Owner. I §6.5.2 Rental charges for Construction Manager-owned or leased vehicles assigned to those personnel defined in Section 6.2.1 and 6.2.2 above,temporary facilities,machinery,equipment and hand tools not customarily owned by construction workers that are provided by the Construction Manager at the site and costs of transportation, installation,minor repairs,dismantling and removal thereof..Rates of Construction Manager-owned equipment and quantities of equipment shall be in keeping with industry standards In no event shall the Construction Manager be entitled to reimbursement for any cumulative total of rental charges in connection with any single piece of machinery or equipment in excess of eighty percent(80%)of its fair market value as of the date that such machinery or equipment is first put into service in connection with the Work. The Construction Manager shall pay,without reimbursement,any such excess rental charges. §6.5.3 Costs of removal of debris from the site of the Work. §6.5.4 Costs of document reproductions,facsimile transmissions and long-distance telephone calls,postage and parcel delivery charges,telephone service at the site and reasonable petty cash expenses of the site office. §6.5.5 That portion of the reasonable expenses of the Construction Manager's supervisory or administrative personnel incurred while traveling in discharge of duties connected with the Work.Provided,however,that daily travel to and from the Project site is not considered reimbursable travel. The amount included in the Cost of Work with respect to automobile travel expenses shall be based on the mileage allowance permitted for ordinary and necessary business deduction under Section 162 of the Internal Revenue Code of 1986,as amended. Init. AIA Document A133Tm—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 17 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3139ADA11) §6.5.6 Costs of materials and equipment suitably stored off the site at a mutually acceptable location,subject to the Owner's prior approval and requirements of Lender,if any,and Owner,including but not limited to providing Owner with photographs of all materials received and stored,copies of bills of sale, insurance coverage in place for materials stored offsite,and protecting materials from theft or damage. §6.6 Miscellaneous Costs §6.6.1 The actual cost of premiums for that portion of insurance and bonds that can be directly attributed to this Contract,based upon such minimum limits for coverage as required by Exhibit H(Insurance Requirements) attached hereto,which rates shall be final for the duration of the Project(and only subject to adjustment for changes in the scope or duration of the Project). If Owner requests,Construction Manager shall purchase Subcontractor Default insurance to cover the default of its Subcontractors,such Subcontractor Default insurance cost shall be reimbursable as Cost of the Work at the rate of one point three five percent (1.35%)of the value of the subcontracts,including the purchase orders,covered by such Subcontractor Default insurance,and Construction Manager shall not be entitled to a markup for general conditions or Fee on Subcontractor Default Insurance. §6.6.2 Subject to Section 13.6 of the General Conditions,sales,use or similar taxes imposed by a governmental authority that are related to the Work and for which the Construction Manager is liable. §6.6.3 Fees and assessments for the building permit and for other permits, licenses and inspections for which the Construction Manager is required by the Contract Documents to pay. §6.6.4 Fees of laboratories for tests required by the Contract Documents,except those related to defective or nonconforming Work. §6.6.5 Royalties and license fees paid for the use of a particular design,process or product required by the Contract Documents;the cost of defending suits or claims for infringement of patent rights arising from such requirement of the Contract Documents;and payments made in accordance with legal judgments against the Construction Manager resulting from such suits or claims and payments of settlements made with the Owner's consent.However,such costs of legal defenses,judgments and settlements shall not be included in the calculation of the Construction Manager's Fee or subject to the Guaranteed Maximum Price. §6.6.6 Costs for electronic equipment and software,directly related to the Work with the Owner's prior approval. §6.6.7 Deposits lost for causes other than the Construction Manager's negligence or failure to fulfill a specific responsibility in the Contract Documents. §6.6.8 Expenses incurred in accordance with the Construction Manager's standard written personnel policy for relocation and temporary living allowances of the Construction Manager's personnel required for the Work. §6.6.9 Reasonable travel expenses for travel outside of Texas pursuant to specific request by Owner,and only as approved in advance by Owner. §6.7 Emergencies and Repairs to Damaged or Nonconforming Work §6.7.1 Costs incurred in taking action to prevent threatened damage,injury,or loss in case of an emergency not caused by the Construction Manager,its Subcontractors, Suppliers,or anyone over whom Construction Manager has control or whom Construction Manager is responsible,affecting the safety of persons and property,as provided in Section 10.3.3 of the General Conditions. §6.8 COSTS NOT TO BE REIMBURSED §6.8.1 The Cost of the Work shall NOT include the items listed below: Init. AIA Document A133TM—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® $ Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA11) .1 Salaries and other compensation of the Construction Manager's personnel stationed at the Construction Manager's principal office or offices other than the site office,except as specifically provided in Section 6.2 herein; .2 Expenses of the Construction Manager's principal office and offices other than the site office,except as specifically provided for in Section 6.6; .3 Overhead and general expenses,except as may be expressly included in Section 6.1 herein; .4 The Construction Manager's capital expenses,including interest on the Construction Manager's capital employed for the Work; .5 Costs due to the negligence or failure of the Construction Manager,Subcontractors and suppliers or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable to fulfill a specific responsibility to the Owner as set forth in this Agreement or required by Applicable Law,including but not limited to costs for the correction of damaged,defective,or non-conforming Work,indemnity obligations,and similar costs excluded from reimbursement .6 Any cost not specifically and expressly described in Sections 6.1 to 6.7; .7 Costs,other than costs included in properly approved and executed Change Orders approved by the Owner,that would cause the Guaranteed Maximum Price to be exceeded; .8 Costs for services incurred during the Preconstruction Phase;and .9 Costs reimbursed under one category of 6.1 through 6.7 shall not be reimbursed under another category. §6.9 Discounts,Rebates and Refunds §6.9.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the Owner if(1) before making the payment,the Construction Manager included them in an Application for Payment and received payment from the Owner,or(2)the Owner has deposited funds with the Construction Manager with which to make payments;otherwise,cash discounts shall accrue to the Construction Manager.Trade discounts,rebates,refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner,and the Construction Manager shall make provisions so that they can be secured. §6.9.2 Amounts that accrue to the Owner in accordance with the provisions of Section 6.9.1 shall be credited to the Owner as a deduction from the Cost of the Work. §6.10 General Conditions Costs §6.10.1 Construction Manager's General Conditions expenses as identified in the General Conditions Costs shall be a lump sum amount,which is set forth in Exhibit F attached hereto. These expenses include rented or purchased materials and equipment used by the Contractor at the Project site office in connection with the Work,and items as set forth in Exhibit F. Costs which are reimbursable but not included as"Cost of the Work"in Section 6.1 shall be included by Construction Manager in its lump sum General Conditions Costs. §6.11 Accounting Records The Construction Manager shall keep full and detailed records and accounts related to the cost of the Work and exercise such controls as may be necessary for proper financial accounting practices and management under this Contract and as evidence of all costs incurred.The accounting and control systems shall be subject to the approval of the Owner.The Owner and the Owner's auditors shall,during regular business hours and upon twenty-four(24) hours' notice,be afforded access to,and shall be permitted to audit and copy,the Construction Manager's records and accounts,including complete documentation supporting accounting entries,books,correspondence,instructions, drawings,receipts,subcontracts, Subcontractor's proposals,purchase orders,vouchers,memoranda and other data I relating to this Contract.The Construction Manager shall preserve these records for a period of no less than six(6) years after Final Payment,or for such longer period as may be required by Applicable Law. §6.12 Records subject to audit,examination, and copying include,without limitation,accounting records(hard copy as well as electronic versions),written policies and procedures,bid documents,schedule analyses,Subcontract files,certified payrolls(if any),original estimates,correspondence,Change Order files,back charge logs and supporting documents,general ledger entries detailing cash and trade discounts earned,insurance rebates and dividends,agreements,purchase orders,contracts,commitments,memoranda,and any and all other sources of information and matters that may have any bearing on or pertain to any matters,rights,duties,or obligations under or covered by any Contract Document(all the foregoing as"Records"). Records shall include all forms of materials, including hard copy,electronic,computerized,and digitized.If the final audit by Owner of the Construction snit. AIA Document All 33 TM—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 19 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA11) Manager's Records(and any other relevant data including correspondence,emails,and this Agreement)reveals an overcharge,including,without limitation,any untimely request for payment,the Construction Manager shall pay the Owner upon demand an amount equal to one hundred percent of such overcharge and the administrative expense incurred in determining the overcharge. Notwithstanding anything herein,if the final audit reveals an overcharge for payment in excess of one hundred thousand($100,000)then the Construction Manager shall,in addition to repayment of such overcharge,reimburse Owner either ten thousand dollars($10,000)or fifty percent(50%)of the actual cost of the audit,whichever is greater. ARTICLE 7 PAYMENTS FOR CONSTRUCTION PHASE SERVICES §7.1 PROGRESS PAYMENTS §7.1.1 Based upon Applications for Payment submitted to the Owner and Architect by the Construction Manager, including,without limitation,all required supporting documentation,and Certificates for Payment issued by the Architect and approved by the Owner,the Owner shall make progress payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents. §7.1.2 The period covered by each Application for Payment shall be from the first(1st)of each month through and including the last day of such month("Payment Period"). §7.1.3 Construction Manager shall comply with the terms and conditions set forth in Section 9.3 of the General Conditions,including by way of example,submitting to Owner the pencil draw Draft Application for Payment on or before the twenty-fifth(25th)day of the current Payment Period,with the final and complete Application for Payment due on the fifth(5th)day of the month immediately following such Payment Period. §7.1.4 Provided an Application for Payment properly submitted pursuant to Section 9.3 of the General Conditions and this Agreement,is received by the Architect and the Owner not later than the fifth(5th)day following the Payment Period(the"Submission Date")and Architect issues a Certificate of Payment with respect to such Application of Payment pursuant to Section 9.4 of the General Conditions,the Owner shall make payments under the Certificate of Payment,as required by the Contract Documents,to the Construction Manager not later than thirty five(35)days following the Submission Date.The Owner,if the Application for Payment is not acted upon by the Architect within five(5)days of submission and the Application for Payment was timely submitted and complete and in full compliance with the provisions of the General Conditions and Construction Manager is not otherwise the cause of such delay,shall make an independent determination of the amounts due and shall proceed with making any payment which may then be due. §7.1.5 With each Application for Payment,the Construction Manager shall submit payrolls,petty cash accounts, receipted invoices or invoices with check vouchers attached,and any other evidence reasonably required by the Owner,Architect,or Lender to demonstrate that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or exceed(1)progress payments already received by the Construction Manager plus any retainage applicable to previous progress payments,less(2)that portion of those payments attributable to the Construction Manager's Fee,plus(3)payrolls for the period covered by the present Application for Payment. §7.1.6 Each Application for Payment shall be based on the most recent schedule of values submitted by the Construction Manager in accordance with the Contract Documents.The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work,except that the Construction Manager's Fee shall be shown as a single separate item.The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as is customary in the industry,with such changes as the Architect or the Owner may reasonably require.This schedule,unless objected to by the Architect or the Owner,shall be used as a basis for reviewing the Construction Manager's Applications for Payment. §7.1.7 Applications for Payment shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment.The percentage of completion shall be the lesser of(1)the percentage of that portion of the Work which has actually been completed,or(2)the percentage obtained by dividing(a)the expense that has actually been incurred by the Construction Manager on account of that portion of the Work for which the Construction Manager has made or intends to make actual payment prior to the next Init. AIA Document A133TM—2009(formerly A121 TMCMc—2003).Copyright m 1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 20 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3139ADA11) Application for Payment by(b)the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. I §7.1.8 In addition to the other items required by the Contract Documents,each Application for Payment shall be accompanied by the following,all in form and substance reasonably satisfactory to the Owner: (a) A certification from Construction Manager certifying that: (i) The Application for Payment represents the actual costs then due Construction Manager under the terms of this Agreement. (ii) The Application for Payment does not include a request for payment for Work previously paid for or included in a previous Application for Payment. (iii) All Work covered by the Application for Payment has been completed in accordance with this Agreement,the Specifications,Plans and Drawings,and properly approved Change Orders. (iv) There are no known Mechanics'Liens outstanding at the date of the Application for Payment. (v) All due and payable bills(except for amounts in dispute with Subcontractors)with respect to the Work have been paid to date or are included in the amount requested in the Application for Payment. (vi) There is no known basis for the filing of any Mechanics'Liens for or relating to the Work, except for(a)unpaid bills included in the Application for Payment,all of which shall be paid from the amount due to Construction Manager with respect to the Application for Payment,or(b)amounts in dispute with Subcontractors. (vii) Subject to receipt of payment,Construction Manager waives any Mechanics'Lien rights to the extent of such payment. (viii) To the best of Construction Manager's knowledge,there is no default,or event,which with the passage of time or giving of notice,or both,would constitute default under this Agreement. (ix) The remaining balance of the GMP is,in Construction Manager's reasonable estimation sufficient to complete construction of the remaining portion of the Work. (x) Construction Manager warrants that title to all Work and materials covered by an Application for Payment shall pass to Owner upon the receipt of payment by Construction Manager,free and clear of all Mechanics'Liens,claims,security interest or encumbrances. (b) A duly executed and acknowledged Construction Manager's Statement showing all Subcontractors and suppliers with whom the Construction Manager has entered into trade contracts or purchase orders,the amount of each such trade contract or purchase order,and the amount requested for any Subcontractor or supplier in the Application for Payment; (c) Duly executed conditional waivers and releases of liens from the Construction Manager and all Subcontractors and Suppliers,as found in Exhibit G—Lien Waivers,which are attached hereto,or as required by Applicable Law for all Work performed,for the Payment Period covered by the applicable Application of Payment contingent only upon receipt of payment for such Work. After Pay Application Number 1 and as a condition to receipt of payment for the next Pay Application,Construction Manager will provide Owner with Unconditional Waivers and Releases of Lien(in accordance with the forms attached as Exhibit G or in compliance with Applicable Law)from Construction Manager and all Subcontractors for the Work performed in the preceding month and for which Construction Manager received payment; and (d) Such other customary information,documentation and materials as the Owner or the Architect may reasonably request,including but not limited to evidence of payment sufficient to show payment to Subcontractors of any tier and suppliers. §7.1.9 Subject to other provisions of the Contract Documents,the amount of each progress payment shall be computed as follows: .1 Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage of completion of each portion of the Work by the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. Pending final determination of cost to the Owner of changes in the Work,amounts not in dispute shall be included as provided in Section 7.3.9 of the General Conditions; Init. AIA Document All 33 TM—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 21 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (369ADA11) .2 Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work,or if approved in advance by the Owner,suitably stored off the site at a location agreed upon in writing; .3 Add the Construction Manager's Fee,less retainage of ten percent( 10%).The Construction Manager's Fee shall be computed upon the Cost of the Work at the rate stated in Section 5.1 or,if the Construction Manager's Fee is stated as a fixed sum in that Section,shall be an amount that bears the same ratio to that fixed-sum fee as the Cost of the Work bears to a reasonable estimate of the probable Cost of the Work upon its completion; .4 Subtract retainage often percent(10%)from that portion of the Work that the Construction Manager self-performs; .5 Subtract the aggregate of previous payments made by the Owner; .6 Subtract the shortfall,if any,indicated by the Construction Manager in the documentation required by Section 7.1.4 to substantiate prior Applications for Payment,or resulting from errors subsequently discovered by the Owner's auditors in such documentation; and .7 Subtract amounts,if any,for which the Architect or Owner has withheld or nullified a Certificate for Payment as provided in Section 9.5 of the General Conditions. All retainage hereunder may be reduced or otherwise limited at Owner's discretion,subject to any requirements of Owner's lender and the submission of lien waivers and documentation as required by Owner. Approximately every ninety(90)days,Contractor shall submit to Owner a summary of that portion of the Work that has been completed as of the submission date and Owner may,but shall not be required to,release retainage for all or some of the work. Notwithstanding the foregoing,Owner shall not pay retainage without a fully executed final lien waiver conditioned upon payment that complies with Texas law,and Construction Manager shall provide to the Owner fully executed unconditional lien waivers as provided herein. §7.1.10 Except with the Owner's prior approval,the Construction Manager shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. §7.1.11 Notwithstanding any of the other terms of this Section 7.1 to the contrary, if at any time during the progress of the Work or before the Final Payment is made,any Lien or claim of Lien is filed,or notification to withhold money for labor or material furnished by the Construction Manager under the Construction Documents is served on the Owner relating to any Work for which the Construction Manager has received payment under the Construction Documents,Owner shall have the right to withhold from any further payments due the Construction Manager,an amount sufficient to discharge any or all such Liens or claims to the extent the lien or claim is not secured by a bond sufficient to discharge the lien or claim.Any release or receipted voucher in settlement of such Liens or claims in form and content satisfactory to Owner,must be furnished to Owner by the Construction Manager before any money withheld may be paid to the Construction Manager.If following Owner's notice any such Lien or claim of Lien against the Project is not discharged,released or otherwise settled in a manner satisfactory to the Owner promptly following Owner's notice thereof,Owner shall have the right,but not obligation,to satisfy any and all such liens or claims from the withheld money. §7.2 FINAL PAYMENT §7.2.1 Final payment shall be made by the Owner to the Construction Manager when: (1) the Contract has been fully performed(including,without limitation,completion of punch list items and the satisfaction of the requirements set forth in Subparagraphs 9.8.1 and 9.8.2 of the General Conditions)by the Construction Manager,except for the Construction Manager's responsibility to correct nonconforming Work,if any,that has not yet been discovered and to satisfy other requirements,if any,which necessarily survive final payment; (2) a final Application for Payment and a final accounting of the Cost of the Work have been submitted by the Construction Manager and reviewed by the Owner's accountants and approved by the Owner as in accordance with the requirements of the Contract Documents; Init. AIA Document A133TM—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 22 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (369ADA11) (3) final Certificate of Payment has been issued by the Architect and approved by the Owner,as in accordance with the requirements of the Contract Documents; (4) operations manuals,manufacturer's warranties of materials or equipment incorporated into the Project and a duly executed assignment of such warranties,in a form and substance acceptable to Owner,have been delivered to Owner; and (5) the Construction Manager has delivered to Owner conditional final releases of liens from the Contractor and all Subcontractors and suppliers of any tier,in the form attached as Exhibit G or in conformance with the requirements of Applicable Law for effective releases of lien claims regarding the Project,along with the all bills paid affidavit as set forth in the General Conditions. Owner and its accountants shall act promptly in reviewing the foregoing information delivered by Construction Manager and Owner shall make final payment not more than thirty-one(3 1)days after the date the Construction Manager has met the requirements of the Contract Documents for final payment as determined by the Owner. I §7.2.2 The amount of the final payment shall be calculated as follows: I (a) Take the sum of the Cost of the Work substantiated by the Owner's final accounting and the Construction Manager's Fee;but in no event more than the Guaranteed Maximum Price. (b) Subtract amounts,if any,for which the Owner or Architect withholds,in whole or in part,payment or final Certificate of Payment as provided in the Contract Documents;and (c) Subtract the aggregate of previous payments made by the Owner. I If the aggregate of previous payments made by the Owner exceeds the amount due the Construction Manager,the Construction Manager shall reimburse the difference to the Owner upon demand. The Owner's accountants will review and report in writing on the Construction Manager's final accounting within 30 days after delivery of the final accounting to the Owner and the Architect by the Construction Manager.Based upon such Cost of the Work as the Owner's auditors report to be substantiated by the Construction Manager's final accounting,and provided the other conditions of Subparagraph 7.2.1 have been met,the Architect will,within seven days after receipt of the written report of the Owner's auditors,either issue to the Owner a final Certificate for Payment with a copy to the Construction Manager,or notify the Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided in Section 9.5 of the General Conditions. §7.2.3 If the Owner's accountants report the Cost of the Work as substantiated by the Construction Manager's final accounting to be less than claimed by the Construction Manager,the Construction Manager shall be entitled to proceed in accordance with Section 4.3 of the General Conditions.Unless otherwise agreed by the parties,a claims proceeding with respect to a disputed final payment amount shall be brought by the Construction Manager no later than 30 days after the Construction Manager's receipt of a copy of the Architect's final Certificate for Payment. Failure to initiate such proceedings within this 30-day period shall result in the substantiated amount reported by the Owner's auditors becoming binding on the Construction Manager.Pending a final resolution of the disputed amount,the Owner shall pay the Construction Manager undisputed amounts. In the event of a disputed Claim by Owner against Construction Manager with respect to any amount or circumstance covered by any final Application for Payment,Owner may withhold from the Final Payment an amount not to exceed one- hundred(100%)percent of the disputed Claim. §7.2.4 No interest shall be payable to the Construction Manager on overdue amounts under any provision of the Contract Documents,except as may be required under Applicable(state)Law. Notwithstanding the foregoing,Construction Manager shall be paid interest at a rate of prime plus one percent(1%)per annum for payments made beyond the final Application for Payment due date and which were not being rightfully withheld in accordance with the Contract Documents. §7.2.5 Owner may engage a title company of Owner's choice to issue an endorsement,on or before the forty- fifth(45th)day after the day on which a Notice of Completion pertaining to the Work was filed,stating that no Init. AIA Document All 33TM—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° 23 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3139ADA11) I mechanics or materialmen's liens appear of record as a result of labor performed on or materials delivered to the Work. §7.2.6 Acceptance by Construction Manager of each payment provided for in this Agreement shall be a representation by Construction Manger to Owner that all Work required by this Agreement to be performed before such payment became due has been completed by Construction Manager in accordance with the terms and conditions of this Agreement and in accordance with the Drawings and Specifications. Acceptance of Final Payment by Construction Manager,any Subcontractor,Sub-subcontractor or material supplier shall constitute a waiver of all claims by that payee,except for those claims previously made in writing and identified by that payee as unsettled at the time of Construction Manager's final Application for Payment. §7.2.7 Construction Manager will,within 10 days of receipt of Final Payment,provide Owner with Unconditional Waivers and Releases of Lien(in accordance with the forms attached as Exhibit G or in compliance with Applicable Law) from Construction Manager and all Subcontractors. ARTICLE 8 INSURANCE AND BONDS §8.1 INSURANCE For all phases of the Project,the Construction Manager and the Owner shall purchase and maintain insurance as set forth in Exhibit H—Insurance Requirements attached hereto. I §8.2 PERFORMANCE AND PAYMENT BONDS If requested by Owner,and prior to the commencement of the Work by the Construction Manager, the Construction I Manager shall provide payment and performance bonds in the penal sum of 100%of the Guaranteed Maximum Price from a surety or sureties acceptable to the Owner for the Work.The Owner shall reimburse the Construction Manager for the cost of the premiums for the bonds upon presentation to the Owner of the actual invoice for the premium for the bonds as set forth in 6.6.1.The bond forms shall be AIA A312,or as otherwise required by Owner. I The surety or sureties shall appear on Treasury Department Circular 570 with approval to issue bonds in the amount required hereunder.The Owner's receipt of the fully executed bonds is a condition precedent to the Owner's obligation to make any payments otherwise due hereunder.Any decrease in the Guaranteed Maximum Price shall not reduce the penal amount of the bond unless specifically provided for in said Change Order and Owner shall be entitled a pro rata refund of premiums paid for the bond in that event.If the surety thereon becomes insolvent or if its right to do business or license to issue bonds in the state in which the project is located is revoked,the Construction Manager shall immediately notify Owner of such event and within three(3)days following notification furnish alternative bonds in conformance with this Paragraph.If the Construction Manager fails to post replacement bonds,the Owner shall have the right,at its option,to terminate the Construction Manager for default and the Contractor and its surety shall remain liable for all obligations hereunder. ARTICLE 9 DISPUTE RESOLUTION § 9.1 Any Claim between the Owner and Construction Manager shall be resolved in accordance with the provisions set forth in Section 4.3 of the General Conditions,and then if not resolved therein,through the method of dispute resolution selected in Article 15. Init. AIA Document All 33TM—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 24 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3139ADA11) i ARTICLE 10 TERMINATION OR SUSPENSION §10.1 TERMINATION PRIOR TO ESTABLISHMENT OF THE GUARANTEED MAXIMUM PRICE §10.1.1 Prior to the execution of the Guaranteed Maximum Price Amendment,the Owner may terminate this Agreement upon not less than seven(7)days'written notice to the Construction Manager for the Owner's convenience and without cause. §10.1.2 If the Owner terminates the Contract pursuant to Section 10.1.1 after the commencement of the Construction Phase but prior to the execution of the Guaranteed Maximum Price Amendment,the Owner shall pay to the Construction Manager an amount calculated as follows: .1 Take the Cost of the Work incurred b the Construction Manager to the date of termination; Y g , .2 Add the Construction Manager's Fee computed upon the Cost of the Work to the date of termination at I the rate stated in Section 5.1;and .3 Subtract the aggregate of previous payments made by the Owner for Construction Phase services. The Owner shall also pay the Construction Manager fair compensation,either by purchase or rental at the election of the Owner,for any equipment owned by the Construction Manager which the Owner elects to retain and which is not otherwise included in the Cost of the Work under Section 10.1.3.1. Construction Manager's recovery as expressly authorized in this Section 10.1.2 shall be Construction Manager's sole and exclusive remedy in the event of the Owner's termination of the Contract pursuant to Section 10.1.1 above. §10.1.3 To the extent that the Owner elects to take legal assignment of subcontracts and purchase orders(including rental agreements),the Construction Manager shall,as a condition of receiving the payments referred to in this Article 10,execute and deliver all such papers and take all such steps,including the legal assignment of such subcontracts and other contractual rights of the Construction Manager,as the Owner may require for the purpose of fully vesting in the Owner the rights and benefits of the Construction Manager under such subcontracts or purchase orders.All Subcontracts,purchase orders and rental agreements entered into by the Construction Manager will contain provisions allowing for assignment to the Owner as described above. If the Owner accepts assignment of subcontracts,purchase orders or rental agreements as described above,the Owner will reimburse or indemnify the Construction Manager for all costs arising under the subcontract,purchase order or rental agreement,if those costs would have been reimbursable as Cost of the Work if the contract had not been terminated.If the Owner chooses not to accept assignment of any subcontract,purchase order or rental agreement that would have constituted a Cost of the Work had this agreement not been terminated,the Construction Manager will terminate the subcontract,purchase order or rental agreement and the Owner will pay the Construction Manager the costs necessarily incurred by the Construction Manager because of such termination. §10.2 TERMINATION SUBSEQUENT TO ESTABLISHING GUARANTEED MAXIMUM PRICE Following execution of the Guaranteed Maximum Price Amendment and subject to the provisions of Section 10.2.1 and 10.2.2 below,the Contract may be terminated as provided in Article 14 of the General Conditions. §10.2.1 If the Owner terminates the Contract after execution of the Guaranteed Maximum Price Amendment,the amount payable to the Construction Manager pursuant to Sections 14.2 and 14.4 of the General Conditions shall not exceed the amount the Construction Manager would otherwise have received pursuant to Section 10.1.2 of this Agreement. I Init. AIA Document All 33 TM—2009(formerly All 21 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 25 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (369ADA11) i §10.3 SUSPENSION The Work may be suspended by the Owner as provided in Article 14 of the General Conditions.In such case,the Guaranteed Maximum Price and Contract Time shall be increased as provided in Section 14.3.2 of the General Conditions,except that the term"profit"shall be understood to mean the Construction Manager's Fee as described in Sections 5.1 and 5.3.5 of this Agreement. §10.4 LIMITATION OF DAMAGES UPON TERMINATION Construction Manager agrees that,upon Construction Manager's termination for cause(or Owner's termination for convenience),Construction Manager's recovery for damages and lost profits,if any,for Owner's breach(or early termination),shall be limited as set forth in this Article 10 of the Agreement and Article 14 of the General Conditions. ARTICLE 11 MISCELLANEOUS PROVISIONS §11.1 Terms in this Agreement shall have the same meaning as those in the General Conditions. I §11.2 OWNERSHIP AND USE OF DOCUMENTS Section 1.5 of the General Conditions shall apply to both the Preconstruction and Construction Phases. §11.3 GOVERNING LAW Section 13.1 of the General Conditions shall apply to both the Preconstruction and Construction Phases. §11.4 ASSIGNMENT The Owner and Construction Manager,respectively,bind themselves,their agents,successors,assigns and legal representatives to this Agreement.The Construction Manager shall not assign this Agreement without the written consent of the Owner. Owner may,upon written notice to the Construction Manager and without the consent of the Construction Manager assign this Contract and Owner's rights thereunder as provided in the General Conditions. In addition to,and without limiting its rights hereunder,Owner may upon written notice to the Construction Manager and without the consent of the Construction Manager,also assign this Contract to a parent,subsidiary,or affiliated entity of the Owner,and in addition that the Owner may assign this Agreement to a lender providing financing for the Project.Except as provided in Section 13.2.2 of the General Conditions,neither party to the Contract shall assign the Contract as a whole without written consent of the other.If either party attempts to make such an assignment without such consent,that party shall nevertheless remain legally responsible for all obligations under the Contract. §11.5 CONFIDENTIALITY Construction Manager recognizes that many facts of Owner's operations are valuable business secrets. Accordingly,Construction Manager will treat all of Owner's data and information that become known or are made available to Construction Manager in a confidential manner. Without limiting the foregoing, Construction Manager agrees to comply with the confidentiality and non-disclosure requirements attached hereto as Exhibit I-Non-Disclosure and Confidentiality Requirements. The provisions of this Section shall survive the termination of this Contract. Further,the provisions of this Section shall be expressly incorporate into all agreements with Subcontractors entered into by Construction Manager in connection with the Project. §11.6 ATTORNEYS'FEES In any dispute by the parties hereto arising out of or related to this Agreement,the party or parties whose position is selected,awarded,or successful(regardless of whether damages are awarded)will be awarded its attorneys'fees, costs,and expenses incurred in connection with the dispute. The fact finder will determine the prevailing party and award to such prevailing party, in addition to any other relief to which such party is entitled to recover,its attorneys' fees,costs,and expenses incurred in connection with the dispute. §11.7 AUTHORITY OF ARCHITECT Notwithstanding any contrary provision contained herein,no consent,decision,determination,approval or certification to be made by Architect shall be binding upon Owner unless and to the extent agreed to in writing by Owner. [nit. AIA Document A133TM—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 26 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (369ADA11) §11.8 LENDER'S REQUIREMENTS The Construction Manager acknowledges that the Owner is financing the Work,or any portion thereof,with a loan from Owner's lender("Lender"). Construction Manager shall provide to the lender(or lenders)furnishing financing for the development and construction of the Project any Project information that such lender(s)or its (their)designated representatives require or any such certification that Construction Manager is obligated to provide to the Owner under the Contract Documents.The Construction Manager further agrees to execute such documents as may be reasonably required by the lender or lenders furnishing financing for the development and construction of the Project and which are consistent with commercial practices for the financing of a project of the size and scope of the Project,including but not limited to the following examples:(a)a subordination of Construction Manager's lien rights(including a lien on removables or fixtures)to any liens of the lender(s)securing any obligations arising from the Project;(b)an agreement by Construction Manager to provide notice prior to suspension of the Work or termination of the Contract by Construction Manager and providing such lender(s)with an opportunity to cure Owner's default;(c)contingent assignment of this Agreement to the lender(s)in the event of a default by Owner under this Contract or under the documents creating the loan(s)provided that Construction Manager shall not be required to perform additional work for lender unless lender has assumed responsibility for payment of such additional work;(d)an agreement by Construction Manager to certify its compliance with the Contract Documents; and(e)acknowledgment that no Change Order or Construction Change Directive resulting in a material increase to the Contract Time or Cost of the Work will be effective without the consent of such lender(s). Construction Manager shall also agree to such modifications to this Agreement as such lender(s)may reasonably require, provided the Construction Manager's costs or time of performance are not increased unless this Agreement is equitably adjusted. §11.9 OTHER PROVISIONS §11.9.1 Multiple Original Counterparts. This Agreement may be executed in multiple original counterparts,each of which shall be of equal dignity.Faxed or electronically scanned signatures shall be sufficient for the execution and delivery of this Agreement. §11.9.2 Partial Invalidity Does Not Invalidate the Agreement. The invalidity of any part,clause,or portion of the Contract Documents shall not impair or affect in any manner whatsoever the validity,enforceability or effect of the remainder of the Contract Documents. §11.9.3 Survival. All provisions of the Contract which by their nature survive termination of this Agreement or final completion of the Work,including without limitation,all warranties,indemnities, indemnity obligations, confidentiality obligations,and insurance requirements that extend past completion of the Work,shall remain in force and effect after final completion or any termination. §11.9.4 Section References. The section headings and cross references contained in the Contract Documents are for reference purposes only and shall not affect the meaning or interpretation of the Contract. §11.9.5 Owner and Construction Manager both acknowledge and agree that each has reviewed the terms of this Agreement and has had an opportunity to consult an attorney. The parties further agree that the rule of contract construction that any ambiguities are resolved against the drafting party will be subordinated to the principle that the terms and provisions of this Contract will be construed fairly as to all parties and not in favor of or against any party. §11.9.6 Unless as otherwise specifically stated herein,Owner's rights under this Agreement and elsewhere in the Contract Documents,are cumulative and not in limitation of any rights of the Owner(i)granted in the Contract Documents;or(ii)at law or in equity. ARTICLE 12 SCOPE OF THE AGREEMENT §12.1 This Agreement,along with the all Exhibits attached hereto which are incorporated by reference as if fully set forth herein,and the General Conditions,and any Modifications to this Agreement represent the entire and integrated agreement between the Owner and the Construction Manager and supersedes all prior negotiations, representations or agreements,either written or oral.This Agreement may be amended only by written instrument signed by both Owner and Construction Manager. AIA Document A133TM—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. Init. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 27 Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA11) §12.2 The following documents comprise the Agreement: .1 AIA Document A133-2009, Standard Form of Agreement Between Owner and Construction Manager as Constructor where the basis of payment is the Cost of the Work Plus a Fee with a Guaranteed I Maximum Price,as modified by the Parties; .2 AIA Document A201-2007,General Conditions of the Contract for Construction,as modified by the Parties. .3 Exhibits,attached hereto and incorporated by reference as if fully set forth herein as follows: Exhibit A—List of Designated Representatives and Contact Persons Exhibit B-Legal Description of Land Exhibit C-Key Personnel Exhibit D—Liquidated Damages and Critical Milestones Exhibit E—Change Order Pricing Exhibit F—General Conditions Costs Exhibit G—Lien Waiver Forms Exhibit H—Insurance Requirements Exhibit I—Non-Disclosure and Confidentiality Exhibit J—Prevailing Wage Rates(Round Rock,TX) Exhibit K—Reserved Exhibit L—City/TEDCO Contribution Cap Exhibit M—Construction Manager's Design-Build Scope of Work Exhibit N-General Description of Project Scope and List of Plans I .4 Any amendments or modifications duly approved and executed and made part of this Agreement. t. This Agreement is entered into as of the day and year first written above. [*END OF DOCUMENT*] Init. AIA Document A133M—2009(formerly A121 TMCMc—2003).Copyright©1991,2003 and 2009 by The American Institute of Architects.All rights reserved. WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® 2$ Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 20:53:17 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA11) SIGNATURE PAGE TO AIA DOCUMENT A133 -2009 STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONSTRUCTION MANAGER OWNER: ROUND ROCK TRANSPORTATION AND ECONO I D VEL NT CORPORATION By: CONSTRUCTION MANAGER: HENSEL PHELPS CONSTRUCTION A Delaware ge,11 r ffi-partnership • 1NAfl .6 Its: Ge RZE5kVENT" EXHIBITS TO AGREEMENT AIA / A133 - 2009 BETWEEN Round Rock Transportation and Economic Development Corporation AND Hensel Phelps PROJECT: The City of Round Rock Convention Center Round Rock, TX TABLE OF CONTENTS Exhibit A LIST OF DESIGNATED REPRESENTATIVES AND CONTACT PERSONS Exhibit B PROJECT SITE DESCRIPTION Exhibit C CONSTRUCTION MANAGER'S KEY PERSONNEL AND RATES SCHEDULE Exhibit D CRITICAL MILESTONES AND LIQUIDATED DAMAGES Exhibit E CHANGE ORDER PRICING Exhibit F GENERAL CONDITIONS COSTS Exhibit G LIEN WAIVER FORMS Exhibit H INSURANCE REQUIREMENTS Exhibit I NON-DISCLOSURE AND CONFIDENTIALITY REQUIREMENTS Exhibit J PREVAILING WAGE RATES Exhibit K [Reserved]. Exhibit L THE CITY OF ROUND ROCK/TEDCO'S MAXIMUM FINANCIAL RESPONSIBILITY PURSUANT TO AGREEMENT Exhibit M CONSTRUCTION MANAGER DESIGNED WORK i EXHIBIT A LIST OF DESIGNATED REPRESENTATIVES AND CONTACT PERSONS OWNER'S DESIGNATED REPRESENTATIVES: Travis Wilkes Dale Hensen (KR Acquisitions/Kalahari) An additional Owner's Designated Representative may be added and the Owner's Designated Representative may be changed, effective only upon written notice to the Construction Manager executed by the then-current Designated Representative or an officer of the Owner. Without limiting any other provisions of the Contract Documents, all notices of claims for changes to the Contract Time or the Contract Sum, notices of all other claims by Construction Manager or its subcontractors (of any tier) against the Owner, notices of default on the part of the Owner, notices demanding action or requiring cure by the Owner, or notices of termination or required as a condition of termination shall not be effective until and unless received by Owner's Designated Representative, with a copy contemporaneously sent to and received by the following: Laurie Hadley 221 E. Main Street Round Rock, Texas 78664 Stephan Sheets 309 E. Main Street Round Rock, Texas 78664 The parties further acknowledge that Owner may retain the services of one or more additional consultants to assist the Owner in connection with the Project and that, upon Owner's written direction, Construction Manager shall copy such consultants with regard to such notices or communications as directed by Owner and shall cooperate fully with such consultants and provide access to the Project as reasonably required by such consultants. No waiver, consent or modification of the terms of the Contract or Construction Manager's obligations to perform thereunder or any other approval shall be effective or enforceable against Owner except to the extent such waiver, consent, modification or approval is in writing and duly executed by Owner's Designated Representative.Without limiting the foregoing, all Change Orders, Change Directives, and Modifications must be executed by Owner's Designated Representative. Consistent with the foregoing, no consultant retained by Owner, including but not limited to Owner's Project Manager, shall have authority to waive, excuse, or release Construction Manager with regard to any obligation arising under the Contract or to bind Owner with regard to any matter arising under the Contract or related to the Project, except to the extent expressly authorized in writing by the Owner's Designated Representative. Exhibit A-1 Architect's Designated Representative: Richard Johnston Steve Valenta HKS Architects, Inc. 350 N Saint Paul Street Suite 100 Dallas, TX 75201 All notices and other written communications to be provided by the Construction Manager to the Architect under the terms of the Contract shall be sent to the Architect's Designated Representative noted above. Construction Manager's Designated Representative: Michael Orlowski Erik LaRue Hensel Phelps 8326 Cross Park Dr. Austin, TX 78754 All notices to be provided to the Construction Manager under the terms of the Contract, including but not limited to all preliminary notices for claims for changes in the Contract Time or Contract Sum, all notices of claim, or other written communications that affect the Contract Time or the Contract Sum or that assert any claim by the Owner against the Construction Manager shall be sent to the Construction Manager's Designated Representative noted above. Upon written notice signed by the current Construction Manager's Designated Representative or a duly authorized corporate officer of the Construction Manager and delivered to Owner, additional persons may be added as Designated Representatives of the Construction Manager, subject to such restrictions on their authority as specified in the written notice. Exhibit A-2 EXHIBIT B PROJECT SITE DESCRIPTION Lot 2, 9.476 Acres, Block C of the Final Plat of Kalahari Resort and Replat of Bertil Telander Subdivision i-2-�- lc?� ai�r t)ww w;k-- 9KN4Lo---x lq203F��+9 fo fh<-- 4�c t k -%el CUr'j& iLA/0-QV) aRhtT'ep , Exhibit B-1 EXHIBIT C CONSTRUCTION MANAGER'S KEY PERSONNEL AND RATES SCHEDULE Construction Manager shall have the following Key Personnel dedicated to the Project: Michael Orlowski (Multiple Projects) William Higgins(Multiple Projects) Erik LaRue Cody Adams Scott Sansom Ed Kowalski Pursuant to Sections 6.2.2 and 6.2.3 of the Agreement, wages or salaries of Construction Manager's personnel, to the extent reimbursable as Cost of the Work under the Contract Documents, shall be reimbursed based upon the following rates, subject to such Labor Burden as authorized herein: Position IHaurly Rate Operationf> Manager $109.38 Project Manager $98.17 Design Manager $98.17 General Superintendent $119.94 ... ......_...._..... ..._.........._.. . ... . . Project Superintendent $98-67 _Ntep 98.6r Ntep Superintendent $98.67 Area Superintendent $86.3 # Project Engineer $70.14 Vdc Engineer $8224 Project Scheduler $82.24 Safety Manager $83.23 _QC Manager $90_92 OC Engineer $79.22 Office Engineer $88-65 Chiof Estimator $109.38 Senior Estimator $98.17 Estimator $74.67 The foregoing Wage and/or Salary rates and Labor Burden for the respective personnel or classifications of personnel performing Work or services hereunder are agreed upon and fixed, and such rates are not subject to audit. However, the time chargeable to the Project hereunder for such employees or that portion of the wages allocable to the Cost of the Work are subject to audit. Further, the proper classification of employees charged to the Cost of the Work (when rates are based upon classification) is subject to verification as reasonably required by the Owner. Exhibit C-1 EXHIBIT D CRITICAL MILESTONES AND LIQUIDATED DAMAGES LIQUIDATED DAMAGES SCHEDULE Construction Manager acknowledges the date required by the Contract Documents for the Substantial Completion of the entire Work of the Master Project (including both Convention Center Contract and Kalahari Hotel, Waterpark, and Onsite Improvements Contract) are essential to the Owner's beneficial use of the improvements to be constructed hereunder and, therefore, time is of the essence in meeting each of those dates. Accordingly, the parties hereto expressly agree that, if the Construction Manager fails to meet such Contract Time requirements, subject to adjustments as provided in the Contract Documents, the Owner shall, as its sole remedy for delay damages arising out of the failure to meet such Contract Time requirements, be entitled to retain and/or recover from the Construction Manager, as Liquidated Damages and not as a penalty, the respective amounts set forth below, which are hereby agreed to be a reasonable estimate of damages the Owner will incur as a result of Construction Manager's failure to meet the applicable Contract Time requirements. Liquidated Damages for the entire Work: If the Construction Manager shall neglect, fail, or refuse to achieve Substantial Completion of the entire Work of the Master Project(including both Convention Center Contract and Kalahari Hotel,Waterpark, and Onsite Improvements Contract) by the date required below for Substantial Completion of the entire Work, subject to adjustments in the Contract Time as provided in the Contract Documents, then the Construction Manager (and the Construction Manager's Surety, if any, in the case of default) agrees to pay to the Owner as Liquidated Damages, and not as a penalty or forfeiture, the sum or sums for each day of such delay as set for the below: Substantial Completion Date Amount of Liquidated Damages per Calendar Day November 1, 2020 $50,000 per day Notwithstanding the foregoing, Liquidated Damages shall begin on November 23, 2020, and the time between November 1, 2020 and November 22, 2020 shall be referenced as the grace period ("Grace Period"). The foregoing Liquidated Damages apply to the delivery by Construction Manager of the entire Master Project by the Substantial Completion Date listed above, taking into account the Grace Period. The parties acknowledge that the Liquidated Damages amount is a singular amount applicable to the Master Project and not to be aggregated between the Convention Center Project and Kalahari Project. Exhibit D-1 EXHIBIT E CHANGE ORDER PRICING 1. Change Order Pricing Methods. Whenever Change Order proposals to adjust the Guaranteed Maximum Price become necessary, the Owner will have the right to select the method of pricing to be used by the Construction Manager in accordance with the pricing provisions found in this Section. The options for the pricing of the Subcontractors' Work will be (1) Lump Sum Change Order Proposal or (2) Cost of the Work plus Fee Change Order Proposal as defined in the following provisions: Lump Sum Change Order Proposals. The Construction Manager (through any lower tier subcontractor)will submit a properly itemized Lump Sum Change Order Proposal covering the additional work and/or the work to be deleted. This proposal will be itemized for the various components of work and segregated by labor, material, and equipment in a reasonably detailed format reasonably satisfactory to the Owner. Consistent with the foregoing, the Owner will require itemized Change Order proposals from the Construction Manager, Subcontractors, and Sub-subcontractors regardless of tier (Downstream Subcontractors). Details to be submitted will include estimates showing materials quantity take-offs, material prices by item, and related labor hour pricing information in such detail as reasonably required by Owner in order to determine how the proposed pricing was computed. Except as otherwise provided herein, such lump sum proposals shall be based upon costs reimbursable as Cost of the Work and subject to the limitations and conditions set forth in Articles 6 and 7 of the Agreement. Notwithstanding the foregoing, agreed reimbursement rates set out in the Agreement are only applicable to the Construction Manager, and agreed reimbursement rates set out in the respective Subcontract Agreements may be used for pricing for that Subcontractor's Change Order work. Estimated labor costs shall be based on the actual cost per hour paid by the Construction Manager (for Self-Performed Work) and the respective Subcontractors and Downstream Subcontractors for those workers who are reasonably anticipated to perform the Change Order work. Estimated labor hours shall include hours only for those workmen and supervisory personnel directly involved in performing the Change Order work. Labor burden allowable in Change Orders for Construction Manager's Self Perform Work shall be as set forth in Article 6 of the Agreement. Labor burden allowable in Change Orders for Subcontractors and Downstream Subcontractors shall be defined as employer's net actual cost of payroll taxes (FICA, Medicare, SUTA, FUTA), net actual cost for employer's cost of union benefits (or other usual and customary fringe benefits actually paid, if the employees are not union employees), and net actual cost to employer for worker's compensation insurance. Cost of the Work Plus Fee Change Order Proposals. As an alternative to Lump Sum Change Order Proposals, the Owner may elect to have any Change Order work performed on a time and material plus a fee basis. Upon written notice to proceed, the Construction Manager shall perform such authorized extra Work (for Construction Manager's Self Perform Work) or shall cause its Subcontractors (and their Downstream Subcontractors) to perform such authorized extra Work at actual cost for direct labor (working foremen, journeymen, apprentices, helpers, etc.), actual cost of labor burden (allowable as provided above), actual cost of material used to perform the extra work, and actual cost of rental of major equipment (without any separate charge for administration, clerical expense, general supervision or superintendent of any nature whatsoever, including general foremen, or the cost or rental of small tools, minor equipment, or plant plus the approved markup for fee or profit and general conditions costs in an amount not to exceed the percentages as set forth in Section 5.1.3 of the Agreement. Owner and Construction Manager may agree in advance in writing on a maximum price for this work and Owner shall not be liable for any charge in excess of the maximum. Exhibit E-1 2. Computing Subcontractor Costs. Any adjustments to Subcontracts shall, except as otherwise agreed in writing by Owner and Construction Manager, be subject to the Change Order Pricing requirements as provided herein or as may be set forth in the respective Subcontract Agreement(which, in the event of a conflict,the terms of the respective Subcontract Agreement shall control provided that Owner has approved such conflicting terms). Except as otherwise expressly agreed by the Owner, any adjustment to Subcontracts with regard to mark-ups for overhead and profit shall be subject to the limits as set forth in Section 5.1.3 of the Agreement. It is understood that the Subcontractor Change Order Pricing Requirements apply to all types of contracts and/or subcontracts specifically including lump sum (or fixed price contracts), unit price contracts, and/or cost of the work plus fee contracts with or without a guaranteed maximum price. It is further understood that these Change Order Pricing Requirements will apply to all methods of change order pricing specifically including Lump Sum Change Order Proposals, unit price Change Order Proposals (to the extent the parties agree on unit pricing), and Cost of the Work Plus Fee Change Order Proposals. 3. Accurate Change Order Pricing Information. Construction Manager agrees to submit accurate documentation to support any Change Order Proposals or other contract price adjustments in accordance with the terms of the Contract with respect to pricing of Change Orders. 4. Right to Verify Change Order Pricing Information. Construction Manager agrees that any designated Owner's representative will have the right to examine the records of the Construction Manager to verify the accuracy and appropriateness of the documentation used to price Change Order Proposals. Construction Manager shall furnish Owner with copies of all Change Orders issued to Subcontractors. 5. Deductive Change Orders and Net Deductive Changes. The application of the markup percentages as set forth in Section 5.1.3. of the Agreement will apply to both additive and deductive Change Orders. In those instances where a change involves both additive and deductive work, the additions and deductions will be netted and the markup percentage adjustments will be applied to the net additive or deductive amount. 6. Change Order Proposal Time and Construction Change Directive. The Construction Manager's proposals for changes in the Guaranteed Maximum Price or the Contract Time shall be submitted promptly but within twenty one (21) calendar days of the Owner's request unless the Owner extends such period of time due to the circumstances involved or Construction Manager, by exercising reasonable diligence, is not able to finalize such proposal within fourteen calendar days. Construction Manager shall contractually require all Subcontractors to respond to requests for pricing in conformance with the pricing requirements herein and time impact information in an accurate, diligent and prompt manner to allow for Construction Managers' compliance with the twenty one day proposal submission requirement. If such proposals are not received in a timely manner, if the proposals are not acceptable to Owner, or if the changed work should be started immediately to avoid damage to the Project or costly delay, the Owner may issue a Construction Change Directive to the Construction Manager to proceed with the changes without waiting for the Construction Manager's proposal or for the formal Change Order. The cost or credit and/or time extensions will be determined by negotiations as soon as practical thereafter and incorporated in a Change Order to the Contract. In the event that the parties are unable to agree on the amount of the cost or credit of the changed work, the provisions of Section 7.3 of the General Conditions shall apply. Exhibit E-2 EXHIBIT F GENERAL CONDITIONS COSTS Convention Center Project lump sum General Conditions Costs are as follows: Supervision- $11574,205 Plans and Printing- $2,930 Job Site Office Complex- $176,337 Total Lump Sum General Conditions: $11753,472 Exhibit F-1 EXHIBIT G LIEN WAIVER FORMS Construction Manager shall use the following forms of lien waivers, or any form as may be required by Applicable Law, as required by the terms of the Agreement. [See forms on following page.] Exhibit G-1 CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT Project Job No. On receipt by the signer of this document of a check from (maker of check) in the sum of$ payable to (payee or payees of check) and when the check has been properly endorsed and has been paid by the bank on which it is drawn, this document becomes effective to release any mechanic's lien right, any right arising from a payment bond that complies with a state or federal statute, any common law payment bond right, any claim for payment, and any rights under any similar ordinance, rule, or statute related to claim or payment rights for persons in the signer's position that the signer has on the property of (owner) located at (location) to the following extent: (job description). This release covers a progress payment for all labor, services, equipment, or materials furnished to the property or to (person with whom signer contracted) as indicated in the attached statement(s) or progress payment request(s), except for unpaid retention, pending modifications and changes, or other items furnished. Before any recipient of this document relies on this document, the recipient should verify evidence of payment to the signer. The signer warrants that the signer has already paid or will use the funds received from this progress payment to promptly pay in full all of the signer's laborers, subcontractors, materialmen, and suppliers for all work, materials, equipment, or services provided for or to the above referenced project in regard to the attached statement(s) or progress payment request(s). Date (Company name) By (Signature) (Title) STATE OF TEXAS § COUNTY OF § Before me, the undersigned authority, on this day personally appeared (name), the (job title) of (company name), known to me to be the person whose name was subscribed to the forgoing instrument and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed. To certify which, witness my hand and official seal on this the day of NOTARY PUBLIC—STATE OF TEXAS Exhibit G-2 CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT Proj ect: Job No.: On receipt by the signer of this document of a check from (maker of check) in the sum of $ payable to (payee or payees of check) and when the check has been properly endorsed and has been paid by the bank on which it is drawn, this document becomes effective to release any mechanic's lien right, any right arising from a payment bond that complies with a state or federal statute, any common law payment bond right, any claim for payment, and any rights under any similar ordinance, rule, or statute related to claim or payment rights for persons in the signer's position that the signer has on the property of (owner) located at (location) to the following extent: (job description). This release covers the final payment to the signer for all labor, services, equipment, or materials furnished to the property or to (person with whom signer contracted). Before any recipient of this document relies on this document, the recipient should verify evidence of payment to the signer. The signer warrants that the signer has already paid or will use the funds received from this final payment to promptly pay in full all of the signer's laborers, subcontractors, materialmen, and suppliers for all work, materials, equipment, or services provided for or to the above referenced project up to the date of this waiver and release. Date: (Company name) By (Signature) (Title) STATE OF TEXAS § COUNTY OF § Before me, the undersigned authority, on this day personally appeared (name), the (job title) of (company name), known to me to be the person whose name was subscribed to the forgoing instrument and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed. To certify which, witness my hand and official seal on this the day of NOTARY PUBLIC—STATE OF TEXAS Exhibit G-3 NOTICE: This document waives rights unconditionally and states that you have been paid for giving up those rights. It is prohibited for a person to require you to sign this document if you have not been paid the payment amount set forth below. If you have not been paid, use a conditional release form. UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT Proj ect Job No. The signer of this document has been paid and has received a progress payment in the sum of $ for all labor, services, equipment, or materials furnished to the property or to (person with whom signer contracted) on the property of (owner) located at (location) to the following extent: (job description). The signer therefore waives and releases any mechanic's lien right, any right arising from a payment bond that complies with a state or federal statute, any common law payment bond right, any claim for payment, and any rights under any similar ordinance, rule, or statute related to claim or payment rights for persons in the signer's position that the signer has on the above referenced project to the following extent: This release covers a progress payment for all labor, services, equipment, or materials furnished to the property or to (or person with whom signer contracted) as indicated in the attached statement(s) or progress payment request(s), except for unpaid retention, pending modifications and changes, or other items furnished. The signer warrants that the signer has already paid or will use the funds received from this progress payment to promptly pay in full all of the signer's laborers, subcontractors, materialmen, and suppliers for all work, materials, equipment, or services provided for or to the above referenced project in regard to the attached statement(s) or progress payment request(s). Date: (Company name) By: (Signature) Its: (Title) STATE OF TEXAS § COUNTY OF § Before me, the undersigned authority, on this day personally appeared (name), the (job title) of (company name), known to me to be the person whose name was subscribed to the forgoing instrument and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed. To certify which, witness my hand and official seal on this the day of , NOTARY PUBLIC—STATE OF TEXAS Exhibit G-4 NOTICE: This document waives rights unconditionally and states that you have been paid for giving up those rights. It is prohibited for a person to require you to sign this document if you have not been paid the payment amount set forth below. If you have not been paid, use a conditional release form. UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT Proj ect: Job No. The signer of this document has been paid in full for all labor, services, equipment, or materials furnished to the property on the property of (owner) located at (location) to the following extent: (job description). The signer therefore waives and releases any mechanic's lien right, any right arising from a payment bond that complies with a state or federal statute, any common law payment bond right, any claim for payment, and any rights under any similar ordinance, rule, or statute related to claim or payment rights for persons in the signer's position. The signer warrants that the signer has already paid or will use the funds received from this final payment to promptly pay in full all of the signer's laborers, subcontractors, materialmen, and suppliers for all work, materials, equipment, or services provided for or to the above referenced project up to the date of this waiver and release. Date: (Company) By: (Signature) (Title) STATE OF TEXAS § COUNTY OF § Before me, the undersigned authority, on this day personally appeared (name), the (job title) of (company name), known to me to be the person whose name was subscribed to the forgoing instrument and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed. To certify which, witness my hand and official seal on this the day of , NOTARY PUBLIC—STATE OF TEXAS Exhibit G-5 EXHIBIT H INSURANCE REQUIREMENTS The following insurance requirements shall apply to the Master Project (as defined in the Agreement), which includes the Convention Center, Hotel and Indoor Waterpark, and certain onsite public improvements, and all insurance shall be in place prior to commencement of construction of the Work on any part of the Master Project, unless specified otherwise by Owner. For purposes of these insurance requirements the term "Owner" whether singular or plural shall include KR Acquisitions LLC; the City of Round Rock, Texas; and Round Rock Transportation and Economic Development Corporation ("TEDCO"). A. CONSTRUCTION MANAGER INSURANCE Construction Manager shall procure and maintain at its own expense policies of insurance of the types and in the minimum amounts as follows: All policies above must be provided through insurers authorized to do business in the state in which the Project is located. These insurers must have an A. M. Best rating of no less than A and a financial size of VIII or more. If other contract documents require more stringent financial security criteria, the more stringent requirements shall control. 1. COMMERCIAL GENERAL LIABILITY("CGL") Construction Manager shall provide and maintain during the term of the Work and for a period not less than ten (10) years after completion of the entire Work of the Master Project (as defined in the Agreement), including any warranty periods the following commercial general liability insurance. Commercial General Liability written on an ISO Occurrence Coverage Form CG 00 01 (or a substitute form providing equivalent coverage): Each Occurrence—Bodily Injury/ Property $2,000,000 Personal Injury $2,000,000 General Aggregate $4,000,000 Products/Completed Operations Aggregate $4,000,000 If any of the insurance required to be maintained pursuant to this Agreement contains aggregate limits which apply to the operations of the Construction Manager other than those operations which are the subject of this Agreement, and such limits are diminished or reduced below the limits required hereunder after one or more incidents, occurrences, claims, settlements or judgments against such insurance or for any other reason, then Construction Manager shall take immediate steps to restore aggregate limits or shall maintain other insurance protection for such aggregate limits. CGL Policy must include: • Coverage for; premises and operations; products and completed operations; contractual liability of a type that provides coverage for the indemnification clause in this Contract; personal injury liability; employees as insureds; independent contractor protective liability; incidental medical malpractice; explosion, collapse and underground damage and must include, severability of interest language. It must also include coverage for cross liability claims between Insureds. • General Aggregate on a "per project" basis. • Additional Insured status using forms CG 20 10 (10 01) for ongoing operations and CG 20 37 (10 01)for completed operations or their equivalent to apply for: Exhibit H-1 KR Acquisitions, LLC; KR CC, Inc.; Kalahari Management Co. LLC; the City of Round, Rock, Texas; TEDCO; and their respective subsidiaries, parents, affiliates, and the directors, officers, employees, successors and assigns of these entities, and their lender(s). Additional Insured status shall be provided during construction and for the duration of any applicable statute of limitations and statute of repose after Substantial Completion of the Project. Coverage to apply on a primary and non-contributory basis. • Waiver of Subrogation to the fullest extent allowable by law in favor of KR Acquisitions, LLC; KR CC, Inc.; Kalahari Management Co. LLC; the City of Round Rock, Texas; and TEDCO (as defined herein above); and their respective subsidiaries, parents, affiliates, and the directors, officers, employees, successors and assigns of these entities, and their lender(s). • Policy must not exclude coverage for Exterior Insulation and Finish Systems (EIFS). Construction Manager must agree to provide completed operations coverage under this policy during the construction phase and for the duration of the applicable statute of limitations and statute of repose (not less than 10 years)after substantial completion of the Project. 2. AUTOMOBILE LIABILITY Construction Manager shall provide and maintain business automobile liability insurance coverage during the term of the Work, including any warranty periods, on a standard form (approved by the Texas Department of Insurance) written to cover all owned, hired, non-owned automobiles, and motor vehicles, subject to the following minimum limits: Combined Single Limit $1,000,000 Including bodily injury/property damage arising out of the use, ownership and / or maintenance of owned, non-owned and hired vehicles. The Automobile Liability policy shall include an endorsement (form TE 0202A for Projects located in Texas or substantial equivalent for projects located in other jurisdictions) providing thirty(30) days' notice of cancellation to Owner. Policy must include: • Additional Insured status for: KR Acquisitions, LLC; KR CC, Inc.; Kalahari Management Co. LLC; the City of Round Rock, Texas; and TEDCO; and each of their respective subsidiaries, parents, affiliates, and the directors, officers, employees, successors and assigns of these entities, and their lender(s). • Waiver of Subrogation to the fullest extent allowable by law in favor of KR Acquisitions, LLC; KR CC, Inc.; Kalahari Management Co. LLC; the City of Round Rock, Texas; and TEDCO; and each of their respective subsidiaries, parents, affiliates, and the directors, officers, employees, successors and assigns of these entities, and their lender(s). • Contractual liability • Where transportation of any hazardous materials or pollutants may be required, the Automobile Liability insurance required by this Section shall include upset and overturn coverage and a broadened pollution endorsement. MCS 90 Endorsement should be included, where applicable. 3. WORKERS COMPENSATION/EMPLOYER LIABILITY Construction Manager shall provide and maintain during the term of the Work, including any warranty periods, Workers' Compensation Insurance Coverage [as defined in Sec. 401.011(44) of the Texas Labor Code for Projects located in the State of Texas] for all Construction Manager's workers at the site of the Project with Employer's Liability Coverage with limits of: Each Accident $1,000,000 Disease Policy Limit $1,000,000 Disease Each Employee $1,000,000 Limits can be achieved via a combination of primary and excess policies. Exhibit H-2 In case any work is sublet, the Construction Manager shall require all subcontractors similarly to provide Workers Compensation insurance for all of the subcontractors' employees unless such employees are covered by the protection afforded by Construction Manager. Policy must include: • Waiver of Subrogation to the fullest extent allowable by law in favor of KR Acquisitions, LLC; KR CC, Inc.; Kalahari Management Co. LLC; the City of Round Rock, Texas; and TEDCO; and their respective subsidiaries, parents, affiliates, and the directors, officers, employees, successors and assigns of these entities, and their lender(s). 4. UMBRELLA/EXCESS LIABILITY(OCCURRENCE POLICY FORM) - MINIMUM LIMITS OF LIABILITY Construction Manager shall provide and maintain during the terms of the Work, including any warranty periods, excess liability coverage on a policy form acceptable to Owner, providing coverage in excess of the limits specified above. Such policy shall have the same inception and expiration dates as the underlying liability policies and coverage no less broad than those in the primary policies or program: Each Occurrence $150,000,000 Aggregate $150,000,000 Umbrella/Excess policies must schedule as underlying policies on a"follow form" basis: General Liability/ Auto Liability/ Employer's Liability. Policy must include: • Additional Insured status must apply as shown in the underlying General Liability and Automobile policy sections of this exhibit with respect to parties and coverage. Coverage to apply on a primary/non-contributory basis. • Waiver of Subrogation must apply to the fullest extent allowable by law in favor of those identified in the underlying General Liability, Auto and Workers' Compensation policy sections within this exhibit. • This policy must provide that if the underlying coverage is exhausted, the excess coverage will drop down as primary insurance. • Umbrella / Excess Liability must be maintained and must include completed operations coverage during the construction phase and for the duration of any applicable statute of limitations and statute of repose (but in no event less than 10 years) after Substantial Completion of the Project. 5. PROFESSIONAL LIABILITY Construction Manager shall provide and maintain on an annual basis, at its expense, professional liability coverage for claims or damages arising from professional services required by or through Construction Manager for the Project. Professional liability shall be required for anyone or any entity providing Professional Services. Minimum limits of liability are: Each Occurrence $25,000,000 Annual Aggregate $25,000,000 Policy must: • Cover all professional services performed on behalf of Project. • As respects any retroactive date or prior acts exclusion to which such coverage is subject, said retroactive date must pre-date both the date upon which any services hereunder are commenced and the date of this Agreement. Exhibit H-3 • Include Waiver of Subrogation to the fullest extent allowable by law in favor of KR Acquisitions, LLC; KR CC, Inc.; Kalahari Management Co. LLC; the City of Round Rock, Texas; and TEDCO; and their respective subsidiaries, parents, affiliates, and the directors, officers, employees, successors and assigns of these entities, and their lender(s). Professional Liability Coverage must be maintained while actual work is being performed and for the duration of the applicable statute of limitations and statute of repose(but in no event less than 10 years) after substantial completion of the project. 6. POLLUTION LEGAL LIABILITY Construction Manager shall provide and maintain during the term of the Work and a thirty(30)day extended reporting period, pollution liability insurance coverage, including mold coverage, with the following minimum limits: Each Accident $25,000,000 Policy must: • As respects any retroactive date or prior acts exclusion to which such coverage is subject, said retroactive date must pre-date both the date upon which any services hereunder are commenced and the date of this Agreement. • Include coverage for pollution legal liability, mold, third-party claims for bodily injury and property damage; remediation costs(clean-up); and first party discovery and third party claims. • Include Additional Insured status for KR Acquisitions, LLC; KR CC, Inc.; Kalahari Management Co. LLC; the City of Round Rock, Texas; and TEDCO; ; and their respective subsidiaries, parents, affiliates, and the directors, officers, employees, successors and assigns of these entities, and their lender(s). Coverage to apply on a primary and non- contributory basis. • Be maintained while actual work is being performed and for the duration of the applicable statute of limitations and statute of repose after substantial completion of the project. B. SUBCONTRACTOR'S INSURANCE REQUIREMENTS All Subcontractors shall obtain and maintain the insurance policies shown above (Sections 1 through 4)with the same coverage, terms and conditions and having the same or higher limits, with the exception of the additional insured coverage form which may be provided on the current ISO form or equivalent, and the Professional Liability, Pollution Liability and Umbrella/Excess Liability Limits which are shown in the exhibit immediately below titled: SUBCONTRACTOR'S INSURANCE REQUIREMENTS EXHIBIT. It is only with the Owner's written permission that policy limits may be lower than stated. The term "subcontractor(s)"shall include subcontractor(s) of any tier. It is the responsibility of Construction Manager to make certain their subs are aware of and in compliance with these requirements including the provision of Additional Insured and Waiver of Subrogation status to KR Acquisitions, LLC; KR CC, Inc.; Kalahari Management Co. LLC; City of Round Rock, Texas; and TEDCO; and their respective subsidiaries, parents, affiliates, and the directors, officers, employees, successors and assigns of these entities, and their lender(s). Exhibit H-4 SUBCONTRACTOR'S INSURANCE REQUIREMENTS EXHIBIT TYPE UMBRELLA/EXCESS PROFESSIONAL POLLUTION LIABILITY LIABILITY LIABILITY Plumbing, Process Piping, HVAC, $8,000,000 Each Occurrence/ Fire Protection, Electrical $8,000,000 Aggregate Contractors, Tower Crane (Subs in this category must have a minimum combined limit between their General Liability and Umbrella/Excess Liability policies of no less than $10,000,000 Each Occurrence/$10,000,000 Aggregate) Foundation, Exterior Wall Panels, $3,000,000 Each Occurrence/ Dependent on Concrete, Masonry, Steel &Misc. $3,000,000 Aggregate Services to be Iron, Drywall, Elevator, Preformed— Windows/Curtainwall, Roofing, (Subs in this category must Required for anyone Indoor Fire Places, Resort Pools, have a minimum combined limit performing work that Low Voltage, Utilities, Earthwork, between their General Liability Dependent on Services to be could have an Flooring and Umbrella/Excess Liability environmental policies of no less than Performed impact, including but $5,000,000 Each not limited to: Occurrence/$5,000,000 Environmental Aggregate) Testing, Drilling or Excavation Low Hazard, e.g., Painting, Doors, $1,000,000 Each Occurrence/ Appliances, Millwork, Outdoor $1,000,000 Aggregate Fireplace, Window Treatments, Final Cleaning, Signage, Trash Control, (Subs in this category must Landscaping have a minimum combined limit between their General Liability and Umbrella/Excess Liability policies of no less than $3,000,000 Each Occurrence/$3,000,000 Aggregate) C. CERTIFICATES OF INSURANCE Construction Manager shall submit to Owner a Certificate of Insurance prior to commencement of construction. Owner will have the right, but not the obligation, to prohibit entry to the Project or Project Site until such certificates or other evidence that insurance has been placed in complete compliance with these requirements is received and approved by Owner. The Certificate must show details of the coverage required (i.e., waivers, additional insureds, primary/ non-contributory and, forms when specified). All policies must include and, the Certificate must show that these policies will not be materially changed, cancelled or non-renewed without thirty(30) days' prior written notice to Owner, except for ten-days advance notice for non-payment. As Construction Manager's policies renew new certificates of insurance evidencing the agreed upon coverage, terms and conditions must be provided to Owner, prior to the renewal date. At the request of the Owner, copies of full policies must be provided to the Owner. Construction Manager shall be responsible for verifying that all subcontractor's insurance is in compliance with the insurance requirements included within this Agreement and Construction Manager is responsible Exhibit H-5 for securing Certificates of Insurance from all Subs. The Certificate must show details of the coverage required (i.e., waivers, additional insureds, primary/ non-contributory and, forms when specified). All policies must include and, the Certificate must show that these policies will not be materially changed, cancelled or non-renewed without thirty (30) days' prior written notice to Owner. As subcontractor's policies renew new certificates of insurance evidencing the agreed upon coverage, terms and conditions must be provided to Owner, prior to the renewal date. At the request of the Owner, copies of full policies must be provided to the Owner. Construction Manager shall deliver to the Owner a copy of such Certificates of Insurance for their subcontractors prior to commencing the Work and, a copy of all renewal certificates prior to the renewal date. The insurance requirements set forth in this Section are not intended and shall not be construed to modify, limit or reduce any of the Construction Manager's duties of indemnity under the Contract. If Construction Manager or its subcontractors fail to obtain or maintain the required insurance, Owner shall have the right to treat such a failure as a breach of the Contract and to exercise all appropriate rights and remedies, including contract termination. The acceptance of delivery by Owner of any certificate of insurance evidencing the required coverages and limits does not constitute approval or agreement by Owner that the insurance requirements have been met or that the insurance policies shown in the certificates of insurance are in compliance with the requirements of this Agreement. For any of the coverages that are required to remain in force after final payment, an additional certificate evidencing continuation of such coverage will be provided to the Owner at each policy renewal for at least ten years. D. BUILDER'S RISK COVERAGE Owner shall purchase and maintain, property insurance written on a builder's risk "all-risk" or equivalent policy form in the amount of at least the initial Guaranteed Maximum Price, plus value of subsequent contract modifications and cost of materials supplied or installed by others, plus the value of the contents of the Project during construction for the entire Project at the site on a replacement cost basis, including costs to cover professional fees, without deductibles greater than $50,000 per occurrence, except that the deductible for the Cost of Correction or Making Good Amended Endorsement (U-ZBR-0307-A) can be $100,000. 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 the project has reached Substantial Completion or until no person or entity other than the Owner has an insurable interest in the property, whichever is later. This insurance shall protect the interests of the Owner(s), Construction Manager, Subcontractors of every tier in the Project. The Construction Manager and Subcontractors of every tier shall be Additional Insureds under such policies and a Waiver of Subrogation shall apply. This property insurance shall cover portions of the Work stored off the site and also portions of the Work in Transit. Losses or claims not paid by insurance because such losses or claims fall within the deductible shall be borne by the Construction Manager to the extent Construction Manager's or its Subcontractors' negligence caused or are responsible for the loss. Likewise, deductibles paid for losses or claims shall be paid by Construction Manager to the extent Construction Manager or its Subcontractors' negligence caused or was responsible for the loss or claim. Construction Manager's or its Subcontractors' liability for any deductible will be the lesser of$25,000 with the exception of water damage claims which trigger the Cost of Correction or Making Good Amended Endorsement(U-ZBR-0307-A). If the Cost of Correction or Making Good Amended Endorsement is triggered for any claim relating to water damage, Construction Manager or its Subcontractors, where their negligence caused or is responsible for the loss, will be subject to a $50,000 deductible. Partial occupancy or use shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use by endorsement or otherwise. Exhibit H-6 Loss of Use Insurance - The Owner, at the Owner's option, may purchase and 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. NOTE: It is not the responsibility of the Owner to insure machinery, tools, and any equipment that will not become a permanent part of the project. Such items are not insured under the Builder's Risk Policy. E. OTHER TERMS AND CONDITIONS APPLICABLE TO INSURANCE 1. Policies where Additional Insured and/or where Waiver of Subrogation status is required as a part of this Agreement shall extend to the full limits of liability maintained by the Construction Manager, even if those limits of liability are in excess of those required by this Agreement. 2. Insurance effected or procured by Construction Manager will not reduce or limit Construction Manager's contractual obligation to indemnify and defend Indemnitees for claims or suits which result from or are connected with the performance of this Contract. 3. All liability policies required to be furnished and maintained by Construction Manager shall be primary insurance to any other insurance that may be available to Owner and the other Indemnitees identified in the Contract. It is the intent of the parties to this Contract that all insurance coverage required herein shall be primary to and shall seek no contribution from all insurance available to Owner and such other Indemnitees, with Owner's and such other Indemnified Parties' insurance being excess, secondary, and non-contributing. 4. Requirements by lenders for this project and/or, the land owner may cause the insurance requirements within this document to be revised. However, any changes would be usual and customary to their interests and are unlikely to impact the cost of Construction Manager's insurance. 5. Except as noted otherwise, all deductibles and self-insured retention amounts in the above-described liability insurance policies shall be assumed by, for the account of, and at the sole risk of the Construction Manager or Subcontractor. F. SURETY REQUIREMENTS 1. Construction Manager's Bonds Construction Manager will be required to furnish a statutory payment bond and a performance bond that complies with Texas law for the Convention Center Scope of Work. Owner, at its discretion, may require Construction Manager to furnish a statutory payment bond and a performance bond that complies with Texas law for all other scopes of Work. 2. Subcontractors' Bonds To the extent that premium costs for payment and performance bonds furnished by Construction Manager's subcontractors are expressly reimbursable under Article 6 of the Agreement as Cost of the Work, such bonds shall be in form and substance satisfactory to the Owner and furnished prior to the commencement of construction of the Work of the respective subcontract under the Contract Documents. a. For each subcontractor bond, Construction Manager shall obtain from each such subcontractor and the subcontractor's surety a Dual or Multiple Obligee Rider, on a form acceptable to the Owner, naming as additional obligees the Owner's Lender, and such other persons or entities as reasonably required for Owner's financing. b. Each such surety bond must be executed by a responsible corporate surety acceptable to the Owner, holding a current certificate of authority from the United States Exhibit H-7 Department of Treasury to issue bonds to the federal government ("Treasury Listed"), and duly licensed and authorized to issue surety bonds in the jurisdiction in which the Project is located. C. If approved by Owner in writing, Construction Manager may instead provide Subcontractor Default Insurance as recognized in Section 6.6.1 of the Agreement. All deductibles or losses that are attributable to subcontractor default but that fall below the deductibles shall be borne by the Construction Manager. Exhibit H-8 EXHIBIT I NON-DISCLOSURE AND CONFIDENTIALITY REQUIREMENTS 1. Construction Manager recognizes and agrees that certain financial information furnished by Owner to Construction Manager regarding the financing of the Project and the Drawings and Specifications and other Contract Documents contain and comprise proprietary information and trade secrets of the Owner, its affiliates and third parties, and that the Drawings and Specifications and other Contract Documents and such other materials and information whether or not marked or specifically identified as CONFIDENTIAL (whether provided by the Owner or its affiliates or drawn or prepared by Construction Manager or any Subcontractor [of any tier] during performance of the Work) contain and comprise proprietary information and trade secrets of the Owner, its affiliates or third parties. Such trade secrets and proprietary information shall be regarded by Construction Manager as secret and confidential and Construction Manager, except for the purpose of the Contract, shall not publish or disclose to any third party or make use of such information without prior written consent transmitted by the Owner. 2. Construction Manager will obtain written agreements from its Subcontractors (or include provisions in its subcontract agreements) providing that such Subcontractors will hold secret and confidential all information which Construction Manager is required to regard as secret and confidential under this Contract for the purpose of their work for and on behalf of Construction Manager. Construction Manager will not disclose any information which it is required to regard as secret and confidential under this Contract to any Subcontractor or other third party who has not signed a written agreement that such party will hold secret and confidential all information which Construction Manager is required to regard as secret and confidential. 3. Neither Construction Manager nor any of its Subcontractors shall publish or release any publicity or public relations materials of any kind concerning or relating to this Contract, any Work to be performed pursuant thereto, any respective Project or proposed Project of the Owner, or any other activities of the Owner, unless such materials have first been reviewed and approved in writing by the Owner. Any request by a Subcontractor for consent in this respect shall not be acceded to unless such materials have first been reviewed and approved in writing by the Owner. This includes publication to social media, the internet, or any other public forum. This provision shall not apply to mandatory reports which Construction Manager or its Subcontractors are required by law to file with governmental authorities, or as may be ordered by a Court or legally required to provide by Applicable Law. Upon any such Court order or legal requirement, Construction Manager shall promptly notify Owner so that Owner may prevent such disclosure or seek applicable legal remedies. 4. The obligations of nonpublication, nondisclosure and nonuse imposed upon the parties shall apply(irrespective of any termination of the Contract)to all information except: (a) Information which at the time of supply or thereafter is in the public domain (otherwise than by any fault or omission on the part of the recipient); (b) Information which at the time of supply was in the possession of the recipient and was not acquired directly or indirectly from the other party or its affiliates; and (c) Information which is at any time received from a third party having a bona fide right to supply it and which (and to the extent to which) the recipient is or becomes free from all or any obligations to such third party not to disclose or use the same. 5. Upon completion or earlier termination of this Contract, Construction Manager shall promptly deliver to Owner all drawings, specifications, and other information relating to the Work with regard to all such completed or terminated Projects, and all copies thereof in Construction Manager's possession; provided however, Construction Manager may retain one complete copy of all drawings, specifications and other information. 6. Construction Manager shall not use photographs of any respective Project or the existence of this Contract for the purposes of trade advertisement, publicity material, or other publication to third parties without Owner's prior written approval thereof. Exhibit 1-1 EXHIBIT J PREVAILING WAGE RATES [See attached.] Exhibit J-1 RESOLUTION NO.R-2016-3760 '!WHEREAS, Texas Government Code Chapter 2258.022 requires a City to determine the general local prevailing rate of per diem wages for each craft or type of worker in the locality in which public work is to be performed; and WHEREAS, a City is required to: (1) conduct a survey of wages received by classes of workers employed on projects of character similar to public works contracts awarded by a City; or (2) use the prevailing wages rate as determined by the United States Department of Labor (DOL) in accordance with the Davis-Bacon Act (40 U.S.C. Section 276a et seq.), and its subsequent amendments; and WHEREAS, the City of Round Rock ("City") has previously used the prevailing wage rate as determined by the DOL in accordance with the Davis-Bacon Act for its public works contracts; and WHEREAS, City staff recently conducted a survey of wages received by classes of local workers employed on projects of character similar to the City's public works projects and determined that wages received by workers employed on similar projects are consistent with wage rates published by the Texas Workforce Commission for the Austin-Round Rock Area; and WHEREAS, the 2015 Texas Workforce Commission Wage Rates are attached hereto as Exhibit"A"; and WHEREAS,the City finds that based upon the results of the survey conducted, it is in the best interest to adopt the wage rates set forth by the Texas Workforce Commission for the Austin-Round Rock Area as the general prevailing wage rate for the City's public works contracts;Now therefore, BE IT RESOLVED BY THE COUNCIL OF THE CI'T'Y OF ROUND ROCK,TEXAS, That in accordance with Texas Government Code Chapter 2258.022(a)(1), City staff conducted a survey to determine the general prevailing rate of per diem wages and has determined that the Austin-Round Rock Area wage rates published by the Texas Workforce Commission accurately reflect the general prevailing wage rates for the locality. 011211604;003632341ss? Exhibit J-2 The City Council hereby adopts the wage rates published by the Texas Workforce Commission for the Austin-Round Rock Area, which establish the minimum rates that shall be used by all contractors or subcontractors on public works projects awarded by the City. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 8"'day of September,2016. 7 ALAN MCGRAW,Mayor City of Round Rock,Texas ATTEST: ';--PA4, L,r 0 �� SARA L. WHITE, City Clerk Exhibit J-3 2 EXHIBIT"A" 2015 ANNUAL TEXAS WORF'ORCE COMMISSION WAGE BATES Construction and Extraction Occupations Hourly wage $11,92 First-Line Supervisors of Construction Trades and Extraction Workers Hourly wage $20.16 Brickmasons and Blockmasons Hourly wage $20,24 Carpenters Hourly wage $12.42 Floor Layers,Except Carpet,Wood,and Hard Tiles Hourly wage $12.74 Tile and Marble Setters Hourly wage $11.79 Cement Masons and Concrete Finishers Hourly wage $12.18 Construction Laborers ,Hourly wage $10.08 Paving,Surfacing,&Tamping Equipment Operators Hourly wage $11.28 Operating Engineers and Other Construction Equipment Hourly wage $13.52 Drywall and Ceiling Tile Installers Hourly wage $12.72 Electricians Hourly wage $16.03 Glaziers Hourly wage $12.51 Insulation Workers,Floor,Ceiling,and Wall Hourly wage $12.67 Insulation Workers,Mechanical Hourly wage $14.21 Painters,Construction and Maintenance Hourly wage $11.67 Pipelayers Hourly wage $12.77 Plumbers,Pipefitters,and Steamfitters Hourly wage $14.39 Reinforcing Iron and Rebar Workers Hourly wage $12.58 Roofers Hourly wage $11.31 Sheet Metal Workers Hourly wage $12.76 Structural Iron and Steel Workers Hourly wage $13.50 Helpers—Brickmasons,Blockmasons,Stonemasons,and Tile and Hourly wage $10.78 Marble Setters Helpers—Carpenters Hourly wage $11.29 1. Exhibit J-3 Helpers--Electricians Hourly wage $11.24 Helpers—Painters,Paperhangers,Plasterers,and Stucco Masons Hourly wage $10.68 Helpers—Pipelayers,Plumbers,Pipefitters,and Steamfitters Hourly wage $10.57 Helpers,Construction Trades,All Other Hourly wage $9.87 Construction and Building Inspectors Hourly wage $20.15 Elevator Installers and Repairers Hourly wage $22.36 Hazardous Materials Removal Workers Hourly wage $14.15 Highway Maintenance Workers Hourly wage $12.70 Septic Tank Servicers and Sewer Pipe Cleaners Hourly wage $11.93 Construction and Related Workers,All Other Hourly wage $13.13 Service Unit Operators,Oil,Gas,and Mining Hourly wage $12.81 Earth Drillers,Except Oil and Gas Hourly wage $16,02 Rock Splitters,Quarry Hourly wage $10.84 Roustabouts,Oil and Gas Hourly wage $11.17 Installation,Maintenance,and Repair Occupations Hourly wage $12.31 First-Line Supervisors of Mechanics,Installers,and Repairers Hourly wage $19.84 Computer,Automated Teller&Office Machinery Repairers Hourly wage $10.44- Radio Mechanics Hourly wage $11.48 Telecommunications Equipment Installers and Repair Hourly wage $15.50 Avionics Technicians Hourly wage $30.54 Electric,Motor,Power Tool,and Related Repairers Hourly wage $13.59 Electrical and Electronic Installers and Repairers Hourly wage $19.25 Electrical and Electronics Repairers,Commercial and Residential Hourly wage $13.82 Electrical and Electronic Repairers,Powerhouse,Substation and RelayHourly wage $20.84 Electronic Equipment Installers and Repairers,Motor Vehicles Hourly wage $12.95 Electronic Home Entertainment Equipment Installers Hourlywage $10.93 2 Exhibit J-4 Security and Fire Alarm Systems Installers Hourly wage $15.47 Aircraft Mechanics and Service Technicians Hourly wage $21.00 Automotive Body and Related Repairs Hourly wage $14.86 Automotive Glass Installers and Repairers Hourly wage $13.74 Automotive Service Technicians and Mechanics Hourly wage $12.64 Bus&Truck Mechanics&Diesel Engine Specialists Hourly wage $14.75 Farm Equipment Mechanics Hourly wage $20.66 Mobile Heavy Equipment Mechanics,Except Engineers Hourly wage $15.35 Motorcycle Mechanics Hourly wage $11.07 Outdoor Power Equipment&Other Small Engine Mechanics Hourly wage $11.95 Bicycle Repairs Hourly wage $12.75 Tire Repairers and Changers Hourly wage $10.26 Mechanical Door Repairers Hourly wage $13.34 Control and Valve Installers and Repairers,Except Mechanical Door Hourly wage $14.60 Heating,Air Conditioning and Refrigeration Mechanics and Installers Hourly wage $14.41 Home Appliance Hourly wage $13.32 Industrial Machinery Mechanics Hourly wage $17.70 Maintenance Workers,Machinery Hourly wage $14.54 Millwrights Hourly wage $13.77 Electrical Power-Line Installers and Repairers Hourly wage $17.74 Telecommunications Line Installers and Repairers Hourly wage $1.4.32 Medical Equipment Repairers Hourly wage $17.44 Precision Instrument&Equipment Repairers,Other Hourly wage $14.27 Maintenance and Repair Workers,General Hourly wage $11.61 Coin,Vending and Amusement Machine Servicers and Repairers Hourly wage $10.73 Locksmiths and Safe Repairers Hourly wage $12.69 3 Exhibit J-5 Helpers—installation,Maintenance and Repair Workers Hourly wage $8.30 Installation,Maintenance&Repair Workers,Other Hourly wage $10.50 Production Occupations Hourly wage $9.92 First-Line Supervisor of Production and Operating Workers Hourly wage $17.00 Coli Winders,Tapers,and Finishers Hourly wage $11.69 Electrical and Electronic Equipment Assemblers Hourly wage $11.78 Electrochemical Equipment Assemblers Hourly wage $14.71 Structural Metal Fabricators and Fitters Hourly wage $1.3.06 Team Assemblers Hourly wage $9.95 Timing Device Assemblers,Adjuster&Calibrators Hourly wage $15.98 Assemblers and Fabricators,All Other Hourly wage $10.13 Computer-Controlled Machine Tool Operators,Metal and Plastic Hourly wage $12.44 Numeric Tool and Process Control Programmers Hourly wage $18.89 Extruding and Drawing Machine Setters,Operators Hourly wage $10.93 Cutting,Punching,and Press Machine Setters,Operators Hourly wage $10.29 Grinding,Lapping,Polishing,and Buffing Machine Hourly wage $10.33 Lathe and Turning Machine Tool Setters,Operators Hourly wage $14.17 4 Exhibit J-6 EXHIBIT K [RESERVED]. Exhibit K-1 EXHIBIT L THE CITY OF ROUND ROCK/TEDCO'S MAXIMUM FINANCIAL RESPONSIBILITY PURSUANT TO AGREEMENT Construction Manager acknowledges that the Convention Center scope of Work is part of a larger Master Project, which includes the Convention Center, Hotel, Indoor Water Park, and Onsite Public Infrastructure. The Convention Center is owned by the City of Round Rock (the "City"), and the Master Project is being developed by KR Acquisitions LLC ("KRA") pursuant to a Master Development Agreement ("Master Development Agreement") between the City, TEDCO, and KRA. In accordance with the Master Development Agreement, the City/TEDCO has a maximum amount of funding to contribute to the design and construction of the Convention Center. Construction Manager acknowledges that the City/TEDCO's total contribution to the Convention Center portion of the Master Project shall not exceed Forty Million and No/100 Dollars ($40,000,000.00), which includes payments to HKS, Inc. ("HKS") for architectural services. The estimated total amount to be paid by the City to HKS is $2,953,744.00. TEDCO shall pay to Construction Manager for Work under this Agreement, the difference between $40,000,000 and the total amount due to HKS (the "City Contribution"). To the extent that the Contract Sum for the Convention Center pursuant to this Agreement exceeds the City Contribution, the amounts in excess of the City Contribution due and owing under the terms of the Agreement to Construction Manager shall be paid by KR CC, Inc. (the "KRCC Amount"). Under no circumstances shall the combined total amount of the City Contribution and KRCC Amount exceed the Guaranteed Maximum Price for the Convention Center. Notwithstanding anything to the contrary in the Agreement, Construction Manager agrees that the City/TEDCO's obligations for payment for construction of the Convention Center under the Agreement is limited to the City Contribution. TEDCO acknowledges and agrees that any right to Liquidated Damages pursuant to this Agreement, if any, is hereby assigned to KR Acquisitions LLC and KR CC, Inc. [SIGNATURES ON NEXT PAGE] Exhibit L-1 AGREED: ROUND ROCK TRANSPORTATION AND ECONOMIC DEVELOPMENT CORPORATION By: tea . LL. Its: 440sident- CITY OF ROUND ROCKtfiE S By: r VVI L-L, R&KA41 Y KR CC, Inc., a Delaware Corporation By: Todd R. Nelson Its: President HENSEL PH-EtlP a Delawar y 'neral Partnership By: �1 l I�q►�15 Its: peapitw- Exhibit L-2 AGREED: ROUND ROCK TRANSPORTATION AND ECONOMIC DEVELOPMENT CORPORATION By: Craig Morgan Its: President CITY OF ROUND ROCK, TEXAS By: Craig Morgan, Mayor KR CC, Inc., a Delaware Corporation 7�� �VL By: Todd R. Nelson Its: President HENSEL PHELPS a Delaware General Partnership By: Its: Exhibit L-2 EXHIBIT M CONSTRUCTION MANAGER DESIGNED WORK Construction Manager agrees that portions of the Work may be required by the Contract to be designed and constructed by Construction Manager (the "Construction Manager Designed Work"). Construction Manager will cause the design of all Construction Manager Designed Work to be performed by one or more Subcontractors retained by Construction Manager(Design-Build Subcontractors). Standard of Care. These Design-Build Subcontractors shall perform all professional design services required by the Contract consistent with the professional skill and care ordinarily provided by architects or engineers practicing in the same or similar locality under the same or similar circumstances, and with regard to projects of this nature, size, and complexity. Owner-Supplied Information. 1. Owner or Architect, HKS, Inc., will provide Construction Manager with complete Project criteria, programming requirements, bridging documents, if any, and all other information reasonably necessary for Construction Manager to meet the Project requirements ("Owner-Supplied Information") in accordance with Contractor's schedule. 2. Unless expressly stated to the contrary in the Contract Documents, Owner shall provide, at its own cost and expense, for Contactor's information and use the following, and which shall also be considered Owner-Supplied Information: L Surveys describing the property, boundaries, topography and reference points for use during construction, including existing service and utility lines; ii. Geotechnical studies describing subsurface conditions, and other surveys describing other latent or concealed physical conditions at the Site; iii. Temporary and permanent easements, zoning and other requirements and encumbrances affecting land use, or necessary to permit the proper design and construction of the Project and enable Construction Manager to perform the Work; iv. A legal description of the Site, as set forth in Exhibit B to the Agreement; and V. To the extent available, environmental studies, reports and impact statements describing the environmental conditions, including Hazardous Substances, in existence at the Site. 3. Construction Manager shall be entitled to reasonably rely on the accuracy of the information represented in the Owner-Supplied Information or any design specifications contained in the Owner-Supplied Information, but to the extent that Construction Manager recognizes inaccuracies or defects in such Owner-Supplied information, Construction Manager will notify Owner of same. Construction Manager shall be entitled to an adjustment in the Contract Sum, to the extent that Construction Manager incurs actual additional costs subject to the terms of the Agreement, and Contract Time to the extent Contractor's cost or time of performance have been adversely impacted by inaccurate Owner-Supplied Information, but only to the extent that the critical path is adversely impacted. Exhibit M-1 Work Product.All drawings, specifications, and other documents and electronic data furnished by Construction Manager to Owner("Work Product")are deemed to be instruments of service and Owner shall be considered the owner of the instruments of service and shall have property interests therein consistent with the terms of the Agreement, including but not limited to any intellectual property rights, copyrights, and patents, subject to the Owner's payment for the instruments. Construction Manager Performance. Subject to the Standard of Care, Construction Manager Designed work will be performed in accordance with the following requirements: Construction Manager shall cause the respective Design-Build Subcontractor to prepare and submit to the Construction Manager and Owner and Architect for review and approval, drawings and specifications for the installation of the Construction Manager Designed Work(the"Construction Manager Designed Drawings") in accordance with the Owner-Supplied Information. The Construction Manager Designed Drawings shall be prepared and submitted in accordance with a submittal schedule established by the Contractor. The appropriate Subcontractor shall revise the Construction Manager Designed Drawings for the Construction Manager Designed Work as may be required by the Architect to conform to the Owner-Supplied Information and the Contract Documents. Construction Manager shall cause the design of the Construction Manager Designed Work, the Construction Manager Designed Drawings, and the installation of the Construction Manager Designed Work to comply with (i) the requirements of the Contract Documents; and (ii) Applicable Law. Construction Manager shall obtain, or cause the appropriate Subcontractor to obtain all required approvals prior to the commencement of installation of the Construction Manager Designed Work. Construction Manager and/or the Design-Build Subcontractors shall work with the Architect to coordinate the Construction Manager Designed Work with the Contract Documents; provided that, the Architect shall have overall responsibility to ensure that the Project Construction Documents, including the Construction Manager Designed Drawings are complete, fully coordinated and that the Construction Manager Designed Work interfaces properly with the other Construction Documents prepared by the Architect and the other consultants engaged by the Owner. Neither the review nor approval by the Architect or the other consultants of the Owner with respect to the working drawings or other documents prepared by the Design-Build Subcontractor(s) hereunder shall relieve Construction Manager or the respective Design-Build Subcontractor of its obligations hereunder. The design and engineering services required for any Construction Manager Designed Work shall be performed by person(s) or entity(ies) lawfully licensed to practice architecture or professional engineering in the state in which the Project is located and all Construction Manager Designed Drawings shall be properly sealed as required. Except the extent cause by a Construction Manager or Design-Build Subcontractor(s)failure to comply with the Standard of Care in the performance of its professional services, the Contract Sum or Contract Time or GMP shall be adjusted to compensate Construction Manager for any changes to the Construction Manager Designed Work, including revisions to the Construction Manager Designed Drawings necessitated by the directives of the Architect or the Owner, changes to or errors in the Owner- Supplied Information or Construction Documents or the effects of any changes in the legal requirements enacted after the date of the Contract affecting the performance of the Work. 20448215v.3 Exhibit M-2 UMW � �=030 Document A2OITM - 2007 General Conditions of the Contract for Construction for the following PROJECT: (Name and location or address) Round Rock Convention Center ADDITIONS AND DELETIONS: The author of this document has added information needed for its THE OWNER: completion.The author may also (Name, legal status and address) have revised the text of the original Round Rock Transportation and Economic Development Corporation AIA standard form.An Additions and Deletions Report that notes added information as well as revisions to THE ARCHITECT: the standard form text is available (Name, legal status and address) from the author and should be IRKS,Inc. reviewed.A vertical line in the left margin of this document indicates where the author has added necessary information and where the author has added to or deleted from the original AIA text. This document has important legal consequences.Consultation with an attorney is encouraged with respect to its completion or modification. Inst. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING;This AIA) Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this.AIA,'Document.or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) TABLE OF ARTICLES 1 GENERAL PROVISIONS 2 OWNER 3 CONTRACTOR 4 ARCHITECT 5 SUBCONTRACTORS 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 7 CHANGES IN THE WORK 8 TIME 9 PAYMENTS AND COMPLETION 10 PROTECTION OF PERSONS AND PROPERTY 11 INSURANCE AND BONDS 12 UNCOVERING AND CORRECTION OF WORK 13 MISCELLANEOUS PROVISIONS 14 TERMINATION OR SUSPENSION OF THE CONTRACT 15 CLAIMS AND DISPUTES Init. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA'' Document is protected by U.S.Copyright Law and International Treaties,Unauthorized 2 reproduction or distribution of this AIA'Document,or any portion of it.may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) ARTICLE 1 GENERAL PROVISIONS §1.1 BASIC DEFINITIONS §1.1.1 THE CONTRACT DOCUMENTS The Contract Documents consist of the Agreement between Owner and Contractor,inclusive of all exhibits attached thereto(the"Agreement"),the General Conditions of the Contract,Drawings,Specifications,Addenda issued prior to execution of the GMP Amendment to the Agreement,other documents listed in the Agreement and Modifications issued after execution of the Contract,all of which form the Contract and are as fully part of the Contract as if attached to this Agreement or repeated herein.A modification("Modification")is(1)a written amendment to the Contract signed by both parties,(2)a Change Order,(3)a Construction Change Directive or(4)a written order for a minor change in the Work issued by the Architect or Owner. §1.1.2 THE CONTRACT The Contract Documents form the Contract for Construction("Contract").The Contract represents the entire and integrated agreement between the parties 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(1)between the Contractor and the Architect or the Architect's consultants,(2)between the Owner and a Subcontractor or a Sub-subcontractor(except where specifically provided herein),(3)between the Owner and the Architect or the Architect's consultants or(4)between any persons or entities other than the Owner and the Contractor. §1.1.3 THE WORK The term"Work"means the construction and services required by the Contract Documents,whether completed or partially completed,and includes all labor,materials,equipment and other services provided or to be provided by the Contractor to fulfill the Contractor's obligations.The Work may constitute the whole or a part of the Project. The Work includes all labor,materials,parts,supplies,skills,supervision,transportation,services,and other facilities and things necessary,proper,or incidental to the carrying out and completion of the terms of the Contract Documents and all other items needed to produce,construct,and fully complete the Work items shown by the Contract Documents. §1.1.4 THE PROJECT The term"Project"means 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 and by separate contractors. §1.1.5 THE DRAWINGS The term"Drawings"or"Plans")means the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work,generally including plans,elevations,sections,details,schedules and diagrams. §1.1.6 THE SPECIFICATIONS The term"Specifications"means 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. §1.1.7 INSTRUMENTS OF SERVICE The term "Instruments of Service"means representations,in any medium of expression now known or later developed,of the tangible and intangible creative work performed by the Architect and the Architect's consultants under their Inst. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA5 Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 3 reproduction or distribution of this AIA'''Document.or any portion of it.may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law,This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) respective professional services agreements.Instruments of Service may include,without limitation,studies, surveys,models,sketches,drawings,specifications,and other similar materials. §1.1.8 CONTRACT TIME The term"Contract Time"means the period of time which is allotted in the Contract Documents for Substantial Completion of the Work,taking into account authorized adjustments as may be properly permitted and as set forth in Article 8. The term"Critical Milestone(s)"means the milestones identified in Exhibit D,or as the parties may otherwise agree in writing. §1.1.9 KNOWLEDGE. The terms"knowledge,""recognize,"and"discover,"their respective derivatives,and similar terms in the Contract Documents,as used in reference to the Contractor,shall be interpreted to mean that which the Contractor knows,recognizes,and discovers in exercising the care,skill and diligence required by the Contract Documents.Analogously,the expression"reasonably inferable"and similar terms in the Contract Documents shall be interpreted to mean reasonably inferable by a contractor with sufficient industry experience in completing work of the kind and nature like the Project and familiar with the Project in exercising the care,skill and diligence required of the Contractor by the Contract Documents. §1.1.10 APPLICABLE LAWS. Unless the context clearly requires otherwise,the term"Applicable Laws"means all applicable present governmental statutes,laws,codes,orders,ordinances,regulations,standards,requirements, codes,practices and rules and the requirements of all federal,state and municipal governments,courts,departments, commissions,boards or any other body exercising functions similar to the foregoing,and other entities having jurisdiction or rights of approval affecting the Project or the site during the performance of the Work. §1.1.11 FORCE MAJEURE. The term"Force Majeure"shall mean and be limited to catastrophic events such as wars,civil disturbances,terrorist attacks,revolts,insurrections,sabotage,or abnormal or unexpected weather conditions;provided that such act or event(1)delays the Owner or the Contractor's performance of its obligations under the Agreement,(2)is beyond the reasonable control of the party claiming Force Majeure and not due to its fault or negligence,and(3)could not have been prevented or avoided by the party claiming Force Majeure through the exercise of due diligence. For the avoidance of doubt,"Force Majeure"shall not include any of the following: (i)economic hardship,(ii)changes in market conditions,(iii)late delivery or failure of materials,equipment,or supplies,(iv)local or direct strikes,or other similar labor actions,(v)unavailability of Subcontractors,or suppliers, or(vi)nonperformance or delay by the Contractor or its Subcontractors or suppliers. As the term is used in this Contract"abnormal or unexpected weather conditions"shall mean catastrophic storms or floods,tornadoes, hurricanes,and earthquakes abnormal for the locale or time of the year. §1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS §1.2.1 The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor.The Contract Documents are complementary,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. In the event of conflicts or discrepancies among the Contract Documents, the Contract Documents shall be interpreted on the basis of the following priorities: (1) written Modifications issued after execution of this Agreement,including the GMP Amendment,with the Modification bearing the latest date taking precedence; (2) the Agreement,including the Exhibits attached hereto,but not including the General Conditions; (3) the General Conditions; (4) the Drawings and Specifications identified in and incorporated into the Contract Documents,with those addenda and revisions bearing the latest date taking precedence. Without limiting the foregoing,the terms of the Agreement and the General Conditions shall control over any terms in the Drawings or Specifications inconsistent therewith.In case of conflicts between the Drawings and the Specifications,or within either the Drawings or the Specifications,the Architect or the Owner may interpret the Drawings and Specifications so as to secure the most comprehensive performance of the Work consistent with the intent and requirements of the Contract. Init. AIA Document A201 TM—2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 4 reproduction or distribution of this AIA''Document.or any portion of it.may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADAOB) §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. §1.2.3 Unless otherwise stated in the Contract Documents,words that have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. §1.3 CAPITALIZATION Terms capitalized in these General Conditions include those that are(1)specifically defined herein,(2)the titles of numbered articles and identified references to Sections,Paragraphs,or Subparagraphs in the document,or defined in the Agreement,including all Exhibits hereto. §1.4 INTERPRETATION 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. §1.5 OWNERSHIP AND USE OF DRAWINGS,SPECIFICATIONS AND OTHER INSTRUMENTS OF SERVICE §1.5.1 The Drawings,Specifications and other documents,including those in electronic form,prepared by the Architect,the Architect's consultants,Owner,or Owner's Consultants are the property of the Owner and/or those respective parties based upon separate agreements not set forth herein. The Contractor may retain one record set. Neither the Contractor nor any Subcontractor or material or equipment supplier shall own or claim a copyright in the Drawings,Specifications and other documents prepared by the Architect,the Architect's consultants and/or Owner. All copies of Drawings and Specifications and other documents,prepared by the Architect,and the Architect's consultants,and/or Owner,including the Contractor's record set,shall be returned or suitably copied for the Owner or the Architect,as directed,on request,upon completion of the Work. The Drawings,Specifications and other documents prepared by the Architect,the Architect's consultants and/or Owner,and copies thereof furnished to the Contractor,are for use solely with respect to this Project. They are not to be used by the Contractor or any Subcontractor,or material or equipment supplier on other projects without the specific written consent of the Owner.The Contractor,Subcontractors,and material or equipment suppliers are authorized to use and reproduce applicable portions of the Drawings, Specifications and other documents prepared by the Architect,the Architect's consultants,Owner,or Owner's consultants appropriate to and for use in the execution of their Work under the Contract Documents. All copies made under this authorization shall bear the statutory copyright notice,if any, shown on the Drawings,Specifications and other documents prepared by the Architect and the Architect's consultants. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with this Project is not to be construed as publication in derogation of the Owner's copyrights or other reserved rights. §1.6 TRANSMISSION OF DATA IN DIGITAL FORM If the parties intend to transmit Instruments of Service or any other information or documentation in digital form, they shall endeavor to establish necessary protocols governing such transmissions,unless otherwise already provided in the Agreement or the Contract Documents. ARTICLE 2 OWNER §2.1 GENERAL §2.1.1 The Owner is the person or entity identified as such in the Agreement and is 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 Owner with respect to all matters requiring the Owner's approval or authorization. Except as otherwise provided in the Contract Documents,the Architect does not have such authority.The term "Owner"means the Owner or the Owner's authorized representative. §2.1.2 The Owner shall furnish to the Contractor within a reasonable amount of time after receipt of a written request,information necessary and relevant for the Contractor to evaluate,give notice of or enforce mechanic's lien rights. Such information shall include a correct statement of the record legal title to the property on which the Project is located,usually referred to as the site,and the Owner's interest therein. Init. AIA Document A201 T^^-•2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA® Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 5 reproduction or distribution of this AIA'Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) §2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER §2.2.1 Except for permits and fees,including those required under Section 3.7,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 the construction,use or occupancy of permanent structures as required by the Contract Documents.Prior to commencement of the Work,and thereafter,the Owner shall furnish to the Contractor reasonable evidence that the Owner has made financial arrangements to fulfill the Owner's obligations under the Contract..Upon request of the Contractor,Owner shall furnish such evidence as a condition precedent to commencement or continuation of the Work.Contractor shall keep all such information confidential as set forth in Exhibit Ito this Agreement.After the Owner furnishes the evidence,if Owner substantially varies such arrangements such that it may effect Owner's ability to fund the Project,Owner shall give Contractor written notice of such variations. §2.2.2 Unless otherwise provided in the Contract Documents,the Contractor will be furnished,free of charge,one reproducible set of Drawings and Specifications as are reasonably necessary for execution of the Work. §2.2.3 The Owner shall furnish surveys describing physical characteristics,legal limitations and utility locations for the site of the Project,and a legal description of the site.The Contractor shall be entitled to rely on the accuracy of information furnished by the Owner pursuant to this Section 2.2.3,but shall exercise proper precautions relating to the safe performance of the Work. §2.2.4 The Owner shall furnish information or services required of the Owner by the Contract Documents with reasonable promptness.The Owner shall also furnish any other information or services under the Owner's control and relevant to the Contractor's performance of the Work with reasonable promptness after receiving the Contractor's written request for such information or services,and details regarding timing of such responses. §2.3 OWNER'S RIGHT TO STOP THE WORK The Owner has the right to stop the Work, if the Contractor: (a) fails to carry out the Work in accordance with the Contract Documents; (b) fails to correct Work that is not in accordance with the requirements of the Contract Documents as required by Section 12.2; (c) fails or refuses to provide a sufficient amount of properly supervised and coordinated labor,materials, or equipment,so as to be able to complete the Work within the Contract Time; (d) fails to remove or discharge any lien claim upon Owner's property by anyone claiming by,through,or under Contractor promptly after such filing for work which Contractor has previously been paid; or (e) disregards the instructions of Owner or Architect when based upon the requirements of the Contact 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. §2.4 OWNER'S RIGHT TO CARRY OUT THE WORK §2.4.1 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,or fails within such seven-day period to eliminate(or diligently commence to eliminate)the cause of any stop work order issued,the Owner may,after such seven(7)day period 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 without limitation Owner's expenses and compensation for the Architect's additional services made necessary by such default,neglect,or failure. Such action by the Owner and amounts charged to the Contractor shall be reasonable and necessary.If payments then or thereafter due the Contractor are not sufficient to cover such amounts,the Contractor shall pay the difference to the Owner. The rights of the Owner hereunder shall not give rise to any duty on the part of the Owner to exercise same for the benefit of the Contractor or any other person or entity. If providing the above-referenced prior notice to the Contractor is not Init. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIAx Document is protected by U.S,Copyright Law and International Treaties.Unauthorized a reproduction or distribution of this A€As'Document.or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) reasonable because of an emergency or exigent circumstances,the Owner will provide only such prior notice which is reasonable under the circumstances. §2.4.2 After the Work is complete,the Owner may make emergency repairs to the Work if necessary to prevent further damage,or if the Contractor does not promptly respond to a notice of a condition requiring repairs. Contractor shall be responsible to Owner for this cost if the reason for the repairs is defects in Contractor's Work. If payments then or thereafter due the Contractor are not sufficient to cover such costs,the Contractor shall promptly pay the difference to the Owner. §2.5 EXTENT OF OWNER'S RIGHTS §2.5.1 The rights stated in this Article 2 and elsewhere in the Contract Documents are cumulative and not in limitation of any rights of the Owner granted in the Contract Documents,at law,or in equity. §2.5.2 Notwithstanding any of the rights and authority granted the Owner in the Contract Documents,in no event shall the Owner exercise control over,take charge of,or assume any responsibility for construction means,methods, techniques,sequences,procedures,or for safety precautions and programs in connection with the Work,except that the Owner may reject construction means,methods,sequences,or procedures that are likely,in the opinion of the Owner or Architect,to result in a failure of the Work to comply with the requirements of the Contract Documents. ARTICLE 3 CONTRACTOR/CONSTRUCTION MANAGER §3.1 GENERAL §3.1.1 The Contractor is the person or entity identified as such in the Agreement as"Construction Manager"and is referred to throughout the Contract Documents as if singular in number.The Contractor shall be lawfully licensed,if required in the jurisdiction where the Project is located.The Contractor shall designate in writing a representative who shall have express authority to bind the Contractor with respect to all matters under this Contract.The term "Contractor"means the Contractor or the Contractor's authorized representative. §3.1.2 The Contractor shall perform the Work in accordance with the Contract Documents,submittals approved pursuant to the Contract Documents,and Applicable Laws. §3.1.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect in the Architect's administration of the Contract,or by tests, inspections or approvals required or performed by any Owner consultants,or other persons or entities other than the Contractor. §3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR §3.2.1 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. §3.2.2 Because the Contract Documents are complementary,the Contractor shall,before starting each portion of the Work,carefully study and compare the various Contract Documents relative to that portion of the Work,as well as the information furnished by the Owner pursuant to Section 2.2.3,shall take field measurements of any existing conditions related to that portion of the Work,and shall observe any conditions at the site affecting it and shall promptly report to the Owner and Architect any errors,omissions,or inconsistencies in or within the Contract Documents of which the Contractor has knowledge or discovered(or in the exercise of its Standard of Care should have discovered with regard to scopes of Work that expressly contain a design-build aspect to them)by acting in accordance with the Standard of Care as defined in the Agreement. The Contractor hereby agrees that it shall not be entitled to additional compensation,whether by Change Order,Claim or otherwise,for any such items,irrespective of whether such items constitute errors, inconsistencies,or omissions in the Contract Documents,to the extent that Contractor knew of such items and did not report them to the Owner or Architect. If after Contractor discovers any error,inconsistency,omission,or difference and Contractor proceeds with the Work knowing it to be in error, Contractor shall bear all costs of correcting that portion of the Work so performed and any re-work required by surrounding areas damaged by the correcting of the work. Notwithstanding the foregoing,the exactness of grades, elevations,dimensions,or locations given on any Drawings issued by the Architect,or the work installed by other Init. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 7 reproduction or distribution of this AIA'Document.or any portion of it.may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) contractors, is not guaranteed by the Architect or the Owner. The Contractor shall,therefore,satisfy itself as to the accuracy of all grades,elevations,dimensions,and locations. In all cases of interconnection of its Work with other work,it shall verify at the site all dimensions relating to such existing or other work.Any errors due to the Contractor's failure to so verify all such grades,elevations,locations,or dimensions shall be promptly rectified by the Contractor without any additional cost to the Owner. §3.2.3 The Contractor's responsibility under Subparagraph 3.2.2 hereof to discover errors,inconsistencies and omissions within the Contract Documents and contraventions with Applicable Law,shall be limited to inconsistencies,omissions and variances that should have been detected by an experienced contractor acting in accordance with the Standard of Care and only as to the scopes of Work for which Contractor,or its subcontractors, have a design-build aspect to the Work.The Contractor shall not be deemed to have assumed the duties of a licensed architect,unless such duties are included in portions of the Contractor's express scope of design-build Work.The Contractor is not required to ascertain that the Contract Documents are in accordance with applicable laws,statutes, ordinances,codes,rules and regulations,or lawful orders of public authorities,but the Contractor shall promptly report to the Architect any nonconformity discovered by or made known to the Contractor as a request for information in such form as the Architect may require. §3.2.4 If the Contractor believes that additional cost or time is involved because of clarifications or instructions issued by the Owner or the Architect in response to the Contractor's notices or requests for information pursuant to Sections 3.2.2 or 3.2.3,the Contractor shall make Claims as provided in Section 4.3.If the Contractor fails to perform the obligations of Sections 3.2.2 or 3.2.3,the Contractor shall pay such costs and damages to the Owner as would have been avoided if the Contractor had performed such obligations.If the Contractor performs those obligations,the Contractor shall not be liable to the Owner or Architect for damages resulting from errors, inconsistencies or omissions in the Contract Documents,for differences between field measurements or conditions and the Contract Documents,or for nonconformities of the Contract Documents to Applicable Laws,unless Contractor had knowledge of such error,inconsistency,omission,or difference and failed to report it to the Owner and Architect. §3.3 SUPERVISION AND CONSTRUCTION PROCEDURES §3.3.1 The Contractor shall supervise and direct the Work,using the Contractor's skill and attention.The Contractor shall be responsible for,and have control over,construction means,methods,techniques,sequences and procedures and for coordinating all portions of the Work under the Contract.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 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 Architect and shall not proceed with that portion of the Work without further written instructions from the Owner and the Architect.If the Contractor is then instructed in writing to proceed with the required means,methods, techniques,sequences or procedures without acceptance of changes proposed by the Contractor,the Contractor Owner shall not be solely responsible for any resulting loss or damage arising solely from those Owner-required means,methods,techniques,sequences or procedures. §3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's employees, Subcontractors,suppliers,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 and suppliers. §3.3.3 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. The presence of the Owner or its representatives, consultants,or other contractors,at the Project site does not imply acceptance or approval of the Work. §3.4 LABOR AND MATERIALS §3.4.1 Unless otherwise provided in the Contract Documents,the Contractor shall provide and pay for labor, materials,equipment,tools,construction equipment and machinery,water,heat,utilities,transportation,and other facilities and services necessary for proper execution and completion of the Work,whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. Inst. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA® Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 8 reproduction or distribution of this AIA''Document.or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law,This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) §3.4.2 The Contractor may make substitutions only with the written consent of the Owner,after evaluation by the Architect and in accordance with a Change Order or Construction Change Directive. §3.4.3 The Contractor shall at all times furnish an adequate supply of qualified workers and enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Work.The Contractor shall not permit employment of unfit persons or persons not properly skilled in tasks assigned to them. The Contractor shall dismiss from the Work any employee of the Contractor or any Subcontractor to whom the Owner makes a reasonable objection. The Contractor shall not permit alcoholic beverages or illegal drugs on the site at any time. §3.4.4 Contractor understands and agrees that if its employees or other person carrying out the Work engage in unsafe,inappropriate,offensive,or disorderly conduct,or harasses Owner, its guests,employees,patrons,or anyone else on site,Owner may require Contractor to remove such offending employees from site. Contractor shall only employ labor on the Project or in connection with the Work capable of working harmoniously with all trades,crafts, and any other individuals associated with the Project. The Contractor shall require the same of its Subcontractors, and shall also use reasonable efforts to minimize the likelihood of any strikes,work stoppages,or other labor disturbance. §3.4.5 Where no specific kind,make,or quality of material is specified,a new standard article shall be furnished, subject to the prior written approval of the Owner and the Architect. §3.5 WARRANTY §3.5.1 The Contractor warrants to the Owner that materials and equipment furnished under the Contract will be either in the manner specified or,if not specified,then of a new standard and of good quality,and,unless otherwise required or permitted by the Contract Documents,new,that the Work will be free from defects,and that the Work will conform to the requirements of the Contract Documents. Work not conforming to these requirements at any time,including substitutions not properly approved and authorized,shall be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse by Owner or Owner's employees,modifications not executed by the Contractor,improper or insufficient maintenance by Owner or Owner's employees,improper operation by Owner or Owner's employees,or normal wear and tear and normal usage.The Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment upon request by Owner or Architect. §3.5.2 In addition to the warranty in Section 3.5.1 and without limiting the Contractor's obligations under said warranty,if,within one year after the date of Substantial Completion of the Work or a designated portion thereof, 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 express written acceptance of such condition. The Owner shall endeavor to give notice promptly after discovery of the condition.During the one-year period for correction of the Work,if the Owner fails to notify the Contractor and give the Contractor an opportunity to make the correction,the Owner waives the right to require correction by the Contractor or to charge the Contractor the costs of the repair. This one-year period for correction of the Work is in addition to and not in lieu of the general warranty under Section 3.5.1 that the Work shall,at all times,be free of defects and shall conform to the requirements of the Contract Documents. §3.5.3 The Contractor and Subcontractors shall follow manufacturers' recommendations and instructions regarding warranty requirements and submit the proper documentation and forms necessary to identify the Owner as the product's owner. Upon Substantial Completion,the Contractor shall provide a list identifying each product,the manufacturers'warranty period and the date of expiration of the warranty. The Contractor agrees to assign to the Owner at the time of final completion of the Work and,as a condition to final payment,any and all manufacturer's warranties relating to materials and labor used in the Work and further agrees to perform the Work in such manner so as to preserve any and all such manufacturer's warranties. The Contractor warrants that all manufacturers'or other warranties on all materials and equipment furnished by or through the Contractor shall run directly to or be specifically assigned to the Owner at Substantial Completion of the Project The Contractor warrants that the installation of all materials and equipment shall be in strict accordance with the manufacturers' requirements or specifications,as applicable. If required by the Contract Documents,prior to Substantial Completion,the Contractor shall obtain a statement from the manufacturer approving the Contractor's installation of all materials and equipment. If the Owner seeks to enforce a claim based upon a manufacturer's warranty and such manufacturer fails to honor its warranty based, in whole or in part,on a claim of defective installation,the Owner shall be entitled to enforce any claim for defective installation against the Contractor. Notwithstanding the foregoing,Owner's Inst. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AM*Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) claims against Contractor shall not extend past the statute of repose pursuant to Applicable Law in effect on the date of this Agreement. §3.6 TAXES The Contractor shall pay sales,consumer,use and similar taxes for the Work provided by the Contractor that are legally enacted upon submission of each of the GMP Proposals. §3.7 PERMITS,FEES,NOTICES,AND COMPLIANCE WITH LAWS §3.7.1 Owner shall pay for the building permits. Unless otherwise provided in the Contract Documents,the Contractor shall secure and pay for other permits,fees,licenses,and inspections by government agencies necessary for proper execution and completion of the Work that are customarily secured after execution of the Contract and legally required upon submission of each of the GMP Proposals. Contractor shall also secure such certificates of inspection and occupancy as may be required by authorities having jurisdiction over the Work. §3.7.2 The Contractor shall comply with and give notices required by Applicable Laws and lawful orders or other requirements of public authorities applicable to performance of the Work. §3.7.3 If the Contractor performs Work knowing it to be contrary to applicable laws,statutes,ordinances,codes, rules and regulations,or lawful orders of public authorities,the Contractor shall assume appropriate responsibility for such Work and shall bear the costs attributable to correction. §3.8 ALLOWANCES §3.8.1 The Contractor shall include in the Guaranteed Maximum Price 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,but the Contractor shall not be required to employ persons or entities to whom the Contractor has reasonable objection. §3.8.2 Unless otherwise provided in the Contract Documents, .1 Allowances shall cover the cost to the Contractor of materials labor,installation costs,and equipment delivered at the site and all required taxes,less applicable trade discounts; .2 Contractor's costs for unloading and handling at the site,overhead,profit and other expenses contemplated for stated allowance amounts shall be included in the GMP;and .3 Whenever costs are more than or less than allowances,the Guaranteed Maximum Price shall be adjusted accordingly by Change Order.The amount of the Change Order shall reflect(1)the difference between actual costs and the allowances under Section 3.8.2.1 and(2)changes in Contractor's costs under Section 3.8.2.2. §3.8.3 Materials and equipment under an allowance shall be selected by the Owner with reasonable promptness and in sufficient time to avoid delay in the Work,when Contractor provides Owner with notice of timing required. §3.8.4 Contractor shall keep separate and accurate records of all allowances and shall submit such records to Owner from time to time upon request. Owner shall be responsible for costs incurred in excess of allowance amounts only to the extent approved by Owner in writing. §3.9 SUPERINTENDENT §3.9.1 The Contractor shall employ a competent superintendent("Superintendent")and necessary assistants who shall be in attendance at the Project site at all times during performance of the Work.The Superintendent shall represent the Contractor,and communications given to the Superintendent shall be as binding as if given to the Contractor.Important communications shall be confirmed in writing in order to be binding. Other communications shall be similarly confirmed on written request in each case. The Superintendent shall complete a daily jobsite report documenting all activities and events that have taken place on that day. Such report shall include,Contractor staffing levels,Subcontractor staffing levels,weather,Project visitors,a description of work performed and comparison against scheduled Work activities,any issues or events affecting performance of the Work and any other requirements under the Agreement. Init. AIA Document A201 TM—2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA" Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 10 reproduction or distribution of this AIA''Document,or any portion of it.may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) §3.9.2 The parties acknowledge and agree that,as part of the selection process of the Contractor by the Owner and prior to the execution of the Agreement,the Contractor has submitted the names of its Key Personnel,including the Contractor's Project Manager and Superintendent who will be responsible for the Project,and all full-time supervisory personnel for the Project. Contractor's Senior Project Personnel are as identified in Exhibit C to the Agreement and will not be changed without prior written approval by Owner. §3.9.3 The Contractor shall not employ a proposed Superintendent or any other Senior Project Personnel to whom the Owner or Architect has made reasonable objection.The Contractor shall not change the Superintendent without the Owner's written consent,which shall not unreasonably be withheld or delayed. §3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES §3.10.1 The Contractor,promptly after being awarded the Contract and as part of each GMP Proposal,shall prepare and submit for the Owner's and Architect's approval a Contractor's construction schedule for the Work("Schedule ").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 Project,shall be related to the entire Project and shall provide for expeditious and practicable execution of the Work.A detailed critical path schedule format shall be used for the Schedule with thorough updates to such schedule prepared and provided to Owner monthly. All Schedule updates must address how the Contractor intends to address and remedy any critical path delays previously encountered. The Contractor's Schedule and all updates should address submittal activities,as well as actual field construction activities. §3.10.2 The Contractor shall prepare and keep current a submittal schedule,for the Owner's approval,promptly after being awarded the Contract and shall submit the schedule(s)for the Architect's approval.The Architect's approval shall not unreasonably be delayed or withheld.The submittal schedule shall(1)be coordinated with the Contractor's construction schedule,and(2)allow the Architect reasonable time to review submittals.If the Contractor fails to submit a submittal schedule,the Contractor shall not be entitled to any increase in Guaranteed Maximum Price or extension of Contract Time based on the time required for review of submittals. §3.11 DOCUMENTS AND SAMPLES AT THE SITE 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 marked currently to record 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 Architect and shall be delivered to the Architect for submittal to the Owner upon completion of the Work as a record of the Work as constructed. §3.12 SHOP DRAWINGS,PRODUCT DATA AND SAMPLES §3.12.1 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. §3.12.2 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. §3.12.3 Samples are physical examples that illustrate materials,equipment or workmanship and establish standards by which the Work will be judged. §3.12.4 Shop Drawings,Product Data, Samples and similar submittals are not Contract Documents.Their purpose 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 Architect is subject to the limitations of Section 4.2.7.Informational submittals upon which the Architect is not expected to take responsive action may be so identified in the Contract Documents. Inst. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA® Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 11 reproduction or distribution of this AIA''Document.or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) §3.12.5 The Contractor shall review for compliance with the Contract Documents,approve and submit to the Architect Shop Drawings,Product Data,Samples and similar submittals required by the Contract Documents in accordance with the submittal schedule approved by the Architect or,in the absence of an approved submittal schedule,with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of separate contractors. Submittals which are not marked as reviewed for compliance with the Contract Documents and approved by the Contractor may be returned by the Architect without action,in the event any such submittals are returned by the Architect without action,the Contractor shall promptly take such corrective measures as may be necessary to confirm that such submittals are in compliance with the Contract Documents and approved by the Contractor,and resubmit the same to the Architect. §3.12.6 By approving and submitting Shop Drawings,Product Data,Samples and similar submittals,the Contractor represents that the Contractor has(1)reviewed and approved them,(2)determined and verified materials,field measurements and field construction criteria related thereto,or will do so and(3)has checked the information contained within such submittals with the requirements of the Work and of the Contract Documents. §3.12.7 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 Architect. §3.12.8 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 Architect's approval of Shop Drawings,Product Data,Samples or similar submittals unless the Contractor has specifically informed the Architect in writing of such deviation at the time of submittal and(1)the Architect 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 Architect's approval thereof. §3.12.9 The Contractor shall direct specific attention,in writing or on resubmitted Shop Drawings,Product Data, Samples or similar submittals,to revisions other than those requested by the Architect on previous submittals.In the absence of such written notice,the Architect's approval of a resubmission shall not apply to such revisions. §3.12.10 The Contractor shall not be required to provide professional services that 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 and the Architect 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 Architect.The Owner and the Architect shall be entitled to rely upon the adequacy,accuracy and completeness of the services,certifications and approvals performed or provided by such design professionals,provided the Owner and Architect have specified to the Contractor all performance and design criteria that such services must satisfy.Pursuant to this Section 3.12.10,the Architect 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.The Contractor shall not be responsible for the adequacy of the performance and design criteria specified in the Contract Documents. §3.13 USE OF SITE §3.13.1 The Contractor shall confine operations at the site to areas permitted by Applicable Laws and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. Contractor shall also comply at all times with time periods and hours of construction as set forth on the building permit,requirements of the City, or as reasonably instructed by Owner. Inst. AIA Document A201 T""—2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA® Document is protected by U.S.Copyright Law and International Treaties,Unauthorized 12 reproduction or distribution of this AIA''Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) §3.13.2 Neither the Contractor nor any other person or entity shall erect any sign on the site without the prior written consent of the Owner,which may be withheld in the sole discretion of the Owner. §3.13.3 Without limitation of any other provision of the Contract Documents,the Contractor shall comply with all reasonable rules and regulations promulgated by the Owner in connection with the use and occupancy of the site,as amended from time to time.The Contractor shall also comply with all of Owner's insurance requirements applicable to use and occupancy of the site. §3.13.4 Without limitation of any other provision of the Contract Documents,the Contractor shall use reasonable efforts to minimize any interference with the occupancy or beneficial use of any areas and buildings adjacent to the site of the Work. Without prior approval of the Owner,the Contractor shall not permit any workers to use any new or existing facilities on the Project site,including,without limitation,lavatories,toilets,entrances,and parking areas other than those designated by the Owner. §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.All areas requiring cutting,fitting and patching shall be restored to the condition existing prior to the cutting,fitting and patching,unless otherwise required by the Contract Documents.Cutting and patching shall be neatly and carefully done in a thorough and workmanlike manner. Patches and repairs shall be as inconspicuous as possible,and shall be subject to approval by the Architect and Owner. Contractor shall be responsible for Contractor and all Subcontractors cutting and/or altering existing construction and Contractor shall repair,patch and refinish such work. §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. §3.15 CLEANING UP §3.15.1 The Contractor shall maintain a reasonably neat and orderly jobsite and shall keep the premises and surrounding area free from accumulation of dust,dirt,waste materials or rubbish caused by operations under the Contract. There shall be a daily clean-up by the Contractor of the construction site and the surrounding premises to minimize and avoid the accumulation of unnecessary materials,waste and rubbish,dust or other airborne contaminants. On-site materials shall be stored by the Contractor in a secure and organized fashion to avoid danger and unsightly views to on-site visitors or passersby along the site perimeter. At completion of the Work,the Contractor shall remove waste materials,rubbish,the Contractor's tools,construction equipment,machinery and surplus materials from and about the Project. In addition to general broom cleaning,Contractor shall perform or insure the following final cleaning for all trades at completion of the Work: (a) remove temporary protections; (b) remove marks,stains,fingerprints and other soil or dirt from painted,decorated,and natural-finished woodwork and other work; (c) remove spots,mortar,plaster,soil and paint from ceramic tile,marble,and other finish materials and wash clean; (d) clean fixtures,sash,cabinetwork and equipment,removing stains,paint,dirt,and dust and leave them in undamaged,new condition; (e) clean and polish aluminum,hardware and all metal surfaces in accordance with recommendations of the manufacturer; (f) clean resilient floors thoroughly with a well-rinsed mop containing only enough moisture to clean off any surface dirt or dust and buff dry by machine to bring the surfaces to sheen; (g) have thoroughly cleaned by a professional window cleaner all glass and plastic surfaces;and (h) replace all damaged,broken or scratched glass or plastic. §3.15.2 If the Contractor fails to clean up as provided in the Contract Documents,the Owner may do so and Owner shall be entitled to reimbursement from the Contractor. Inst. AIA Document A201 TM•••2007.Copyright CO 1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA® Document is protected by U.B.Copyright Law and International Treaties.Unauthorized 13 reproduction or distribution of this AIA €Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADAOB) §3.16 ACCESS TO WORK The Contractor shall provide the Owner and Architect,and their consultants and representatives,access to the Work in preparation and progress wherever located. §3.17 ROYALTIES,PATENTS AND COPYRIGHTS 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 or Architect.However,if the Contractor knows 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 and the Architect. §3.18 INDEMNIFICATION §3.18.1 INDEMNIFICATION. EXCEPT AS SET OUT IN§3.18.2 BELOW,CONTRACTOR SHALL INDEMNIFY,HOLD HARMLESS AND DEFEND OWNER,THE CITY,THE OWNER'S LENDER(S) PROVIDING FINANCING FOR THE PROJECT,,AND THEIR RESPECTIVE OFFICERS, DIRECTORS,MEMBERS,OWNERS,MANAGERS,PARTNERS,,SUCCESSORS, REPRESENTATIVES,AND EMPLOYEES(THE "INDEMNITEES" AND INDIVIDUALLY "INDEMNITEE"),FROM AND AGAINST ALL CLAIMS,DAMAGES,LOSSES,AND EXPENSES, INCLUDING,BUT NOT LIMITED TO REASONABLE ATTORNEYS' FEES,ARISING OUT OF OR RESULTING FROM: (1)THE VIOLATION OF ANY ORDINANCE,REGULATION,STATUTE OR OTHER APPLICABLE LAW BY CONTRACTOR,ANY SUBCONTRACTOR OF ANY TIER(OR ANY OF THEIR EMPLOYEES),OR ANYONE OVER WHOM CONTRACTOR HAS CONTROL; (2)ANY LIEN CLAIM ASSERTED BY ANY SUBCONTRACTOR OR SUPPLIER OF ANY TIER FOR WORK OR MATERIALS PROVIDED TO THE PROJECT,BUT ONLY TO THE EXTENT OWNER IS NOT IN BREACH OF THE PAYMENT PROVISIONS OF THIS AGREEMENT; (3) BODILY INJURY OR DEATH OF ANY PERSON,OR PROPERTY DAMAGE,INCLUDING LOSS OF USE OF PROPERTY,ANY OF WHICH ARISE OR ARE ALLEGED TO ARISE OUT OF OR IN ANY WAY RELATED TO CONTRACTOR'S PERFORMANCE OF THE WORK OR OTHER ACTIVITIES OF CONTRACTOR OR ANY SUBCONTRACTOR BUT ONLY TO THE EXTENT CAUSED BY ANY ACT OR OMISSION OF CONTRACTOR,ITS SUBCONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY CONTRACTOR OR ANY SUBCONTRACTOR OR ANYONE FOR WHOSE ACTS CONTRACTOR MAY BE LIABLE. §3.18.2 INDEMNITY—EMPLOYEE INJURY CLAIMS. IN ADDITION TO THE INDEMNIFICATION PROVIDED IN SUBSECTION 3.18.1 ABOVE,CONTRACTOR SHALL INDEMNIFY,DEFEND,AND HOLD HARMLESS OWNER AND ALL INDEMNITEES FROM AND AGAINST ANY CLAIM,DAMAGE, LOSS,OR EXPENSE(INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS' FEES AND COSTS),ARISING OUT OF,RESULTING FROM OR ATTRIBUTABLE TO ANY CLAIM OF BODILY INJURY,SICKNESS,DISEASE OR DEATH OF ANY EMPLOYEE OF CONTRACTOR,ANY SUBCONTRACTOR OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY CONTRACTOR OR ANY OF ITS SUBCONTRACTORS,BROUGHT BY SUCH INJURED EMPLOYEE OR THE EMPLOYEE'S WORKERS COMPENSATION INSURANCE CARRIER(HEREINAFTER REFERRED TO AS AN "EMPLOYEE INJURY CLAIM"),EVEN TO THE EXTENT SUCH CLAIM,DAMAGE,LOSS OR EXPENSE IS ALLEGED TO BE CAUSED,IN WHOLE OR IN PART,BY THE SOLE OR CONCURRENT NEGLIGENCE OF OWNER OR ANY INDEMNITEE,IT BEING THE EXPRESSED INTENT OF THE OWNER AND CONTRACTOR THAT,IN SUCH EVENT,THE CONTRACTOR IS TO INDEMNIFY,HOLD HARMLESS AND DEFEND THE OWNER AND INDEMNITEES FROM THE CONSEQUENCES OF THEIR OWN NEGLIGENCE,WHETHER IT IS ALLEGED TO BE THE SOLE OR CONCURRING CAUSE OF THE BODILY INJURY,SICKNESS,DISEASE OR DEATH OF THE EMPLOYEE. THE INDEMNIFICATION OBLIGATIONS UNDER THIS PARAGRAPH SHALL NOT BE Init. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA`-' Document is protected by U.S.Copyright Law and International Treaties,Unauthorized 14 reproduction or distribution of this AIAs'Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law,This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) LIMITED BY ANY LIMITATION ON THE AMOUNT OR TYPE OF DAMAGES,COMPENSATION OR BENEFITS PAYABLE BY OR FOR CONTRACTOR UNDER WORKERS COMPENSATION ACTS, DISABILITY BENEFIT ACTS OR OTHER EMPLOYEE BENEFIT ACTS. CONTRACTOR SHALL PROCURE LIABILITY INSURANCE COVERING ITS OBLIGATIONS UNDER THIS PARAGRAPH. §3.18.3 INDEMNITY—COPYRIGHT INFRINGEMENT CLAIMS. IN ADDITION TO THE INDEMNIFICATION PROVIDED IN§3.18.1 AND§3.18.2 ABOVE,CONTRACTOR SHALL INDEMNIFY,DEFEND,AND HOLD HARMLESS OWNER AND ANY INDEMNITEE(S)FROM AND AGAINST ANY CLAIM,DAMAGE,LOSS,OR EXPENSE(INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS'FEES AND COSTS)ARISING OUT OF OR RELATING TO ANY CLAIM AGAINST OWNER OR INDEMNITEES ASSERTING INFRINGEMENT OR ALLEGED INFRINGEMENT OF A PATENT,TRADEMARK,COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHT IN CONNECTION WITH THE INSTRUMENTS OF SERVICE FURNISHED BY OR THROUGH CONTRACTOR OR ITS SUBCONTRACTORS EXCEPT TO THE EXTENT SUCH CLAIM, DAMAGE,LOSS OR EXPENSE IS CAUSED BY THE NEGLIGENCE OF ANY OF THE OWNER OR INDEMNITEE(S)OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY THEM OR SPECIFIED IN THE CONTRACT DOCUMENTS,UNLESS CONTRACTOR HAS PROVIDED DESIGN THROUGH ITS SPECIFIC SCOPES OF WORK. §3.18.4 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligations under this Section 3.18 or the Additional Insured requirements of Exhibit H(Insurance Requirements),such legal limitations are made a part of the contractual obligations and shall operate to amend the obligations to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations,and as so modified,the obligations shall continue in full force and effect. Should any provision in this Agreement be held invalid,unenforceable or contrary to public policy,law,statute or ordinance,then the remainder of the provision,paragraph,Section and/or Agreement shall not be affected thereby and shall remain valid and fully enforceable. §3.18.5 In claims against any person or entity indemnified under this Section 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 Section 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. §3.18.6 The obligations contained in this Section 3.18 shall survive the expiration,completion,abandonment and/or termination of the Agreement and final completion of the Work and any other services to be provided pursuant to this Agreement. ARTICLE 4 ADMINISTRATION OF THE CONTRACT §4.1 ARCHITECT §4.1.1 The Architect is the person lawfully licensed to practice architecture or an entity lawfully practicing architecture in the jurisdiction where the Project is located.That person or entity is identified as the Architect in the Agreement and is referred to throughout the Contract Documents as if singular in number. §4.2 ADMINISTRATION OF THE CONTRACT §4.2.1 The Architect will provide administration of the Contract as described in the Contract Documents,or as requested by Owner.The Architect will have no authority to act on behalf of the Owner,unless otherwise expressly authorized in writing by Owner,or specifically provided in the Contract Documents. §4.2.2 The Architect will visit the site at intervals appropriate to the stage of construction,or as otherwise agreed with the Owner,to become generally familiar with the progress and quality of the portion of the Work completed, and to determine in general if the Work observed is being performed in a manner indicating that the Work or portions observed,when fully completed,will be in accordance with the Contract Documents.However,except as Inst. AIA Document A201 TM-2007.Copyright m 1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA® Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 15 reproduction or distribution of this ALAS'Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) required by the Contract Documents,the Owner does not currently intend for the Architect to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work.Neither the Owner nor the Architect,or their respective consultants,will have control over,charge of,or responsibility for,the construction means,methods, techniques,sequences or procedures,or for the safety precautions and programs in connection with the Work,since these are the Contractor's rights and responsibilities under the Contract Documents,except as provided in Section 3.3.1. Any failure by the Architect to inform the Contractor of any observed non-compliance shall not constitute a waiver by Owner of the right to insist upon compliance by Contractor. §4.2.3 On the basis of the site visits,the Architect will keep the Owner reasonably informed about the progress and quality of the portion of the Work completed,and report to the Owner(1)known deviations from the Contract Documents and from the most recent construction schedule submitted by the Contractor,and(2)defects and deficiencies observed in the Work.Neither the Owner nor the Architect will be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents.The Architect 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. §4.2.4 COMMUNICATIONS FACILITATING CONTRACT ADMINISTRATION The Owner and Contractor shall endeavor to advise the Architect of the content of communications with the Contractor about matters arising out of or relating to the Contract. Unless otherwise specified by Owner or in the Contract Documents,Architect shall be copied on all correspondence between the Owner and Contractor. Communications by and with the Architect's consultants shall be through the Architect.Communications by and with Subcontractors and material suppliers shall be through the Contractor.Communications by and with separate contractors shall be through the Owner. §4.2.5 The Contractor's Applications for Payment shall be submitted to Architect and Owner for review and recommendation to the Owner of the amounts due the Contractor and will issue Certificates for Payment in such amounts as approved by Owner. §4.2.6 The Architect has authority to reject Work that does not conform to the Contract Documents.Whenever the Architect considers it necessary or advisable,the Architect will have authority to require inspection or testing of the Work in accordance with Sections 13.5.2 and 13.5.3,whether or not such Work is fabricated,installed or completed. However,neither this authority of the Architect 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 Architect to the Contractor,Subcontractors, material and equipment suppliers,their agents or employees,or other persons or entities performing portions of the Work. §4.2.7 The Architect will review and approve,or take other appropriate action upon,the Contractor's submittals such as Shop Drawings,Product Data and Samples for the purpose of ascertaining that the Work,when constructed, shall be in compliance with the requirements of the Contract Documents.The Architect's action will be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the Owner,Contractor,or separate contractors,while allowing sufficient time in the Architect's professional judgment 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 Architect's review of the Contractor's submittals shall not relieve the Contractor of the obligations under Sections 3.3,3.5 and 3.12.The Architect's review shall not constitute approval of safety precautions or,unless otherwise specifically stated by the Architect,of any construction means,methods,techniques,sequences or procedures.The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. §4.2.8 Except as otherwise directed by the Owner,the Contractor will prepare Change Orders and Construction Change Directives for the Owner's approval. §4.2.9 The Architect will conduct inspections to determine(in consultation with Owner)the date or dates of Substantial Completion and the date of final completion; issue Certificates of Substantial Completion pursuant to Section 9.8;receive and forward to the Owner,for the Owner's review and records,written warranties and related Inst. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA"' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 16 reproduction or distribution of this AIA''Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) documents required by the Contract and assembled by the Contractor pursuant to Section 9.10;and issue a final Certificate for Payment pursuant to Section 9.10. §4.2.10 Intentionally Omitted. §4.2.11 Upon Owner's request,the Architect will initially interpret and decide matters concerning requirements of the Contract Documents.The Architect's response to such requests will be made in writing within any time limits agreed upon or otherwise with reasonable promptness. §4.2.12 Intentionally Omitted. §4.2.13 The Architect will review submittals on matters relating to aesthetic effect to determine if they are consistent with the intent expressed in the Contract Documents. Matters related to aesthetic effect will be referred to Owner for written approval prior to Architect providing final decisions to Contractor. §4.2.14 Contractor shall submit requests for information(RFIs)about the Contract Documents to both Owner and Architect.The Architect will review and respond to RFIs.The Architect's response to such requests will be made in writing within any time limits agreed upon or otherwise with reasonable promptness.If appropriate,the Architect will prepare and issue supplemental Drawings and Specifications in response to the requests for information. §4.3 CLAIMS §4.3.1 Definition. A Claim is a demand or assertion by one of the parties seeking,as a matter of right,adjustment, or interpretation of Contract terms,payment of money,extension of time,or other relief with respect to the terms of the Contract.The term"Claim"also includes other disputes 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 with the party making the Claim. §4.3.2 Time Limits on Claims. Claims by the Contractor must be initiated within fifteen(15)days after the occurrence of the event giving rise to such Claim or within thirty(30)days after Contractor first recognizes the condition giving rise to the Claim,whichever is earlier.Claims must be initiated by written notice to the Owner and Architect. Failure of the Contractor to initiate any such claim within the stated time period shall be deemed and interpreted as a waiver of such claim. §4.3.3 Continuing Contract Performance. Pending final resolution of a Claim or other dispute,including negotiation,mediation(if any),or litigation,except as otherwise agreed in writing,the Contractor shall proceed diligently with performance of the Contract. §4.3.4 Claims for Concealed or Unknown Conditions. If conditions are encountered at the site which are(1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents,or(2)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 and in no event later than ten(10)days after first observance of the conditions. The Architect 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,will recommend for Owner's review and approval an equitable adjustment in the Guaranteed Maximum Price or Contract Time,or both. If the Architect determines that no change in the terms of the Contract is justified,the Architect shall so notify the Owner and Contractor in writing,stating the reasons.Claims by either party in opposition to such determination must be made within 21 days after the Architect has given notice of the decision. 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 referred to the Architect for initial determination,subject to further proceedings pursuant to dispute resolution provisions of Article 15. Inst. AIA Document A201"—2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This MA Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 17 reproduction or distribution of this AIA Document.or any portion of it.may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) §4.3.5 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Sum, written request 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 provisions herein related to Hazardous Materials. §4.3.6 If the Contractor believes additional cost is involved for reasons including but not limited to(1)a written interpretation from the Architect,(2)an order by the Owner to stop the Work where the Contractor was not at fault, (3)a written order for a minor change in the Work issued by the Architect or the Owner,(4)failure of payment by the Owner,(5)Owner's suspension or(6)other reasonable grounds,a Claim shall be filed in accordance with this Section 4.3. Owner shall review all Claims and take one or more of the following preliminary actions within a reasonable time from receipt of a Claim: (a) request additional supporting data from the claimant; (b) submit a schedule to the parties indicating when Owner expects to take action with respect to such Claim; (c) reject the Claim in whole or in part,stating the reasons for rejection; (d) recommend approval of the Claim by the other party;and (e) offer a compromise in resolution of the Claim. Owner may also,but is not obligated to,notify the surety,if any,of the nature and amount of the Claim. If a Claim has not been resolved,the party making the Claim shall,within ten(10)days after Owner preliminary response,take one or more of the following actions: (a) submit additional supporting data requested by Owner; (b) modify the initial Claim;or (c) notify Owner that the initial Claim stands. If a Claim has not been resolved after consideration of the foregoing and after further evidence has been presented by the parties or requested by Owner,Owner shall notify the claimant in writing that Owner's decision will be made within seven(7)days,which decision shall not be final and binding on the parties,but subject to further dispute resolution as provided in Article 15. Upon expiration of such time period,Owner shall render to the parties its reasonable written decision relative to the Claim,including any change in the Contract Sum or Contract Time and/or Milestone(s)or all. If there is a surety and there appears to be a possibility of a Contractor's default,Owner may, but is not obligated to,notify the surety and request the surety's assistance in resolving the controversy. If Owner has not made a decision by the end of the seven(7)day period,Contractor may elect to proceed with mediation. §4.3.7 Claims For Additional Time. §4.3.7.1 If the Contractor wishes to make Claim for an increase,shift or distribution in the Contract Time, written notice as provided herein shall be given.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 only one Claim is necessary. §4.3.7.2 If Abnormal or Unexpected Weather Delays are the basis for a Claim for additional time,such Claim shall be documented by data substantiating that weather conditions were either abnormal for the period of time or could not have been reasonably anticipated,and had an adverse effect on the scheduled construction and any other data as may be required by the Contract, including section 8.3. §4.3.8 Injury or Damage to Person or Property. If either party to the Contract suffers injury or damage to person or property because of an act or omission of the other party,or of others for whose acts such party is legally responsible,written notice of such injury or damage,whether or not insured,shall be given to the other party within a reasonable time not exceeding 21 days after discovery. The notice shall provide sufficient detail to enable the other party to investigate the matter. Init. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA'' Document is protected by U.S.Copyright Law and International Treaties,Unauthorized 18 reproduction or distribution of this AIA's'Document.or any portion of it.may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) §4.3.9 If unit prices are stated in the Contract Documents or subsequently agreed upon,and if quantities originally contemplated are materially changed in a proposed Change Order or Construction Change Directive so that application of such unit prices to quantities of Work proposed will cause substantial inequity to the Owner or Contractor,the applicable unit prices shall be equitably adjusted. §4.3.10 TIME LIMITS ON CLAIMS The Owner and Contractor shall commence all claims and causes of action,whether in contract,tort,breach of warranty or otherwise,against the other arising out of or related to the Contract in accordance with the requirements of the final dispute resolution method selected in the Agreement within the time period specified by Applicable Law. ARTICLE 5 SUBCONTRACTORS §5.1 DEFINITIONS §5.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site.A Sub-subcontractor"Sub-subcontractor"is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the site. The term"Subcontractor"is referred to throughout the Contract Documents(whether singular or plural in number)and means a Subcontractor(of any tier) or an authorized representative of the Subcontractor. §5.1.2 Application to Subcontracts. Any specific requirements in this Contract that define the responsibilities or obligations of Contractor as also applying to a Subcontractor is added for emphasis and are also hereby deemed to include all Subcontractors of the Contractor and to any other tier of Subcontractor to which this Contract has been incorporated by reference. The omission of a reference to a Subcontractor in connection with any of Contractor's responsibilities or obligations shall not be construed to diminish,abrogate or limit any responsibilities or obligations of a Subcontractor(or Sub-subcontractor)of any tier under the Contract Documents or the applicable subcontract. §5.1.3 Contractor shall promptly notify Owner and Architect of any material defaults by any Subcontractor, Supplier,or Sub-subcontractor. §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,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 may reply within 14 days to the Contractor in writing stating(1)whether the Owner has reasonable objection to any such proposed person or entity or(2)that the Owner requires additional time for review.Failure of the Owner to reply within the 14-day period shall constitute notice of no reasonable objection. §5.2.2 The Contractor shall not contract with a proposed person or entity to whom the Owner has 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 substitute a Subcontractor,person or entity previously selected if the Owner makes reasonable objection to such substitution. Init. AIA Document A201 T""—2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 19 reproduction or distribution of this AIA`'Document,or any portion of it.may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law,This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) §5.3 SUBCONTRACTUAL RELATIONS §5.3.1 By appropriate written agreement, 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 and Architect.Each subcontract agreement shall preserve and protect the rights of the Owner and Architect under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights.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 that 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 Each such Subcontract shall include at least the following provisions: (i) require that such Work be performed in accordance with the requirements of the Contract Documents and Applicable Law;(ii)require the Subcontractor to carry and maintain such insurance coverage and limits as specified by Contractor;(iii)require the Subcontractor to furnish such certificates,warranties,and waivers as Owner may reasonably request;and(iv) require the same dispute resolution provisions as Contractor has agreed to with Owner for claims made involving the Owner. §5.3.3 Contractor shall provide Owner upon request a list of all Subcontractors and Suppliers,their relevant contact information,and copies of all Subcontracts and/or Purchase Orders. §5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS §5.4.1 All Subcontract agreements shall conform to the requirements of the Contract Documents,and in particular Section 3.18 and Exhibit H(Insurance Requirements),and any documents referenced therein.Effective only after termination of the contract by the Owner for cause, Contractor hereby assigns to Owner(and Owner's permitted assigns)all its interest in any Subcontract agreements and purchase orders now existing or hereinafter entered into by Contractor for performance of any part of the Work,which assignment will be effective upon acceptance by Owner in writing and only as to those Subcontract agreements and purchase orders that Owner designates in said writing.It is agreed and understood that Owner may accept said assignment at any time during the course of construction prior to Final Completion. Upon such acceptance by Owner, (1)Contractor shall promptly furnish to Owner true and correct copies of the designated Subcontractor agreements and purchase orders;and(2)Owner shall only be required to compensate the designated Subcontractor(s)or supplier(s)for compensation accruing to such party for Work done or materials delivered for which Owner has not paid Contractor. All sums due and owing by Contractor to the designated Subcontractor(s)or Supplier(s)for Work performed or materials supplied prior to Owner's determination to accept the Subcontract agreement(s)or purchase order(s) and for which Owner has paid Contractor shall constitute a debt between such party(ies)and Contractor. It is further agreed that all Subcontract agreements and purchase orders shall provide that they are freely assignable by Contractor to Owner and Owner's assigns under the terms and conditions stated hereinabove.It is further agreed and understood that such assignment is part of the consideration to Owner for entering into the Agreement with Contractor and may not be withdrawn prior to completion. §5.4.2 Upon such assignment,if the Work has been suspended for more than 30 days,the Subcontractor's compensation shall be equitably adjusted for increases in cost resulting from the suspension. §5.4.3 Upon such assignment to the Owner under this Section 5.4,the Owner may further assign the Subcontract to a successor contractor or other entity.If the Owner assigns the agreement to a successor contractor or other entity, the Owner shall nevertheless remain legally responsible for all of the successor contractor's obligations under the assigned agreement. Init. AIA Document A201 T""—2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AMA) Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 20 reproduction or distribution of this AIA`''Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) §5.4.4 Notwithstanding the foregoing,in the event of a termination for convenience under Section 14.4 below, Contractor's rights under each agreement subject to assignment pursuant to this Section 5.4 with regard to the respective Subcontractor's or supplier's obligation to correct or replace defective or non-conforming work or with regard to the Subcontractor's or supplier's warranty obligations for portions of the Work performed or furnished by the Subcontractor or supplier are assigned by the Contractor to the Owner in the event of such termination. §5.5 CONTRACTOR IS RESPONSIBLE FOR SUBCONTRACTORS OF ANY TIER Contractor shall be responsible for all Work performed by its Subcontractors of any tier. Contractor shall also be responsible for the supervision of its Subcontractors and their activities while at the Project. 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.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 Article 15. §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 Contractor shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the Work of the Contractor so as to not delay any Work or the Project Schedule,and shall report to Owner any issue with Owner's separate contractors.Contractor shall be in charge of coordination,with Owner's cooperation and assistance,but Contractor shall not be responsible for the performance of Owner's separate contractors. Owner shall encourage cooperation and harmony between the separate contractors and Contractor.The Contractor shall participate with other separate contractors and the Owner in reviewing their construction schedules. The Contractor shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement and,if the result is an extension of the Contract Time,by signed Change Order setting for the agreed Contract Time.The construction schedules shall then constitute the schedules to be used by the Contractor, separate contractors and the Owner until subsequently revised. If any separate contractor fails or refuses to coordinate schedules with Contractor as requested,Contractor will notify Owner immediately. §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 that 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 Architect and 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 apparent. If the Contractor fails to make such report,the Contractor shall be liable for any damages,costs and/or liability resulting therefrom,including,without limitation,any fines,consulting fees,and costs of correction of the Work;but,only to the extent the same could have been avoided if Contractor had so reported. §6.2.3 The Contractor shall reimburse the Owner for costs the Owner incurs that are payable to a separate contractor because of the Contractor's delays, improperly timed activities or defective construction.The Owner shall be responsible to the Contractor for costs the Contractor incurs because of a separate contractor's delays,improperly Init. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA') Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 21 reproduction or distribution of this AIA''Document.or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the / maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) timed activities,damage to the Work or defective construction,so long as the Contractor complies with Section 6.2.2. §6.2.4 The Contractor shall promptly remedy damage the Contractor wrongfully causes to completed or partially completed construction or to property of the Owner or separate contractors as provided in Section 10.2.5. If such separate contractor sues the Owner on account of any damage alleged to have been caused by the Contractor,the Owner shall notify the Contractor who shall defend and indemnify the Owner pursuant to Section 3.18,and any other applicable contract provision. §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 Section 3.14. §6.3 OWNER'S RIGHT TO CLEAN UP 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 equitably allocate the cost among those responsible. ARTICLE 7 CHANGES IN THE WORK §7.1 GENERAL §7.1.1 Changes in the Work may be 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. §7.1.2 A Change Order shall be based upon agreement between the Owner and Contractor(which may or may not be agreed upon by the Architect);a Construction Change Directive 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. From time to time,Owner may authorize changes in the Work,issue additional instructions,require additional Work or direct the omission of work previously ordered;provided, however,Contractor shall not,under any circumstances,proceed with any change which would(1)increase or decrease the Guaranteed Maximum Price;(2)extend the Contract Time;or(3)affect the Work without prior written authorization from Owner,in accordance with this Article 7. §7.1.4 The Contractor,upon receipt of written notification by the Owner or Architect of a proposed item of change in the Work,shall prepare and deliver to the Owner and the Architect,as soon as possible,a Change Proposal in such form or forms as directed by the Owner or the Architect and in accordance with the following: .1 Each Change Proposal shall be numbered consecutively and shall include materials'costs,labor costs, fees,and other reimbursable Cost of the Work and any applicable Fee or profit. The Change Proposal shall specify all costs related to the proposed Change in the Work,including any disruption or impact on performance. .2 The Subcontractor's itemized accounting shall be included with the Change Proposal. .3 If Change Proposal is returned to the Contractor for additional information or if the scope of the proposed change in the Work is modified by additions,deletions or other revisions,the Contractor shall revise the Change Proposal accordingly and resubmit the revised Change Proposal to the Owner. .4 A revised Change Proposal shall bear a new Change Proposal number but shall cross-reference the previous Change Proposal. Init. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AjAx Document is protected by U.S,Copyright Law and International Treaties,Unauthorized 22 reproduction or distribution of this AIM Document.or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law,This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) .5 The Contractor shall request extensions of Contract Time,if any,due to changes in the Work only at the time of submitting his Change Proposal. Contractor's failure to do so shall represent a waiver of any right to request a time extension. .6 The Contractor shall maintain such Change Order log(with Change Proposals)in such form as directed by Owner,and required by the Contract Documents. Upon written approval of a Change Proposal by the Owner,the Contractor(or the Architect if otherwise required by the Contract Documents or directed by the Owner)will prepare a Change Order authorizing such change in the Work on such form as directed by the Owner. §7.1.5 Except as permitted in the Agreement or these General Conditions with regard to amounts to which Owner is entitled to payment or offset arising from Contractor's breach or default hereunder,a change in the Guaranteed Maximum Price or the Contract Time shall be accomplished only by Construction Change Directive or Change Order. No course of conduct or dealings between the parties,nor express or implied acceptance of alterations or additions to the Work,,shall be the basis of any claim to any increase in any amounts due under the Contract Documents or a change in any time period provided for in the Contract Documents §7.2 CHANGE ORDERS §7.2.1 A Change Order("Change Order")is a written instrument(which may or may not be prepared or agreed to by the Architect)and signed by the Owner and Contractor based upon an approved Change Proposal or Construction Change Directive stating their agreement upon all of the following: .1 The change in the Work; .2 The amount of the adjustment,if any,in the Guaranteed Maximum Price;and .3 The extent of the adjustment,if any,in the Contract Time. §7.2.2 Unless otherwise provided in the Change Order,agreement on any Change Order shall constitute a final settlement of all matters relating to the change in the Work which is the subject of the Change Order,including but not limited to,all direct and indirect costs associated with such change and any and all adjustments to the Guaranteed Maximum Price and the construction Schedule. In the event a Change Order increases the Guaranteed Maximum Price,Contractor shall include the Work covered by such Change Orders in Applications for Payment as if such Work were originally part of the Contract Documents. §7.3 CONSTRUCTION CHANGE DIRECTIVES §7.3.1 A Construction Change Directive("Construction Change Directive") is a written order(which may or may not be prepared or agreed to by the Architect)signed by the Owner,directing a change in the Work or the performance of Work which Contractor disputes as being included in its scope of the Work under the Contract Documents("disputed Work")prior to agreement on adjustment,if any,in the Guaranteed Maximum Price 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 or performance of the disputed Work consisting of additions,deletions or other revisions,the Guaranteed Maximum Price and Contract Time being adjusted accordingly(to the extent an adjustment is required by the Contract Documents). §7.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order. §7.3.3 If the Construction Change Directive provides for an adjustment to the Guaranteed Maximum Price,the adjustment shall be based on one of the following methods: .1 Mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation with the applicable mark-up as may be authorized under the Agreement; .2 Unit prices stated in the Contract Documents or subsequently agreed upon; .3 Cost to be determined in a manner agreed upon by the parties with the applicable mark-up as may be authorized under the Agreement;or .4 As provided in Section 7.3.7. §7.3.4 If unit prices are stated in the Contract Documents or subsequently agreed upon,and if quantities originally contemplated are materially changed in a proposed Change Order or Construction Change Directive so that Inst. AIA Document A201 T""-2007.Copyright CO 1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA1) Document is protected by U.S.Copyright Law and International Treaties,Unauthorized 23 reproduction or distribution of this AIA'Document.or any portion of it.may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law,This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) application of such unit prices to quantities of Work proposed will cause substantial inequity to the Owner or Contractor,the applicable unit prices shall be equitably adjusted. §7.3.5 Upon receipt of a Construction Change Directive,the Contractor shall promptly proceed with the change in the Work involved and advise the Architect and 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. §7.3.6 A Construction Change Directive signed by the Contractor indicates the Contractor's agreement therewith, including adjustment in the Guaranteed Maximum Price and Contract Time or the method for determining them. Such agreement shall be effective immediately and shall be recorded as a Change Order. §7.3.7 If the Contractor does not object in writing to the Owner within fifteen(15)calendar days after receipt of the Construction Directive,such Directive shall be deemed accepted by the Contractor and shall be effective and recorded as a Change Order. If the Contractor disagrees with the method for adjustment in the Guaranteed Maximum Price and timely and properly objects on the basis of reasonable expenditures and savings of those performing the Work attributable to the change subject to such provisions for adjustments to the Guaranteed Maximum Price as provided in the Contract Documents and as further limited immediately below,including,in case of an increase in the Guaranteed Maximum Price with the applicable mark-up as may be authorized in the Agreement.In such case,and also under Section 7.3.3.3,the Contractor shall keep and present,in such form as the Owner may prescribe,an itemized accounting together with appropriate supporting data.Unless otherwise provided in the Contract Documents,costs for the purposes of this Section 7.3.7 shall be limited to the to the following and shall be subject to such terms and conditions regarding Change Order pricing as may be provided in the Agreement: .1 Costs of labor,including social security,old age and unemployment insurance,fringe benefits required by agreement,and workers' compensation insurance,or,with regard to Contractor's benefits costs, such labor burden as may be expressly recoverable under the Agreement in lieu thereof; .2 Costs of materials,supplies and equipment,including cost of transportation,whether incorporated or consumed; .3 Rental costs of machinery and equipment,exclusive of hand tools,whether rented from the Contractor or others; .4 Costs of additional premiums for all bonds and insurance,permit fees,and sales,use or similar taxes related to the Work;and .5 Additional costs of supervision and field office personnel directly attributable to the change. §7.3.8 Except as otherwise provided in this Agreement,the amount of credit to be allowed by the Contractor to the Owner for a deletion or change that results in a net decrease in the Guaranteed Maximum Price shall be actual net cost plus the associated Contractor's Fee for that Work deleted.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. §7.3.9 Pending final determination of the total cost of a Construction Change Directive to the Owner,the Contractor may request payment for Work completed under the Construction Change Directive in Applications for Payment. The Owner will make an interim good faith determination for purposes of monthly certification for payment for those costs.The Owner's interim determination of cost shall adjust the Guaranteed Maximum Price 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 4.3 §7.3.10 When the Owner and Contractor reach agreement upon the adjustments,such agreement shall be effective immediately 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 The Owner has authority to order minor changes in the Work not involving adjustment in the Guaranteed Maximum Price or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes will be effected by written order and shall be binding on the Owner and Contractor. Inst. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING;This AIA')Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 24 reproduction or distribution of this AIA,Document.or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) ARTICLE 8TIME §8.1 DEFINITIONS §8.1.1 Unless otherwise provided,Contract Time is the period of time,including authorized adjustments,allotted in the Contract Documents for Substantial Completion of the Work and any Interim Milestones established in the Contract Documents and any requirements relating to the time for Final Completion of the Work. §8.1.2 The date of commencement of the Work is the date established in the Agreement. §8.1.3 Substantial Completion is as set forth in Section 9.8. §8.1.4 Final Completion("Final Completion")is the actual completion of the Work in accordance with the Contract Documents,including any Work covered by Change Directives and Change Orders issued under the Contract,other than warranty work on Work that has previously been accepted by the Owner. It is the intent of this Contract that Contractor perform the work so to achieve Final Completion no more than thirty(30)days after Substantial Completion. §8.1.5 The term"day"as used in the Contract Documents shall mean calendar day unless otherwise specifically defined. §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 Agreement, submitting GMP Proposal with a project Schedule,or executing a GMP Amendment,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 effective date of insurance required by Article 11 to be furnished by the Contractor and Owner.The date of commencement of the Work shall not be changed by the effective date of such insurance,except to the extent commencement of the Work is delayed by a delay by Owner in obtaining the builder's risk property insurance called for by Exhibit H. §8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial Completion within the Contract Time. §8.2.4 In the event the Owner reasonable determines that the performance of the Work,as of a Critical Milestone Date,has not progressed or reached the level of completion required of the Contract Documents due to the fault of the Contractor,Subcontractors,or anyone over whom they have control,the Owner shall have the right to order the Construction Manager to take corrective measures necessary to expedite the progress of construction, including, without limitation(1)working additional shifts or overtime,(2)supplying additional manpower,equipment,and facilities,and(3)other similar measures(hereinafter referred to collectively as"Corrective Measures"). Such Corrective Measures shall continue until the progress of the Work complies with the state of the completion required by the Contract Documents.The Owner's right to require Corrective Measures is solely for the purpose of ensuring the Construction Manager's compliance with the Construction Schedule. The Construction Manager shall not be entitled to an adjustment in the Guaranteed Maximum Price or use of the Contractor's Contingency in connection with Corrective Measures required by the Owner under or pursuant to this provision,unless such measures are on account of any act or negligence of the Owner. The Owner may exercise the right furnished the Owner under or pursuant to this Section as frequently as the Owner deems necessary to ensure that the Construction Manager's performance of the Work will comply with the Critical Milestone Dates set forth in this Agreement(including all Exhibits and Modifications thereto). §8.3 DELAYS AND EXTENSIONS OF TIME §8.3.1 Claims relating to time under this Section 8.3 shall be made in accordance with applicable provisions of Section 4.3 and Article 15 §8.3.2 Except for delays caused by the Owner,separate contractors of Owner,Owner's Lender,the Architect,or any other party for whom Owner is liable,including delays caused by Hazardous Materials(pursuant to Section Init. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIM Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 25 reproduction or distribution of this AIM Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) 10.3.1.1 of the General Conditions)or concealed or unknown site conditions(pursuant to Section 4.3.4 of the General Conditions)which are compensable as set forth in this Agreement,any other Claims by the Contractor for damages for delay(including disruptions or impacts based on delay),however asserted or denominated,and whether based on a single event or multiple events or cumulative impacts,are hereby waived and released and the Contractor covenants to assert no such claim. For such non-compensable but excusable delays,and only those delays not caused in whole or part by the Contractor,the Contractor's sole remedy shall be a time extension. Contractor shall provide notice to Owner immediately of delays caused by Owner,separate contractors of Owner, Owner's lender,the Architect,or any other party for whom Owner is liable.The Contractor shall not be entitled to any compensation(including acceleration expenses)or time extension for delays caused by the Contractor or those for whom the Contractor is responsible,including Subcontractors of any tier. §8.3.3 The Contractor's sole remedy for delay caused by Force Majeure shall be a time extension. No extension of time shall be granted unless the delay affects the critical path of the approved construction Schedule and the Substantial Completion Date is extended by the Force Majeure delay,and such delay is proven by an independent critical path analysis of the work activities. §8.3.3.1 Weather. The Contractor shall not be entitled to any extension of time due to adverse weather conditions (also referenced herein as"Abnormal or unexpected weather delays")unless the number of adverse weather days in any given calendar month exceeds the historic averages as maintained by the National Oceanic and Atmospheric Administration. Adverse weather conditions is defined as the occurrence of one or more of the following conditions which prevents exterior construction activity or access to the site within twenty-four(24)hours: (1)precipitation (rain,snow,or ice)in excess of one-tenth inch(0.10")liquid measure,(2)temperatures which do not rise above 32 degrees F by 10:00 a.m.,(3)temperatures which do not rise above that specified for the day's construction activity by 10:00 a.m.if any is specified,(4)sustained wind in excess of twenty-five(25)mph,or(5)standing snow in excess of one inch(1.00).Weather conditions including precipitation(rain,snow,hail)amounts and times at the jobsite,activities and durations affected,shall be recorded on a daily basis in the Contractor's daily report and submitted to the Owner on a weekly basis as further described in the Agreement. §8.3.4 If,in the reasonable discretion of the Owner,the Contractor is responsible for any delays in the time or sequence of the performance of its Work that is on the critical path of the construction Schedule,the Contractor shall,on its own initiative or at the Owner's written directive,employ such additional forces,obtain such additional equipment,employ such additional supervision,pay such additional overtime wages,take other actions that may be necessary,and use such priority freight as may be required to bring its Work back on schedule,all of which shall be at the Contractor's own cost and expense. If, in the Owner's opinion,the Contractor's progress is more than seven (7)days behind the critical path of the construction Schedule,the Owner may,in addition to any other remedies available to it under the Contract Documents,at law,or equity,also require in writing(i)that the Contractor submit, within three(3)days of the Owner's written notice and for the Owner's approval,a recovery plan to the Owner detailing the Contractor's proposal for bringing the Work back on schedule,and(ii)that the sequence of the performance of the Work be changed,all of which shall be at the Contractor's own cost and expense. In no event shall such costs to bring the Work back on schedule cause the Guaranteed Maximum Price to be adjusted or exceeded. Nothing herein shall be construed to require that the Owner give the Contractor a written notice to perform any of the acts listed herein,and the parties agree that the Owner's failure to give such written notice to the Contractor shall not in any way relieve the Contractor's obligation to perform its Work so as to achieve Substantial Completion of the entire Work by the Substantial Completion Date. §8.3.5 Claims for Compensation for Acceleration or Impact.The Contractor agrees that any claim seeking additional compensation for any impact or acceleration to the Work must show,at a minimum,that the Owner expressly accelerated Work on the critical path for construction,due to no fault of the Contractor or others for whom the Contractor is responsible("Compensable Acceleration"). Claims for Compensable Acceleration shall be commenced and handled pursuant to the terms in Article 4.3 Compensable Acceleration shall be limited to the actual,direct Project site expenses that are incurred purely and exclusively as a result of the acceleration,including only additional cost of the Contractor's and the Contractor's Subcontractors' personnel,the Contractor's representative, Superintendent or foremen,other management, if located full time at the Project site,and field office expenses. In no event shall the Contractor be entitled to extended home office overhead,general and administrative expenses(as that phrase is used in this Agreement and commonly understood in keeping with generally accepted accounting principles),or the cost of Inst. AIA Document A201 T""-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA) Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 26 reproduction or distribution of this AIMS'Document.or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) any personnel or other expense that is not physically located on the Project site on a daily and continuous basis. In no event shall the Contractor be entitled to more than its proven,actual,out of pocket expenses,as documented by time and material records to be maintained by the Contractor on a daily basis and signed for by the Owner. No costs incurred or calculated in any other manner shall be recoverable. The Contractor expressly waives all claims,except as set forth above,for,lost productivity,or similar damages. ARTICLE 9 PAYMENTS AND COMPLETION §9.1 CONTRACT SUM The Contract Sum is stated in the Agreement and,including authorized adjustments,is the total amount payable by the Owner to the Contractor for performance of the Work under the Contract Documents. §9.1.1 Notwithstanding anything to the contrary contained in the Contract Documents,the Owner may withhold any payment to the Contractor hereunder of and for so long as the Contractor fails to perform any of its obligations hereunder or otherwise is in default under any of the Contract Documents;provided,however,that any such holdback shall be limited to a reasonable amount sufficient,in the good faith opinion of the Owner,to cure any such default or failure to perform by the Contractor. If the Contractor disputes Owner's determination,he shall nevertheless expeditiously continue to prosecute the Work. §9.2 SCHEDULE OF VALUES Before commencing the Work,the Contractor shall submit to the Architect and Owner,a schedule of values allocating the entire Contract Sum to the various portions of the Work and prepared in such form and supported by such data to substantiate its accuracy as the Architect or Owner may require.This schedule,unless objected to by the Architect or Owner,shall be used as a basis for reviewing the Contractor's Applications for Payment. The Schedule and any modifications or amendments thereto shall not overvalue early job activities. Except as otherwise agreed in writing by the parties,the Contractor's General Conditions Costs and Fee shall be included as separate line items. The schedule shall follow the trade divisions of the Specifications so far as practicable. Any modifications or amendments thereto must be approved by the Owner. §9.3 APPLICATIONS FOR PAYMENT §9.3.1 Based upon Applications for Payment properly submitted to the Owner,Lender,and the Architect by the Contractor as set forth herein below,and Certificates for Payment issued by the Architect(if so required by the Owner),the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and in the Agreement. §9.3.1.1 Payment periods shall run consecutively from the first(1st)of each month through the last day of the month(a"Payment Period"). On or before the twenty-fifth(25th)day of a Payment Period,the Contractor shall submit to the Architect and Owner an itemized Application for Payment for operations completed in accordance with the schedule of values in pencil draft form(the"Draft Application for Payment")with accompanying back- up documents. Owner and Architect shall review such Draft Application for Payment,and provide Contractor with any and all comments thereto on or before the first(1st)day following the Payment Period.Contractor shall then finalize and submit its Application for Payment for the preceding Payment Period on or before the fifth(5th)day following the Payment Period. Such Application for Payment shall be notarized and supported by such data substantiating the Contractor's right to payment as the Owner or Architect may require,such as copies of requisitions from Subcontractors and material suppliers,and reflecting retainage if provided for in the Contract Documents,and shall conform to all the requirements therefore set forth in the Agreement. §9.3.1.2 As provided in Section 7.3.9,such applications may include requests for payment on account of changes in the Work that have been properly authorized by Construction Change Directives,or by interim good faith determinations of the Owner,but not yet included in Change Orders. §9.3.1.3 Contractor shall not submit for review and approval any Application for Payment which is incomplete, inaccurate or lacks the detail,specificity or supporting documentation required by the Contract Documents. Contractor acknowledges that any Application for Payment which is deficient in any manner shall not constitute a valid and proper Application for Payment,and Contractor shall be required to resubmit said Application for Payment in proper form prior to Owner incurring any obligation to make payment on account thereof. Contractor Inst. AIA Document A201 TM—2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA® Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 27 reproduction or distribution of this AlA®Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the / maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) specifically agrees that it shall not include in any Application for Payment sums attributable to Work which Owner or Architect have rejected or which otherwise constitute or relate to Applications for Payment,billings of invoices of Subcontractors or Suppliers which Contractor disputes or for any other reason does not intend to pay. §9.3.2 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 provided,that the items are organized,protected from the elements,grouped together in a secure location and may be counted in a reasonable period of time, and that they do not interfere with access to or use of the Land or Project site.Payment shall 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,including but not limited to pictures of the materials provided to Owner, review and confirmation of full delivery in accordance with Purchase Orders,security and storage sufficient to protect from theft or damage,and evidence sufficient to show that the materials are covered by applicable insurance policies,and shall include the costs of applicable insurance,storage and transportation to the site for such materials and equipment stored off the site. §9.3.3 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner at the time of payment.The Contractor further warrants that upon submittal of an Application for Payment all Work for which Applications for Payment have been previously submitted 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 of any tier,material suppliers,or other persons or entities making a claim by reason of having provided labor,materials and equipment relating to the Work. THE CONTRACTOR SHALL DEFEND THE OWNER,AT THE CONTRACTOR'S SOLE COST AND EXPENSE,AGAINST ANY ACTIONS,LAWSUITS,OR PROCEEDINGS BROUGHT AGAINST THE OWNER AS A RESULT OF LIENS FILED AGAINST THE SITE OF THE PROJECT,OWNER'S LEASEHOLD INTEREST,OR OTHERWISE,EXCEPT TO THE EXTENT THAT SUCH LIENS ARE THE RESULT OF OWNER'S WRONGFUL FAILURE TO PAY THE CONTRACTOR IN ACCORDANCE WITH THE CONTRACT DOCUMENTS. EXCEPT TO THE EXTENT CAUSED BY OWNER'S NEGLIGENCE OR WRONGFUL ACTIONS,THE CONTRACTOR HEREBY AGREES TO INDEMNIFY, DEFEND,AND HOLD HARMLESS THE OWNER AGAINST ANY SUCH LIENS OR CLAIMS FOR LIEN AND AGREES TO PAY ANY JUDGMENT OR LIEN AGAINST THE OWNER OR THE OWNER'S PROPERTY INTEREST RESULTING FROM ANY SUCH ACTIONS,LAWSUITS,OR PROCEEDINGS BROUGHT TO ENFORCE ANY SUCH LIEN OR CLAIM,INCLUDING ALL ATTORNEYS' FEES, COSTS,AND EXPENSES. §9.3.4 With each Application for Payment,and as an express condition to such payment by the Owner,Contractor shall submit a lien waiver(and bills paid affidavit if requested)from Contractor and such Subcontractors and Suppliers performing Work or furnishing materials or equipment during the period covered by the Application for Payment as required by the Agreement. For each Application for Payment after the first Application for Payment, Contractor will,as a condition to payment by the Owner,provide executed and notarized unconditional waivers and releases of lien for each Subcontractor or Supplier performing Work on the Project for which the previous Application for Payment was submitted and approved. §9.3.5 In the event a mechanic's lien claim is asserted or perfected against the Project or the Owner relating to the Work under this Agreement,and provided that such lien is not the result of the Owner's wrongful failure to pay the Contractor undisputed amounts in accordance with the Contract Documents.The Owner may elect to deduct the amount(s)of any such payment(s)from the Contract Sum. This Section shall not apply in the event that the Contractor furnishes a surety bond,in compliance with the requirement of the Texas Property Code and reasonably acceptable to Owner,to release such claim and/or lien against the Owner and/or its property,or otherwise settles or releases such claim or lien to Owner's satisfaction,and fully complies with the provisions of Applicable Laws. The cost of any premiums incurred in connection with indemnity bonds shall be the responsibility of the Contractor and shall not be part of or cause any increase in the Contract Sum and shall not be billed as part of the Cost of the Work. §9.3.6 Electronic copies of all Applications for Payment and all data for such Applications for Payment shall remain on file at Contractor's office for inspection by Owner. Duplicate originals of all partial and final lien waivers and Inst. AIA Document A201 TM—2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA't Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 28 reproduction or distribution of this AIA Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) releases supplied by Contractor and each Subcontractor and materialman shall remain on file at Contractor's office for a period of one(1)year from the date of final payment and shall be available for inspection by Owner. §9.4 CERTIFICATES FOR PAYMENT §9.4.1 The Architect will,within seven days after receipt of the Contractor's Application for Payment,either issue to the Owner for the Owner's approval a Certificate for Payment,with a copy to the Contractor,for such amount as the Architect determines is properly due,or notify the Contractor and Owner in writing of the Architect's reasons for withholding certification in whole or in part as provided in Section 9.5.1. §9.4.2 The issuance of a Certificate for Payment will constitute a representation by the Architect to the Owner, based on the Architect's evaluation of the Work,and all other information available to Architect,including the data comprising the Application for Payment,that,to the best of the Architect's knowledge,information and belief,the Work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents.The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial and Final Completion,to results of subsequent tests and inspections,to correction of minor deviations from the Contract Documents prior to completion and to specific qualifications expressed by the Architect.The issuance of a Certificate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified.However,the issuance of a Certificate for Payment will not be a representation that the Architect has(1)made continuous on-site inspections to check the quality or quantity of the Work,(2)reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment,and(3)ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. §9.4.3 The issuance of a Certificate for Payment shall constitute a recommendation to the Owner in respect to the amount to be paid. This recommendation is not binding on the Owner if,in Owner's opinion,legitimate reasons for nonpayment exist including,but not limited to the reasons set out in Section 9.5.1. If the Owner declines to make payment upon a Certificate of Payment,the Owner shall promptly notify the Contractor of the reasons therefor. §9.5 DECISIONS TO WITHHOLD PAYMENT §9.5.1 The Architect may withhold a Certificate for Payment in whole or in part,to the extent reasonably necessary to protect the Owner,if in the Architect's opinion the representations to the Owner required by Section 9.4.2 cannot be made.If the Architect is unable to certify payment in the amount of the Application,the Architect will notify the Contractor and Owner as provided in Section 9.4.1.If the Contractor and Architect cannot agree on a revised amount,the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to make such representations to the Owner.The Architect may also withhold a Certificate for Payment or,because of subsequently discovered evidence,may nullify the whole or a part of a Certificate for Payment previously issued,to such extent as may be necessary in the Architect's opinion to protect the Owner from loss for which the Contractor is responsible, including loss resulting from acts and omissions described in Section 3.3.2,because of .1 defective Work not remedied; .2 third party claims filed or reasonable evidence indicating probable filing of such claims which are either uninsured or have not been secured by a bond; .3 failure of the Contractor to make payments properly to Subcontractors or for labor,materials or equipment; .4 reasonable evidence that the Work cannot be completed for the unpaid balance of the Guaranteed Maximum Price; .5 damage to the Owner or a separate contractor; .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 pursuant to the Contract for the anticipated delay;or .7 failure or apparent inability to carry out the Work in accordance with the Contract Documents; .8 abandonment of the Work site; .9 other material breach of the Contract Documents;or .10 any Claims of the Owner against the Contract. §9.5.2 When the above reasons for withholding certification for payment are resolved or removed,payment will be made for amounts previously withheld. Init. AIA Document A201 TM—2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA" Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 29 reproduction or distribution of this AlAq'Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law,This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) §9.5.3 If the Architect withholds certification for payment under Section 9.5.1.3,or otherwise becomes aware that Contractor is not making proper payments to Subcontractors that are due and owing,the Owner may,upon mutual agreement with the Contractor,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 Architect and the Architect will reflect such payment on the next Certificate for Payment. §9.5.4 If Contractor disputes any determination by Architect or Owner with regard to all or any part of an Application for Payment or a Certificate of Payment,Contractor shall nevertheless expeditiously continue to prosecute the Work as long as Owner continues to make payment for that portion of the Work over which there is no dispute. However,Contractor shall be entitled to make a Claim as provided in Section 4.3 herein. §9.6 PROGRESS PAYMENTS §9.6.1 Based on complete and accurate Applications for Payment issued by the Contractor,and Certifications for Payment by Architect and Owner's approval of same,the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and elsewhere in the Contract Documents. Progress payments will be made as provided in the Contract Documents,assuming a complete Application for Payment Package is received.Notwithstanding the foregoing,Owner may withhold payment as provided herein. §9.6.2 The Contractor shall pay each Subcontractor no later than seven days after receipt of payment from the Owner the amount to which the Subcontractor is entitled under the terms of any applicable subcontract or purchase order,reflecting percentages actually retained from payments to the Contractor on account of the 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 Architect 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 Architect and Owner on account of portions of the Work done by such Subcontractor. §9.6.4 Contractor shall use all sums advanced to it pursuant to the Agreement solely for the purpose of performance of the Work in accordance with the Contract Documents. Payments to all Subcontractors,materialmen,and other parties furnishing labor and materials in connection with performance of the Work shall be accompanied by a conditional partial release of mechanic's and materialman's lien covering all sums through the effective date of the Application for Payment from each party required by the Owner and in accordance with Texas law. Neither the Owner nor Architect shall have an obligation to pay or to see to the payment of money to a Subcontractor,except as may otherwise be required by law. If Owner receives notice of an unpaid claim from a Subcontractor or supplier of any tier,the Owner may elect to pay any such Subcontractor or supplier directly,after five(5)business days written notice to Contractor,but not to the extent Contractor provides written notice to Owner within such five(5)business days that Contractor disputes the amount due the Subcontractor. In no event shall any joint payment or direct payment made by Owner under this Agreement be construed to create any(i)contract between the Owner and a Subcontractor or supplier of any tier,(ii)obligations from the Owner to such Subcontractor or supplier,or(iii)rights in such Subcontractor or supplier against the Owner. §9.6.5 Contractor payments to material and equipment suppliers shall be treated in a manner similar to that provided in Sections 9.6.2,9.6.3 and 9.6.4. §9.6.6 A Certificate for Payment,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. §9.6.7 The Owner has the right to request written evidence from the Contractor that the Contractor has properly paid Subcontractors and Suppliers amounts paid by the Owner to the Contractor for subcontracted Work If the Contractor fails to furnish such evidence within seven(7)days,the Owner shall have the right to contact Subcontractors and/or Suppliers to ascertain whether they have been properly paid. §9.6.8 Contractor shall maintain a detailed and accurate accounting system that shall be necessary for the proper financial management of the Project. Contractor's records and receipts shall allow for ready identification of all charges included in subcontracts,purchase orders,change orders, invoices and applications for payment Init. AIA Document A201 TM—2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA't Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 30 reproduction or distribution of this AIA"Document.or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law,This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) §9.7 FAILURE OF PAYMENT §9.7.1 Subject to Owner's right to withhold sums from payment set forth herein,upon issuance by Architect of a Certificate of Payment,if the Owner does not pay the Contractor within ten(10)days after the date established in the Contract Documents the amount certified by the Architect or awarded by binding dispute resolution,then the Contractor may,upon seven(7)additional days'written notice to the Owner and Architect,stop the Work until payment of the amount owing has been received.The Contract Time shall be extended appropriately and the Contract Sum shall be increased by the amount of the Contractor's reasonable costs of shut-down,delay and start- up,plus interest as provided for in the Contract Documents where such costs are related to any failure of payment by the Owner. §9.7.2 If the Owner is entitled to reimbursement or payment from the Contractor under or pursuant to the Contract Documents,such payment shall be made within thirty(30)days of written demand by the Owner. Notwithstanding anything contained in the Contract Documents to the contrary,if the Contractor fails to promptly make any payment due the Owner,or the Owner incurs any costs and expenses to cure any default of the Contractor or to correct defective Work,the Owner shall have an absolute right to offset such amount against the Contract Sum and may,in the Owner's sole discretion,elect either to: (1)deduct an amount equal to that which the Owner is entitled from any payment then or thereafter due the Contractor from the Owner,or(2)issue a written notice to the Contractor reducing the Guaranteed Maximum Price by an amount equal to that which the Owner is entitled. §9.8 SUBSTANTIAL COMPLETION §9.8.1 In addition to other requirements and conditions included in the Agreement,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(" Substantial Completion"). The"Substantial Completion Date"shall be as set forth in the GMP Amendment,and adjusted only as specifically allowed by the Contract Documents and approved by the Owner. As an express condition precedent to Substantial Completion,the Owner must receive all certificates of occupancy(temporary and permanent)and any other permits,approvals,licenses,and other documents from any governmental authority having jurisdiction thereof necessary for the beneficial occupancy of the Project. In general,the only remaining Work shall be minor in nature,so that the Owner could occupy and utilize the Project on that date and the completion of the Work by the Contractor would not materially interfere or hamper the Owner's normal business operations and the"Substantial Completion List of Deficiencies"(also commonly referred to as the"Punchlist") will be completed within a period of time not greater than 30 calendar days following the Substantial Completion Date. §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 Architect a comprehensive Substantial Completion List of Deficiencies which shall include items to be completed or corrected 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 Upon receipt of the Contractor's Substantial Completion List of Deficiencies,the Owner and upon the Owner's request,the Architect,will make an inspection to determine whether the Work or designated portion thereof is substantially complete.If the Architect'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 or Architect.In such case,the Contractor shall then submit a request for another inspection by the Owner and the Architect to determine Substantial Completion. §9.8.4 When the Work or designated portion thereof is substantially complete,the Architect will prepare a Certificate of Substantial Completion that shall establish the date of Substantial Completion with approval of Owner and pursuant to the terms of the Contract Documents herein,at which time the Owner shall assume responsibility for insurance(except as specifically set forth in the Insurance Requirements attached hereto),security, maintenance,heat,utilities,damage to the Work unless caused by the Contractor,its Subcontractors of any tier,or anyone over whom Contractor has control.Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof. Inst. AIA Document A201 TM—2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA)Document is protected by U.B.Copyright Law and International Treaties.Unauthorized 31 reproduction or distribution of this AIM'Document.or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) §9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their written acceptance of responsibilities assigned to them in such Certificate.Upon such acceptance and consent of surety,if any,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. §9.9 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 as required under requirements in Exhibit H(Insurance Requirements)and authorized by public authorities having jurisdiction over the Project.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 and the Architect as provided under Section 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 or,if no agreement is reached, by decision of the Architect. §9.9.2 Immediately prior to such partial occupancy or use,the Owner,Contractor and Architect 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. §9.9.3 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. §9.10 FINAL COMPLETION AND FINAL PAYMENT §9.10.1 Final Completion shall occur within thirty(30)days of Substantial Completion of the Project unless the parties agree in writing otherwise. Upon receipt of the Contractor's written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment and other documentation required by the Contract Documents for final payment„the Architect will promptly make such inspection and,when the Architect and Owner find the Work acceptable under the Contract Documents and the Contract fully performed,the Architect will promptly issue a final Certificate for Payment stating that to the best of the Architect's knowledge, information and belief,and on the basis of the Architect's on-site visits and inspections,the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in the final Certificate is due and payable.The Architect's final Certificate for Payment will constitute a further representation that conditions listed in Section 9.10.2 as precedent to the Contractor's being entitled to final payment have been fulfilled. All warranties and guarantees required under or pursuant to the Contract Documents shall be assembled and delivered by the Contractor to the Owner as part of the final Application for Payment. The final Certificate for Payment will not be issued until(1)all items specified in Section 9.10.2 and in this 9.10.1 have been provided and approved by Owner and(2)all warranties and guarantees have been received and accepted by the Owner. The Contractor shall assemble for approval by Owner three(3) electronic copies and one(1)hard copy of all operating and maintenance data for all equipment installed as part of the Work,which must be delivered on a jump drive to Owner on or before Final Completion of the Work. Final Payment shall not be released to Contractor until Owner's receipt of Conditional Waivers and Releases on Final Payment Documents from Contractor and all Subcontractors and suppliers of labor,material and equipment to the Project in such form as required under Texas law and in accordance with the Agreement. Contractor must provide Unconditional Lien Waivers in such form as required under Texas law within ten(10)days of receipt of Final Payment. §9.10.2 Neither final payment nor any remaining retained percentage shall become due and the Project shall not be finally complete until the Contractor submits to the Owner and Architect the following: (1) an affidavit,in compliance with Texas Property Code§53.085 and on a form required by the Owner that payrolls,bills for materials and equipment,and other indebtedness connected with the Work Init. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIAz Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 32 reproduction or distribution of this AIA''Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) 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, (2) a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect and will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner, (3) a written statement that to the best of the Contractor's knowledge,the insurance will cover the period required by the Contract Documents;, (4) consent of surety,if any,to final payment; (5) Conditional Waiver and Release on Final Payment documents from Contractor and all Subcontractors and suppliers furnishing materials,equipment or labor on the Project in for acceptable to Owner, executed and notarized to be effective under in compliance with Texas law; (6) all governmental or other approvals and permits required for the beneficial use and occupancy of the Work,including a permanent Certificate of Occupancy,have been received, (7) one hard copy and PDF set of As-Built Drawings showing,without limitation,all utility lines,all piping,ducts and similar work installed or altered by the Contractor, (8) certificates from the Contractor that the Project has been completed in accordance with the Contract Documents, (9) the Contractor's satisfactory cleaning of the site of the Work as required under the Contract Documents, (10) electronic files and one hard copy of all written guarantees and warranties,maintenance and operating files;and (11) the items identified in this Section 9.10 and other requirements set forth in the Agreement. §9.10.3 If Owner has received a written notice of intent to lien or reservation of lien rights under Chapter 53 of the Texas Property Code,Owner shall have the right to withhold 150%of the noticed amount from Final Payment until fifteen days after the deadline for the lien to be filed under the Code has passed,unless Contractor provides Owner with an unconditional release of said lien or a bond satisfactory to Owner to indemnify the Owner against such lien. If a Subcontractor refuses to furnish a release or waiver required by the Owner for a lien that has been filed against the Project,at the Owner's option,the Contractor may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien or the Owner may withhold Final Payment until said lien claim has been released.If any lien remains unsatisfied after payments are made,the Contractor shall refund to the Owner all money that the Owner may be compelled to pay in discharging such lien,including all costs and reasonable attorneys' fees. §9.10.4 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,and the Architect so confirms, the Owner shall,upon application by the Contractor and certification by the Architect,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 Architect prior to certification of such payment. Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. §9.10.5 Acceptance of final payment by the Contractor,a Subcontractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment. ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY §10.1 SAFETY PRECAUTIONS AND PROGRAMS As between Owner and Contractor,Contractor shall be responsible for initiating,maintaining and supervising all safety precautions and programs in connection with the performance of the Contract. Where consideration of labor, equipment or safety is involved,Contractor is responsible for all decisions,and Owner shall not incur any liability as a result of Contractor's decisions. Contractor shall monitor the establishment and execution of effective safety practices known to the industry,as applicable to the Work on this Project,and the compliance with all Applicable Laws. Init. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA" Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 33 reproduction or distribution of this AIA`''Document.or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADAOB) §10.2 SAFETY OF PERSONS AND PROPERTY §10.2.1 The Contractor shall take reasonable precautions for safety of,and shall provide reasonable protection to prevent damage, injury or loss to .1 employees on the Work and other persons who may be affected thereby; .2 the Work and materials and equipment to be incorporated therein,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 .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 shall comply with and give notices required by Applicable Laws,including statutes, ordinances,codes,rules and regulations,and lawful orders of public authorities bearing on safety of persons or property or their protection from damage,injury or loss. §10.2.3 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. The Contractor shall also be responsible,as part of the cost of the work for all measures reasonably necessary to protect any property adjacent to the Project and improvements therein. Any damage caused by Contractor or its subcontractors to such property or improvements shall be promptly repaired by the Contractor. §10.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work,the Contractor shall exercise a high degree of care and carry on such activities under supervision of properly qualified personnel. When use or storage of explosives or other such hazardous materials or equipment is necessary,the Contractor shall give Owner a written request. No work shall proceed involving such storage or use unless previously approved in writing by the Owner. §10.2.5 The Contractor shall promptly remedy damage and loss(other than damage or loss insured under property insurance required by the Contract Documents)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 and for which the Contractor is responsible under Sections 10.2.1.2 and 10.2.1.3,except damage or loss attributable to acts or omissions of the Owner or Architect or anyone directly or indirectly employed by either of them,or by anyone for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor.The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Section 3.18. §10.2.6 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 and Architect. §10.2.7 The Contractor shall not permit any part of the construction or site to be loaded so as to cause damage or create an unsafe condition. §10.2.8 INJURY OR DAMAGE TO PERSON OR PROPERTY The Contractor shall immediately report in writing to the Owner all accidents arising out of or in connection with the Work which cause death,personal injury,or property damage,giving full details and statements of any witnesses. In addition, if death,serious personal injuries,or serious property damages are caused,the accident shall be reported immediately by telephone or messenger to the Owner.Contractor shall provide complete access to the site for inspection or interviews of persons present at the site. §10.2.9 The performance of the services by the Contractor set forth in this Article 10 shall not relieve the Subcontractors of their responsibility for the safety of persons and property and for compliance with all federal,state and local statutes,rules,regulations and orders of any governmental authority applicable to the conduct of the Work or the Project. Init. AIA Document A201 TM-•2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA) Document is protected by U.S.Copyright Law and International Treaties.Unauthorized lA reproduction or distribution of this AIA''Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) §10.2.10 When all or a portion of the Work is suspended for any reason,the Contractor shall securely fasten down all coverings and protect the Work,including but not limited to the staging areas,as necessary,from injury by any cause. §10.2.11 Contractor shall be responsible for any of its fines,penalties or charges by any regulatory body by reason of any violation of safety or health regulations in the performance of the Work by Contractor, Subcontractors,or Sub-Subcontractors. §10.3 HAZARDOUS MATERIALS §10.3.1 The Contractor is responsible for compliance with any requirements included in the Contract Documents regarding Hazardous Materials. For purposes of this Section 10.3,the term "Hazardous Materials"shall mean all pollutants,contaminants,chemicals,and any other carcinogenic,ignitable,corrosive,reactive,toxic,or otherwise hazardous substances subject to regulation,control,or remediation under applicable federal,state or local environmental laws or regulations, including without limitation,substances defined as"hazardous wastes," "hazardous substances,""hazardous materials," "toxic substances"or"solid wastes"in the Comprehensive Response,Compensation and Liability Act of 1980,as amended,42 U.S.C. Section 9601 et.Seq.;the Resource Conservation and Recovery Act,42 U.S.C. Section 2601,et. Seq.;and any other applicable laws and regulations and all amendments and revisions thereto. §10.3.1.1 If the Contractor encounters a Hazardous Material or substance not addressed in the Contract Documents and if reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance,including but not limited to asbestos or polychlorinated biphenyl(PCB),encountered on the site by the Contractor,the Contractor shall,upon recognizing the condition,immediately stop Work in the affected area and report the condition to the Owner and Architect in writing. §10.3.2 Upon receipt of the Contractor's written notice,the Owner shall obtain the services of a licensed laboratory to verify the presence or absence of the material or substance reported by the Contractor and,in the event such material or substance is found to be present,to cause it to be rendered harmless.When the Hazardous Material has been rendered harmless,Work in the affected area shall resume upon written agreement of the Owner and Contractor.By Change Order,the Contract Time shall be extended appropriately and the Guaranteed Maximum Price shall be increased in the amount of the Contractor's reasonable additional costs of shut-down,delay and start- up. §10.3.3 The Owner shall indemnify and hold harmless the Contractor, Subcontractors and employees of any of them from and against claims,damages,losses and expenses arising out of or resulting from performance of the Work if Hazardous Materials at the Project cause bodily injury or death,and has not been rendered harmless,provided that such claim,damage,loss or expense is attributable to bodily injury,sickness,disease or death,or to injury to or destruction of tangible property(other than the Work itself),except to the extent that such damage,loss or expense is due to the fault or negligence of the party seeking indemnity. It being expressly recognized by Contractor that failure to immediately stop work in accordance with Section 10.3.1.1 of the General Conditions shall be a waiver of the indemnity provided by Owner in 10.3.3. §10.3.4 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. §10.3.5 Contractor agrees that it shall not transport to,use,generate,dispose of,or install at the Project site any Hazardous Materials,except in accordance with Applicable Law. Further, in performing the Work,Contractor shall not cause any release of Hazardous Materials into,or contamination of,the environment,including the soil,the atmosphere,any water course or ground water unless required by the Contract Documents. In the event Contractor engages in any of the activities prohibited in this Section 10.3 or fails to stop work as provided in Section 10.3, Contractor shall indemnify,defend,and hold harmless the Indemnified Parties and their respective officers, employees,from and against any and all claims,damages,losses,causes of action,suits and liabilities of every kind,including,but not limited to,expenses of litigation,court costs,punitive damages and attorneys' fees,arising out of,incident to or resulting from the activities prohibited in this Section 10.3 or Contractor's failure to stop work as required. Init. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 35 reproduction or distribution of this AIA''Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) Contractor shall obtain from manufacturers and furnish to Owner the Material Safety Data Sheets(OSHA Form 20) for all Hazardous Materials incorporated into the Project by the Contractor. §10.3.6 If,without negligence on the part of the Contractor,the Contractor is held liable by a government agency for the cost of remediation of a hazardous material or substance by reason of performing Work as required by the Contract Documents,the Owner shall indemnify the Contractor for all cost and expense thereby incurred. §10.4 EMERGENCIES In an emergency affecting safety of persons or property,the Contractor shall act,at the Contractor's discretion,to prevent threatened damage, injury or loss.Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in this Agreement;provided the Contractor shall not be entitled to additional compensation or an extension of time if an emergency is caused by the negligence or failure to fulfill a specific responsibility of the Contractor to the Owner set forth in the Contract Documents or the failure of the Contractor's personnel to supervise adequately the Work of the Subcontractors or Suppliers. ARTICLE 11 INSURANCE AND BONDS Contractor and Owner shall purchase and maintain the coverages and limits of insurance as set forth in Exhibit H— Insurance Requirements which is incorporated by reference as if fully set forth herein below. 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 Architect's,governmental authority's or Owner's request or to requirements specifically expressed in the Contract Documents,it must,if requested in writing by the Architect or Owner,be uncovered for the Architect's governmental authority's or Owner's examination at the Contractor's expense(not chargeable to the Contract Sum)and be replaced without change in the Contract Time or Guaranteed Maximum Price(subject to applicable limitations in the Agreement on reimbursement for Cost of the Work). Init. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIM Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 36 reproduction or distribution of this AIM Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the / maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) §12.1.2 If a portion of the Work has been covered that the Architect,governmental authority,or Owner has not specifically requested to examine prior to its being covered,the Architect,governmental authority,or 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,such costs of uncovering shall be at the Contractor's expense(not chargeable to the Guaranteed Maximum Price)and the cost of correction and/or replacement shall be without change in the Contract Time or Guaranteed Maximum Price(subject to applicable limitations in the Agreement on reimbursement for Cost of the Work),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 The Contractor shall promptly correct Work which is incomplete,defective or rejected by the Architect,Owner,or any governmental authority, or failing to conform to the requirements of the Contract Documents,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,the cost of uncovering and replacement, and compensation for the Architect's services and expenses made necessary thereby,shall be without change in the Contract Time or Guaranteed Maximum Price(subject to applicable limitations in the Agreement on reimbursement for Cost of the Work)to the extent incurred prior to final payment and at the Contractor's expense(not chargeable to the Contract Sum or otherwise reimbursable from Owner)after final payment.If prior to the date of Substantial Completion,the Contractor,a Subcontractor or Sub-subcontractor or anyone for whom either is responsible uses or damages any portion of the Work,including,without limitation,mechanical,electrical,plumbing and other building systems,machinery,equipment or other mechanical device,the Contractor shall cause such item to be restored to "like new"condition at no expense to the Owner. . §12.2.1.2 Contractor shall correct any defects in the Work or damage to other property caused by defects in the Work or the repairing of such defects with a minimum of inconvenience to Owner and at times least disruptive to the operation of the Project. §12.2.2 AFTER SUBSTANTIAL COMPLETION §12.2.2.1 In addition to the Contractor's obligations under Section 3.5,if,within one(1)year after the date of Substantial Completion of the Work(or any longer period expressly required by the Contract Documents),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 an express written acceptance of such condition. The Owner shall give such notice promptly after discovery of the condition.If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the Owner or Architect,the Owner may correct it in accordance with Section 2.4. §12.2.2.2 Contractor shall maintain a complete and accurate schedule of the dates upon which the corrective periods or express warranties will expire. Prior to termination of the one(1)year corrective/warranty period required and upon the request of the Owner,Contractor shall accompany the Owner,and the Architect(if requested by Owner), on re-inspection of the improvements or building(s)covered thereby and shall be responsible for correcting any reasonable additional deficiencies not caused by the Owner or by the use of the respective improvements or building which are observed or reported during the re-inspection. For extended warranties expressly required by the Contract Documents(i.e.,roofing,compressors,mechanical equipment),Owner will notify the Contractor of deficiencies and during the warranty period Contractor shall promptly cooperate and assist Owner in contacting the responsible parties,but this shall not extend Contractor's warranty past the one-year term set forth herein.Contractor shall prosecute the work without interruption until accepted by the Owner and the Architect(if retained by the Owner for such purpose),even though such prosecution should extend beyond the limit of the warranty period. If Contractor fails to provide notice of the expiration of the one(1)year corrective/warranty period at least one(1)month prior to the expiration date,Contractor's correction/warranty obligations described in this paragraph shall continue until such inspection is conducted and any deficiencies found in the inspection corrected. Inst. AIA Document A201 T""—2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIAx Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 37 reproduction or distribution of this AIA''Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law,This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) §12.2.2.3 Upon completion of any Work under or pursuant to this Paragraph 12.2,the one year correction period in connection with the Work requiring correction shall recommence. The obligations under Paragraph 12.2 shall cover any repairs and replacements to any part of the Work or other property that is damaged by the defective Work. §12.2.3 The Contractor shall remove from the site portions of the Work that 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 that is not in accordance with the requirements of the Contract Documents. §12.2.5 Nothing contained in this Section 12.2 shall be construed to establish a period of limitation with respect to other obligations the Contractor has under the Contract Documents.Establishment of the required period for correction of Work as described in Section 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 nonconforming or defective Work that was discovered or reasonably discoverable during the one year corrective period established herein.. §12.2.6 Contractor's express warranties in this Section 12.2, Section 2.1.3 of the Agreement,and elsewhere in the Contract Documents,shall be in addition to,and not in lieu of,any other remedies that Owner may have under this Agreement and the Contract Documents,at law or in equity,for defective Work or other failure of Contractor to perform its Work in accordance with the Contract Documents. §12.3 ACCEPTANCE OF NONCONFORMING WORK If the Owner prefers to expressly and in writing accept Work that 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 Guaranteed Maximum Price will be reduced as appropriate and equitable.Such adjustment shall be effected whether or not final payment has been made. ARTICLE 13 MISCELLANEOUS PROVISIONS §13.1 GOVERNING LAW The Contract shall be governed by the law of the place where the Project is located. §13.2 SUCCESSORS AND ASSIGNS §13.2.1 In addition to and without limiting the provisions set forth in the Agreement regarding assignment, Contractor may not assign this Agreement,and more specifically may not assign this Agreement or the receivable under this Agreement,to a factoring company,without the express written consent of Owner.Contractor shall not be relieved of its obligations under this Agreement in the event of an unauthorized assignment.It is agreed that any sale, merger,corporate reorganization or significant change of ownership of Contractor,or any substantial alteration in the nature or character of its business shall constitute a change in Contractor.Continuation of this Agreement after such a change shall be considered to be an assignment. §13.2.2 The Owner may,without consent of the Contractor,assign the Contract to a lender providing construction financing for the Project,if the lender assumes the Owner's rights and obligations under the Contract Documents. The Contractor shall execute all consents reasonably required to facilitate such assignment. §13.3 WRITTEN NOTICE Written notice shall be deemed to have been duly served if delivered in person to the individual,to a member of the firm or entity,or to an officer of the corporation for which it was intended;or if delivered at,or sent by registered or certified mail or by courier service providing proof of delivery to,the last business address known to the party giving notice. Init. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIN')Document is protected by U.B.Copyright Law and International Treaties,Unauthorized 38 reproduction or distribution of this AIA''Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the / maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) §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,Architect 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 there under,except as may be specifically agreed in writing. Inspection by,payment by or tentative approval or acceptance by Owner or Architect,or the failure by Owner or Architect to perform any inspection hereunder, shall not constitute a final acceptance of the Work or any part thereof,and shall not release Contractor from any of its duties or obligations to perform under the Contract Documents. §13.5 TESTS AND INSPECTIONS §13.5.1 Tests,inspections and approvals of portions of the Work shall be made as required by the Contract Documents and by Applicable Laws.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 Architect and Owner timely notice of when and where tests and inspections are to be made so that the Architect and Owner may be present for such procedures.The Owner shall bear costs of(1)tests,inspections or approvals that do not become requirements until after GMP Proposal Number 2,and(2)tests,inspections or approvals where building codes or Applicable Laws or regulations prohibit the Owner from delegating their cost to the Contractor. Architect,Owner and Contractor shall be afforded a reasonable opportunity to attend,observe and witness all inspections and tests of the Work.Architect or Owner may at any time request and receive from Contractor satisfactory evidence that materials,supplies or equipment are in conformance with the Contract Documents.The conduct of any inspection or test,and the receipt of any approval,shall not operate to relieve Contractor from its obligations under the Contract Documents,unless specifically so stated by Owner in writing. §13.5.2 If the Architect,Owner,or public authorities having jurisdiction determine that portions of the Work require additional testing,inspection or approval not included under Section 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 Architect and Owner of when and where tests and inspections are to be made so that the Architect and Owner may be present for such procedures. Such costs,except as provided in Section 13.5.3,shall be at the Owner's expense. §13.5.3 If such procedures for testing, inspection or approval under Sections 13.5.1 and 13.5.2 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 Architect's services and 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 Architect. §13.5.5 If the Architect is to observe tests,inspections or approvals required by the Contract Documents,the Architect 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 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. ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT Init. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA" Document is protected by U.S.Copyright Law and international Treaties.Unauthorized 39 reproduction or distribution of this AIA''Document.or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law,This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) §14.1 TERMINATION BY THE CONTRACTOR §14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of 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,reasons,subject to the requirements and provisions of Section 14.1.3 below: .1 Issuance of an order of a court or other public authority having jurisdiction that requires all Work to be stopped; .2 An act of government,such as a declaration of national emergency that requires all Work to be stopped; .3 The Contractor is entitled to and has suspended performance in accordance with Section 9.7 above;or .4 The Owner has failed to furnish to the Contractor,upon the Contractor's request,reasonable evidence of financial arrangements as required by the Agreement. §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 Section 14.3 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,subject to the requirements and provisions of Section 14.1.3 below. §14.1.3 If the Work has been suspended or delayed for one of the reasons described in Section 14.1.1 or 14.1.2 for a period of at least 30 consecutive days,the Contractor may,upon ten(10)days' additional written notice to the Owner and Architect,terminate the Contract and recover from the Owner as provided in Section 14.1.5,and for proven loss with respect to materials,equipment,tools,and construction equipment and machinery,but only if the basis for the suspension,delay or interruption has not been removed or cured within such additional ten(10)day period after giving notice of intent to terminate. §14.1.4 If the Work is stopped for a period of 30 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 otherwise repeatedly 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 ten (10)additional days' written notice to the Owner and the Architect,terminate the Contract and recover from the Owner as provided in Section 14.1.5,but only if the basis for such termination has not been removed or cured prior to the effective date of termination.. §14.1.5 In the event of a termination by Contractor under this Section 14.1,Contractor shall recover from the Owner only such amount that would be recoverable from the Owner in the event of the Owner's termination for convenience under Subsection 14.4.3 below. §14.2 TERMINATION BY THE OWNER FOR CAUSE §14.2.1 The Owner may terminate the Contract if .1 the Contractor repeatedly refuses or fails to supply enough properly skilled workers or proper materials; .2 the Contractor fails to make payment to Subcontractors for materials or labor for which Contractor has been paid by Owner in accordance with the respective agreements between the Contractor and the Subcontractors; .3 the Contractor disregards Applicable Laws,including statutes,ordinances,codes, rules and regulations,or lawful orders of a public authority; .4 the Contractor is otherwise is guilty of substantial breach of a provision of the Contract Documents; .5 the Contractor becomes insolvent,or makes a transfer in fraud of creditors,or makes an assignment for the benefit of creditors; .6 the Contractor files or has filed against it a petition under any chapter or section of the United States Bankruptcy Code,as amended,or under any similar law or statute of the United States or any state thereof,or shall be adjudged bankrupt or insolvent in any legal proceeding;or a receiver or trustee is appointed for all or a significant portion of the assets of Contractor; Init. AIA Document A201 TM-2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA Document is protected by U.S,Copyright Law and International Treaties,Unauthorized 40 reproduction or distribution of this AIA''Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) .7 the Contractor actually or constructively abandons,or puts Owner on actual or constructive notice that it intends to abandon,the Project;or .8 the progress of construction is such that Owner reasonably believes that the Contractor shall not be able to achieve Substantial Completion within thirty(30)days following the Date of Substantial Completion required by the Agreement and Contractor has not delivered and implemented a recovery plan as required under the Agreement or has not recovered the schedule sufficient to meet the respective Contract Time requirements within thirty days after written notice to Contractor by Owner. Without limiting the foregoing,Owner shall be deemed to have a reasonable belief that the Contractor shall not be able to achieve Substantial Completion by the date required pursuant to the preceding sentence if the Contractor shall fail to achieve a Critical Milestone(as defined in the Agreement)within thirty(30)days of the date for such Critical Milestone as set forth in the Contract Documents or the Schedule of the Work incorporated into the Contract Documents. §14.2.2 When any of the above reasons exist,the Owner may without prejudice to any other rights or remedies of the Owner subject to any prior rights of the surety give Contractor notice of default. If Contractor has not corrected said default within ten(10)calendar days(or diligently commenced efforts if correction will take longer than ten (10)Calendar days),then Owner may terminate this Agreement and: .1 Exclude the Contractor from the site and take possession of all materials,and equipment,thereon owned by the Contractor; .2 Accept assignment of subcontracts pursuant to Section 5.4;and .3 Finish the Work by whatever reasonable method the Owner may deem expedient.Upon written 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. Notwithstanding the foregoing,if Owner reasonably determines that Contractor's acts or omissions pose an immediate and substantial threat or danger of injury to persons or damage to the Work or other property, Owner may,without prejudice to any other rights or remedies granted by this Contract or by law, immediately suspend Contractor's performance of the Work,take immediate possession of the Project site, take such further action reasonably necessary to prevent,mitigate against,remove,or repair such threat or damage,and deduct such costs and expenses it reasonably incurs from any sums due and owing to the Contractor or,in the absence thereof,to recover such costs and expenses from the Contractor. §14.2.3 After any termination of this Contract by Owner pursuant to this Subsection 14.2,Contractor shall not be entitled to any further payment except to the extent of any amount by which Work completed or installed by Contractor prior to such termination and not previously paid for by Owner exceeds the amount due by Contractor to Owner under this Section 14.2(including all damages which Owner would be entitled to recover at law from Contractor by reason of Contractor's breach),and even then only at such time as the Work is finally completed. It is expressly agreed that pursuit by Owner of any one or more of the remedies provided herein or otherwise available at law or in equity shall not constitute an election of remedies by Owner,nor shall forbearance by Owner to enforce one or more of the remedies provided herein upon an event of default by Contractor be deemed or construed to constitute a waiver of such default. §14.2.4 If the unpaid balance of the Guaranteed Maximum Price exceeds costs of finishing the Work, including compensation for the Architect's services and 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. Inst. AIA Document A201 TM—2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 41 reproduction or distribution of this AIM'Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) §14.2.5 It is recognized that: (1)if an order for relief is entered on behalf of the Contractor pursuant to Title 11 of the United States Bankruptcy Code,(2)if any other similar order is entered under any other debtor relief laws,(3)if Contractor makes a general assignment for the benefit of its creditors,(4)if a receiver is appointed for the benefit of its creditors,or(5)if a receiver is appointed on account of its insolvency,any such event could impair or frustrate Contractor's performance of the Contract Documents. Accordingly,it is agreed that upon the occurrence of any such event,Owner shall be entitled to request of the Contractor or its successor-in-interest adequate assurance of future performance in accordance with the terms and conditions of the Contract Documents. Failure to comply with such request within ten(10)days of delivery of the request shall entitle Owner to terminate the Contract and shall entitle the Owner to the accompanying rights set forth above in Subsections 14.2.1 through 14.2.4 hereof. In all events pending receipt of adequate assurance of performance and actual performance in accordance therewith,Owner shall be entitled to proceed with the Work with its own forces or with other contractors on a time and material or other appropriate basis,the cost of which will be back-charged against the Contract Sum. §14.2.6 If,after termination of this Contract under this Section 14.2,it is determined that Contractor was not in default or that sufficient cause to terminate hereunder did not exist,the rights and obligations of the parties shall be determined as if the termination had been issued for convenience of the Owner as provided in Section 14.4 below. §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. Upon receipt of such notice,the Contractor shall, unless the notice required otherwise: .1 Immediately discontinue work on the date and to the extent specified in the notice; .2 Place no further orders or subcontracts for material,services,or facilities with respect to suspended Work other than to the extent required in the notice; .3 Promptly make every reasonable effort to obtain suspension upon terms satisfactory to the Owner of all orders,subcontracts,and rental agreements to the extent that they relate to performance of Work suspended;and .4 Unless otherwise specifically stated in the notice,continue to protect and maintain the Work,including those portions on which Work has been suspended. §14.3.2 The Guaranteed Maximum Price and Contract Time shall be adjusted for increases in the cost and time caused by suspension,delay or interruption as described in Section 14.3.1.Adjustment of the Guaranteed Maximum Price shall include profit only as expressly authorized by the Agreement.No adjustment shall be made to the extent: .1 that performance is,was or would have been so suspended,delayed or interrupted by another cause for which the Contractor is responsible;or .2 that an equitable adjustment is made or denied under another provision of the Contract. §14.3.3 Adjustments made for increases in the cost shall be limited to the increase or decrease in the cost directly attributable to such suspension. §14.3.4 When all or a portion of the Work is suspended for any reason,as part of the scope of work,the Contractor shall securely fasten down all coverings and protect the Work,as necessary. Costs for doing so shall be compensable pursuant to section 14.3.2 but only to the extent not otherwise provided for in the Contract Sum. §14.4 TERMINATION BY THE OWNER FOR CONVENIENCE §14.4.1 The Owner may,at any time,terminate the Contract 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 .1 cease operations as directed by the Owner in the notice; .2 take actions necessary,or that the Owner may direct,for the protection and preservation of the Work; and .3 place no further orders or subcontracts for material,services,or facilities except as may be necessary or required for completion of such portion of the Work under the Contract that is not terminated; Init. AIA Document A201 TM—2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA') Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 42 reproduction or distribution of this AIA`'Document,or any portion of it.may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) .4 assist the Owner as specifically requested,in writing,in the maintenance,protection,and disposition of property acquired by the Owner under the Contract; .5 transfer to Owner title to Work completed for which payment is made to the Contractor;and .6 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 In case of such termination for the Owner's convenience,the Contractor shall be entitled to receive payment only for the following: (a)amounts due and owing for the Work performed to date including overhead and profit on such completed Work,based on the Schedule of Values[except retainage shall be paid in accordance with the terms governing Final Payment,as set forth in Section 9.10],(b)materials timely fabricated off the Project site and delivered and stored in accordance with the Owner's instructions;and(c)the direct,actual and unavoidable(by the exercise of reasonable care)costs incurred by Contractor in terminating the Work and demobilizing the site, including,but not limited to,the cost of canceling subcontracts and purchase orders not assumed by Owner,and other such out-of-pocket costs incurred by Contractor to third parties with respect to termination of this Contract. Such sums shall be due and payable as provided for Final Payment in the Contract Documents. Upon receipt of such payment,the parties shall have no further obligations to each other except for Contractor's obligations to perform corrective or warranty work and for indemnification as set forth in Section 3.18 herein. No fees or overhead shall be due or payable for unperformed Work. Contractor agrees that each subcontract and purchase order it issues for the Work will reserve for Contractor the same right of termination provided by this Section and Contractor further agrees to require that comparable provisions be included in all lower tier subcontracts and purchase orders. Owner shall be entitled to take possession of the Work and use copies of all files relating to performance of the Work of Contractor in completing the Work,except for confidential or proprietary information regarding Contractor. ARTICLE 15 CLAIMS AND DISPUTES §15.1 CLAIMS Claims are defined in Section 4.3 herein and shall be commenced and handled pursuant to the provisions of Section 4.3 unless the parties mutually agree otherwise. §15.2 IN-PERSON MEETING For Claims not resolved pursuant to Section 4.3,the parties herein(and any other relevant party to the dispute,including Subcontractors)shall agree to conduct an in-person meeting of an Executive for each the Owner and the Contractor. Each executive must have authority to settle the Claim at the in-person meeting. Should the parties not resolve the Claim pursuant to the in-person meeting,the claimant may request mediation and proceed with dispute resolution as set forth herein below. §15.3 MEDIATION §15.3.1 Claims arising out of or related to the Contract,which are not resolved pursuant to Section 4.3 or 15.2,and except those specifically waived as provided for in the Contract may be subject to mediation as mutually agreed upon by the parties. §15.3.2 The parties shall endeavor to resolve their Claims by mediation which,unless the parties mutually agree otherwise,shall be in accordance with the American Arbitration Association's Construction Industry Mediation Procedures in effect on the date of the Agreement.A request for mediation shall be made in writing,delivered to the other party to the Contract..The request may be made concurrently with the filing of binding dispute resolution proceedings but,in such event,mediation shall proceed in advance of binding dispute resolution proceedings,which shall be stayed pending mediation for a period of 60 days from the date of filing,unless stayed for a longer period by agreement of the parties or court order.The parties shall select a mediator who is a lawyer whose primary practice is in the construction industry with a working knowledge of Texas law,and who has been in practice in the construction industry for a period of no less than 10 years. §15.3.3 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. Init. AIA Document A201 TM—2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized AA reproduction or distribution of this ALA'Document,or any portion of it.may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B) 15.4 LITIGATION Any Claims not resolved through the process set forth in Article 15 shall be subject to litigation,in accordance with the laws of the State of Texas,and in a court of competent jurisdiction in the State of Texas. 15.5 CONSEQUENTIAL DAMAGES Except for and excluding claims for Liquidated Damages as set forth in this Agreement,the Parties agree that in any claims of any nature whatsoever arising out of or related to this Contract without regard to legal theory(contract,tort,or otherwise) under which such liability is imposed,the maximum amount of recovery in the aggregate for consequential damages shall be limited to Ten Million($10,000,000)Dollars. *END OF DOCUMENT* Mit. AIA Document A201 T"'—2007.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AlA® Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 44 reproduction or distribution of this AIA`'Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 20:50:38 on 04/11/2018 under Order No.2212032907 which expires on 03/05/2019,and is not for resale. User Notes: (3B9ADA0B)