Request for Proposals
RFP No. P-366
Construction Manager at Risk Services
Main Campus
Building “A” Renovation
Central New Mexico Community College
525 Buena Vista Drive, SE
Albuquerque, NM 87106
Issue date: July 14, 2014
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TABLE OF CONTENTS:
PART 1
PART 2
PART 3
SECTION B:
SECTION C:
SECTION E:
EXHIBIT A:
ATTACHMENT A:
ATTACHMENT B:
PAGE #
GENERAL RFP INFORMATION
Obtaining Copies of RFP
Schedule of Events
PROJECT INFORMATION
Project Summary
Organizational Profile
Scope of Work/MACC
NMSA Governing Information
Purpose of this RFP
Standard Terms and Conditions and General Requirements
Procurement Management
Procurement Manager
Deliveries
Inquiries
CONDITIONS GOVERNING THE PROPOSAL
Schedule of Events
Explanation of Events
Insurance, Bonding and Other Special Conditions
RESPONSE FORMAT AND ORGANIZATION
Number of Responses/Number of Originals and Copies
Proposals
Proposal Bond
RFP Standard Proposal Terms and Conditions
General Terms and Conditions
Signature of Firm’s Authorized Representative
Contract for Construction Manager at Risk, General Conditions for the Contract for Construction
Manager at Risk, GMP Amendment to CMAR Contract, Summary Matrix of Cost Allocation
Form of Proposal for CMAR Fee and Specified General Conditions
Proposal Bond
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GENERAL RFP INFORMATION
Central New Mexico Community College
Purchasing Department
525 Buena Vista Drive, SE
Building “A”, Room A109
Albuquerque, NM 87106
NOTICE FOR REQUEST FOR PROPOSALS, STEP 2
Request for Proposals #366
Deadline for submission of Proposals for CMAR Fee and Specified General Conditions:
July 29, 2014, 3:00 p.m. Mountain Time
Title: Construction Manager at Risk Services – Main Campus, Building “A” Renovation
This Request for Proposal (RFP) is governed by the following which are all-inclusive by reference: A new section of the
Procurement Code, Construction Manager at Risk Section 13-1-124.1 through 13-1-124.5 NMSA 1978. In addition to the
new section, 13-1-111, 13-1-119.1, 13-1-117.1 NMSA 1978 and the New Mexico Administrative Code (NMAC) 1.4.1
regulations of September 30, 2006 govern this process. These documents are available for review upon request.
This Proposal is Step 2 of the Three Step process where Project funds exceed $500,000 as outlined in NMSA 13-1-124.
Step 1, Request for Qualifications, determined the Qualified Firms that received this Request for Proposal (RFP). Once the
RFP’s are evaluated, the Selection Committee will proceed to Step 3, Interviews of the Short-Listed Finalists. Scores for
the Interviews will be added to the RFP scores and ranked to determine an overall Finalist for recommendation to the
Central New Mexico Community College Governing Board for the purpose of entering into negotiations and execution of a
final Contract for Construction Manager at Risk.
The Construction Manager at Risk Request for Proposal requires that the Qualified Firms carefully examine the contract
documents and conditions affecting the Work, and be familiar with the site. The Offeror shall submit a fee/cost proposal
that consists of the Construction Manager at Risk Fee and Specified General Conditions (Form of Proposals included
herein) to execute the Project.
Sealed Proposals must be received at the above address no later than the time and date specified above. Any Proposal
received after the deadline will not be accepted and will be returned unopened. It is solely the responsibility of each respondent
to assure that its Proposal is delivered at the specified place and prior to the deadline for submission. All information must be
entered in ink or typed and corrections must be initialed. Proposals must be in a sealed package and must be clearly marked
with the RFP number and submission deadline (as listed above) in the lower left hand corner.
Eligible Contractors are encouraged to be registered with the New Mexico Taxation and Revenue Department as New Mexico
Resident Contractors or New Mexico Resident Veteran Contractors. By being a New Mexico Resident Contractor or New
Mexico Resident Veteran Contractor, a contractor will be given additional percentage(s) of the total possible evaluation points
added to their scores, as determined by statute. To qualify, eligible contractors must have submitted a valid certificate issued
by the New Mexico Department of Taxation and Revenue Department in response to the RFQ/SOQ which preceded this RFP.
Copies of and information regarding this RFP may be obtained at CNM’s Purchasing Office, on CNM’s website, under P-366
(http://www.cnm.edu/depts/purchasing/request-for-proposals), by contacting Keith Adams at 505.224.4546 (phone) or
505.224.4548 (fax) or by email at [email protected].
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Schedule of Events:

CNM evaluates SOQ’s submitted in response to Step 1 of this procurement
and sends RFP’s to qualified firms .................................................................. ………………………July 14, 2014

Mandatory Pre-Proposal Conference (9:00 a.m. Mountain Time, Building ‘A’, Room A36)….July 18, 2014

Question submission deadline (12:00 Noon Mountain Time)……………….………………………….July 23, 2014

Proposals Submission deadline (3:00 p.m. Mountain Time)…. ................. …….........................July 29, 2014

CNM notifies three (3) most qualified firms……………………………………....................................August 4, 2014

Interviews (Times & Place TBD)………………………………………………………...........................August 8, 2014

Action by CNM Capital Outlay Committee………………………………………………………………August 18, 2014

Action by CNM Governing Board.………………………………………………………....................September 9, 2014

Contact apparent awardee and post awardee information on CNM website……….................September 10, 2014

Negotiate Preconstruction Services…………………………………………………………………September 12, 2014

Contract Award…………………………………………………………………………….................September 26, 2014
NOTE: CNM reserves the right to amend and/or change this schedule of RFP/RFP activities, as it deems necessary
under the circumstances.
Other information
Proposer shall provide one (1) original signed and executed copy of its Proposal.
FOB destination
Terms and Conditions
CNM reserves the right to request clarification and modification of any Proposal prior to the contract award being made.
The purchases of any material(s) and/or service(s) awarded under this RFP, the RFQ that preceded it and the contract
that follow are subject to the specifications and to CNM’s Standard Terms and Conditions and General Terms and
Conditions attached to the RFP as Sections B and C. CNM reserves the right to accept and/or reject, at its sole
discretion, any or all Proposals, or part thereof, waive technicalities, or re-advertise when the best interest of CNM will
be realized thereby.
Central New Mexico Community College
Albuquerque, New Mexico 87106
J. Keith Adams
Senior Buyer
Purchasing Department
Dated: July 14, 2014
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PART 1 - PROJECT INFORMATION
Project Summary
CNM is seeking to renovate the Building “A” to meet the needs of the administrative departments to help support CNM.
With the recent relocation of the baking and cooking labs to the new Robert P. Matteucci Building, CNM would like to
renovate the space to accommodate the need for new functions and departmental growth. The current planning calls
for the renovation of the portions of the building to provide for additional office suites to support the growing need for
office space across CNM. This project will also include the upgrades to all building systems, building envelope and
improvements to the elevators. The project will include upgrading the building envelope to provide better energy
efficiencies and include upgrading the mechanical systems to improve energy use. The project will also include the
development of the entryways around the building to note entry into various departments. The project will also include
the development of the “A” Building patio area to enhance outdoor seating areas of the campus. The facility will include
administrative office suites to house such functions as budget/business office, internal auditors’ offices, MCO,
Purchasing, Human Resources, Scheduling Department and other similar offices to consolidate CNM resources.
It is the intent that the building remains functional during construction and will require that the CMAR work closely with
the Design Professional and CNM to develop a plan and schedule for construction that permits the facility to remain
occupied during construction. The project shall be designed and constructed to meet LEED Silver Certification,
at a minimum.
Work on the interior of Building “A” shall be completed in three phases:
Phase I: Work on the first floor of the building.
Phase II: Renovation of a portion of the second floor to house a Human Resources suite. Work for Phase II will begin
immediately upon completion of Phase I.
Phase III: The remainder of the second floor to complete the renovation.
Work on the building exterior and in the courtyard can be completed at any time during the contract term.
The project will include the following:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Formal entry way to the building.
Walkway connection to the existing pedestrian walkways.
Fire protection.
Relocation of utilities and infrastructure to accommodate future growth.
Telecommunications and data infrastructure for future growth.
Conduit for future growth.
Camera security surveillance systems, intrusion alarms and access control.
Elevator improvements
Replacement of existing voice, data, and other low voltage cable such as cabling for intrusion alarms with a
structured communications cabling system and data infrastructure to support future growth.
10. Signage/Wayfinding.
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Organizational Profile
Overview
CNM is the largest community college in the State of New Mexico providing year round instruction. CNM has an enrollment of
approximately 30,000 students in both the fall and spring semesters with approximately 15,000 students enrolled in the summer
term. The current Full Time Enrollment (FTE) is approximately 20,000 students. CNM serves its students at multiple campuses
and locations: Main, Joseph M. Montoya (JMMC), South Valley, Westside, Workforce Training Center (WTC), Rio Rancho, and
Alameda Technical Center (ATC) as well as through online distance learning and hybrid instruction. CNM offers associate degrees
and certificates in a variety of subject areas.
Current Construction Program
There are four (4) major renovation projects planned for advertisement in the summer and fall of 2014. CNM will be selecting a
Construction Manager at Risk for each of these projects. The projects are:
Project:
Estimated MACC:
Main Campus – Building “A” Renovation
$ 6,930,000
Main Campus – Smith Brasher Hall Renovation
$16,770,000
Montoya Campus – Building “J” Renovation
$ 8,400,000
South Valley Campus Renovation
$ 3,025,000
Separate and distinct Requests for Qualifications (RFPs) will be issued by CNM for each project.
Proposers are encouraged to submit Statements of Qualifications in response to as many solicitations as they deem appropriate.
This Request for Proposal will apply only to the Main Campus – Building “A” Renovation Project.
Scope of Work
The CMAR shall actively participate as a member of the project team with CNM and the Design Professional beginning with design
concept and constructability reviews and construction cost estimating at the completion of programming and will continue through
the design, construction, commissioning, closeout and warranty phases of the project. The purpose of these pre-construction,
construction, commissioning, closeout and warranty responsibilities is to provide the expertise necessary to ensure that the
program objectives are realized, the project budget and schedule are met, the facility is fully operational when occupied, and
defects detected during the Warranty Period are addressed.
The CMAR shall provide pre-construction services, including, but not limited to attending and participating in design meetings with
CNM and the Design Professional; attending and participating in LEED meetings and charrettes with CNM and the Design
Professional; identifying safe work practices and requirements for construction; assessing and recommending site logistics
requirements; recommending phasing and sequencing of the work; construction scheduling; cost estimating; assessing alternative
construction methods and products for Value Engineering and life cycle cost considerations; and, participating in CNM’s phased
design and construction document reviews utilizing BIM and REVIT technology.
The CMAR shall propose a Guaranteed Maximum Price, which shall be the sum of estimated cost of the Work, its Preconstruction
Fee and its proposal for Specified General Conditions and Construction Manager’s fee. The CMAR shall indicate the percentage
of the Guaranteed Maximum Price that it will perform with its own work forces.
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The CMAR, in cooperation with CNM and the Design Professional, shall seek to develop subcontractor interest in the project,
conduct pre-bid or pre-proposal meetings, advise CNM and the Design Professional about bidding or proposals, evaluate
submissions by responsible bidders and offerors, and enter into subcontracts for the execution of the Work.
The CMAR shall manage and superintend the Work.
The CMAR shall assist CNM and the Design Professional by providing the documentation required for the submittal to the US
Green Building Council for LEED Silver Certification.
The CMAR will cooperate with the Owner’s Commissioning Agent, providing manpower and technical assistance as required to
ensure that the facility systems are commissioned and in full operation at substantial completion.
The CMAR shall complete all punchlist work and project documentation and expeditiously address any issues that arise during
the Warranty period.
This is a construction manager at risk project, pursuant the Educational Facility Construction Manager at Risk Act (§13-1-124.1
through 13-1-124.5 NMSA 1978).
CNM has chosen to attain a LEED® Silver certification or higher for this project within the available funding and standards. The
CMAR will be expected to participate with CNM and the Design Professional in ensuring that all LEED® criteria is maximized in
every aspect of this project while ensuring that building costs are maintained within budget.
The Maximum Allowable Construction Cost (MACC) for this project is $6,930,000.
NMSA Governing Information
This Request for Proposal (RFP) is governed by the following which are all-inclusive by reference: A new section of the Procurement
Code, Construction Manager at Risk Section 13-1-124.1 through 13-1-124.5 NMSA 1978. In addition to the new section, 13-1-111,
13-1-119.1, 13-1-117.1 NMSA 1978 and the New Mexico Administrative Code (NMAC) 1.4.1 regulations of September 30, 2006 govern
this process. These documents are available for review upon request.
Purpose of this RFP
This Request for Proposals is Step 2 of the Three Step process where Project funds exceed $500,000. Step 1, Request for
Qualifications # P-366 dated June 9, 2014 preceded this RFP and qualified firms who responded to RFQ # P366 are being sent this
Request for Proposal (RFP). Once the Proposals are received and evaluated, the Selection Committee will proceed to Step 3,
Interviews of the Short-Listed Finalists. Scores for the Interviews will be added to the scores from the RFQ and the Proposals received
in response to this RFP and ranked to determine an overall Finalist for recommendation to the CNM Governing Board for the purpose
of entering into negotiations and execution of a final Contract for Construction Manager at Risk.
This Construction Manager at Risk Request for Proposals requires that the Qualified Firms carefully examine the contract documents
and conditions affecting the Work and be familiar with the site. The Offeror shall submit a fee/cost proposal that consists of the
Construction Manager at Risk Fee and Specified General Conditions (Form of Proposal included herein) to execute the Project.
This section of the RFP specifies general requirements and outlines and describes the major events of the selection process.
Listed below, as well, are the key action dates/times for this RFP. If CNM finds it necessary to change any of the dates as indicated
below, an addendum to the RFP will be posted on CNM’s Purchasing website under RFP # P-366. The website address is:
http://www.cnm.edu/depts/purchasing/request-for-proposals. CNM will make the attempt to send to all prospective proposers via
fax or email all addenda/amendments, however it shall be the responsibility of all potential respondents to monitor CNM’s
Purchasing website for any addenda/amendment or other information regarding this RFP.
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Standard Terms and Conditions and General Requirements
CNM requires that all proposers agree to be bound by the terms of SECTION B: “Request for Proposals (RFP) Standard Terms
and Conditions” and SECTION C: “CNM General Terms and Conditions”.
Procurement Management

Procurement Manager - CNM has designated a procurement manager who is responsible for the conduct of this procurement
and whose name and contact information is listed in the below “Inquiries” section.

Deliveries - All deliveries should be addressed as follows:
Central New Mexico Community College
Purchasing Department – Building ‘A’, Room A109
525 Buena Vista Drive SE
Albuquerque, NM 87106

Inquiries - Any inquires or requests regarding this proposal and/or procurement should be submitted in WRITING in the
following manner. Interested firms may contact ONLY the procurement manager regarding this RFP and/or procurement.
Other CNM employees do not have the authority to respond on behalf of CNM.
J. Keith Adams
Senior Buyer
Purchasing Department
Central New Mexico Community College
525 Buena Vista Drive SE
Albuquerque, NM 87106
[email protected]
505.224.4546 office
505.224.4548 fax
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PART 2 – CONDITIONS GOVERNING THE PROPOSAL
Schedule of Events:

CNM evaluates SOQ’s submitted in response to Step 1 of this procurement
and sends RFP’s to qualified firms .................................................................. ……………………….July 14, 2014

Mandatory Pre-Proposal Conference (9:00 a.m. Mountain Time, Building ‘A’, Room A36)…..July 18, 2014

Question submission deadline (12:00 Noon Mountain Time) .......................... ……………………….July 23, 2014

Proposals Submission deadline (3:00 p.m. Mountain Time)……………………………….………July 29, 2014

CNM notifies three (3) most qualified firms……………………………………....................................August 4, 2014

Interviews (Times & Place TBD)…………………………………………………………………………..August 8, 2014

Action by CNM Capital Outlay Committee……………………………………………………………….August 18, 2014

Action by CNM Governing Board.………………………………………………………........................September 9, 2014

Contact apparent awardee and post awardee information on CNM website………........................September 10, 2014

Negotiate Preconstruction Services……………………………………………………………………...September 12, 2014

Contract Award……………………………………………………………………………........................September 26, 2014
NOTE: CNM reserves the right to amend and/or change this schedule of RFP/RFP activities, as it deems necessary under the
circumstances.
Explanation of Events
The following paragraphs describe the activities listed in the sequence of events shown in the above section.

Issue RFP - This RFP is issued by CNM in accordance with the provisions of Sections 13-1-124.1 - through 13-124.5 NMSA 1978.

RFP Amendments - Should any amendment to this RFP be deemed necessary between issuance of the RFP and the proposal
submission deadline, it will be posted to CNM’s Purchasing website as indicated above. CNM will make the attempt to send to
all prospective proposers via fax or email all addenda/amendments, however it shall be the responsibility of all potential
respondents to monitor CNM’s Purchasing website for any addenda/amendment or other information regarding this RFP/RFP.

Request for Proposals (RFP) – Firms asked to submit Proposals shall submit a proposal for Construction Manager at Risk Fee
and Specified General Conditions on a Form of Proposal provided in the RFP. The terms Construction Manager at Risk Fee and
Specified General Conditions are specifically defined in the Contract for Construction Manager at Risk, the Matrix of Cost Allocation
and the General Conditions of the Contract for Construction Manager at Risk found in Exhibit A of this Request for Proposals.

Mandatory Pre-Proposal Conference – Firms interested in submitting proposals in response to this RFP shall attend the
Pre-Proposal Conference. This will be the only opportunity proposers will have to speak with CNM regarding the RFP.

Questions/Clarifications - Between the time of issuance of the RFP and the question submission deadline, interested firms are
encouraged to send an e-mail to the Procurement Manager concerning any questions they might have about the scope of the
project, the terms and conditions of the RFP or the schedule for the RFP. Only written questions will be answered and all submitted
written questions and their answers will be summarized in the form of an Amendment to the RFP. Verbal questions/discussions
will have no binding effect. All Amendments, if any, will be posted on CNM’s Purchasing website for the benefit of all proposers.
It is the proposers’ responsibility to monitor CNM’s Purchasing Website for any Amendments made to the RFP. Respondents
shall acknowledge receipt of all amendments/addenda to this Request for Proposals (RFP) by identifying the
amendment/addendum number and date in the space provided on the form labeled “Signature of Firm’s Authorized
Representative” found in Section E.
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
Proposals received after the Submission Deadline will be deemed non-responsive. Proposals will be reviewed for
completeness and compliance with requirements by the Senior Buyer for Purchasing and the Selection Committee. If any Proposal
submitted is deemed non-responsible or non-responsive, the Offeror will be notified in writing of such determination.

Determination of Most Qualified Firms. After evaluating the Statements of Qualifications received in response to the Request
for Qualifications No. P-366 dated June 9, 2014, and after receiving and scoring the Proposals for CM at Risk Fee and
Specified General Conditions received in response to this RFP, the Selection Committee will invite up to three of the highest
ranking Offerors for interviews.

Interviews with Finalists – Notices will be sent to the three highest ranking Offerors. Those notices to finalists will include the
interview date and time, location where the interviews will be held and will provide them with a list of questions to be addressed
by their project teams during the interviews. All short-listed firms will be sent the same questions to address. Interviews will be
approximately one hour in duration and will be held at the CNM Campus.

Final Selection -The Selection Committee will recommend the firm it believes is most qualified based solely upon its review of the
statements of qualifications, proposals, presentations and the responses to the questions posed to the firms in the interview. The
CNM Governing Board will make the final selection.

Notice of Selection. The most qualified firm will be notified and sent a Request for Proposal for Preconstruction Services.

Contract Negotiations – CNM and the most qualified firm will begin contract negotiations as soon as possible after notice of
selection. The CNM Contract for Construction Manager at Risk and General Conditions are included in this Request for Proposals
as Exhibit A. If CNM is unable to negotiate a contract with the most qualified firm that it believes, in its sole discretion, is fair and
reasonable, it will terminate negotiations with that firm and begin negotiations with the next highest ranked firm.

Notice of Award - The Procurement Manager will notify finalists in writing of the final award within fifteen calendar days of the
award in accordance with NMSA 13-1-124.4.
Insurance, Bonding and other Special Conditions
The following are special conditions that must be met by the proposer in undertaking this contract. The proposers must indicate
in their proposal and provide evidence that they will be able to meet the stipulated conditions.
Proposal Guarantee – Firms that are selected to submit a proposal for Construction Manager at Risk Fee and Specified General
Conditions shall furnish a Request for Proposal Bond in the amount of five (5) percent of the MACC as required by Section 13-1146 NMSA 1978.
Proposal Acceptance – Proposals for CMAR Fee and Specified General Conditions shall remain in force for 120 calendar days
from the date of submission, or longer if CNM and the Proposer jointly agree.
Insurance Coverages - The selected firm shall submit a Certificate of Insurance satisfying the requirements of Article 11 of the
General Conditions of the Contract for Construction Manager at Risk as a condition precedent to award of the Contract for
Construction Manager at Risk.
Payment and Performance Bond – The selected shall submit Payment and Performance Bonds satisfying the requirements of
Article 11.5 of the General Conditions of the Contract for Construction Manager at Risk as a condition precedent to establishing
a Guaranteed Maximum Price for the Contract for Construction Manager at Risk.
Each contract of insurance required shall remain in effect for the entire term of the contract clauses to the effect that the same
may not be reduced or canceled on less than forty-five (45) days prior written notice to CNM. Commercial General Liability and
Page 10 of 128
Auto liability policies required hereunder shall name the Governing Board of CNM, CNM, its agents, servants and employees as
additional insured. Coverage shall be primary. All insurance required under this section shall be with companies acceptable to
CNM. Stated minimums shall not be interpreted as limiting the contractor’s insurance coverage.
Contract Compliance Monitoring: The purchasing office and the Director of Facilities shall monitor the successful proposer’s
compliance with, and performance under, the terms and conditions of the contract resulting from this procurement. The successful
proposer shall make available for inspection and/or copying by CNM, within 24 hours of a written request therefore, all records
and accounts relating to the work performed or the services provided in this project.
Personnel Conduct/Compliance: Any personnel executing services under this project while on the CNM premises will conduct
themselves in an acceptable, appropriate manner, and comply with all conduct and compliance policies and procedures of CNM.
CNM reserves the right to request immediate removal of any personnel it deems, in its sole discretion, to be exhibiting
inappropriate behavior not in compliance with CNM policies and procedures.
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PART 3 - RESPONSE FORMAT AND ORGANIZATION
Number of Responses
Only one Proposal shall be submitted by each individual entity in response to this RFP.
Number of Originals and Copies
Proposer shall provide one (1) original signed and executed copy of its Proposal.
Proposals
Offerors are requested to submit three (3) proposal figures on the Proposal Form attached as ATTACHMENT A to this Request
for Proposals.
The first figure shall be for the “Percent Fee” and the second figure shall be the product of the “Per Cent Fee” and the estimated
Cost of the Work for the Main Campus Building “A” Renovation Project. The estimated Cost of the Work is printed on the Form of
Proposal. DO NOT ALTER THE ESTIMATED COST OF THE WORK. The third figure shall be the lump sum amount for the
“Specified General Conditions Work”. The terms “Percent Fee” and Specified General Conditions Work” are defined in the
Contract for Construction Manager at Risk, the Matrix of Cost Allocation, and the General Conditions for Contract for Construction
Manager at Risk found in SECTION C to this RFP.
It is noted that the Contract for Construction Manager at Risk provides Offerors with critical information including: the
amount of liquidated damages; the duration of construction; the anticipated date of the Notice to Proceed; the allowance
for Preconstruction Services; and the upper limit for MACC Contingency.
Offerors shall comply with the following instructions in preparing the Proposal Form:
In completing the Proposal, the Offeror must enter a number for both the Percent Fee and for the Specified General Conditions
Work and determine the single number for CMAR Fee. No other entries, modifications, or qualifications shall be made to the Form
of Proposal. Failure to comply in full with these requirements shall be grounds for the Proposal to be declared non-responsive.
The Owner reserves the right to reject any or all Proposals and to waive informalities or non-material irregularities in the Proposal
received.
The name, address, New Mexico State Contractor’s license number, Contractor’s Labor Enforcement Fund registration number,
Contractor’s New Mexico Gross Receipts Tax number, Contractor’s Federal Employee Identification number shall be printed or
typed in the spaces provided on the Proposal Form.
Proposals must be submitted on the forms furnished in this Request for Proposals or on copies of these Forms and manually
signed in ink. The person signing the proposal must initial each page. Only the amounts and information asked for on the
Proposal Form furnished in the Request for Proposals will be considered. All blank spaces must be filled in with the information
requested.
Receipt of all addenda must be acknowledged by identifying the addendum number in the space provided in Form of Proposal.
Proposal Bond
Offeror shall furnish a proposal guarantee in the form of a firm commitment, such as a proposal bond or cashier’s check payable
to CNM, in the amount of at least five (5) percent of the MACC, $6,930,000.00 to be forfeited if the Offeror cannot provide
reasonable construction alternatives and design development information to the Owner and the Design Professional sufficient to
maintain the MACC and provide the project defined by Part 1 of the Request for Proposals.
Page 12 of 128
SECTION B: RFP STANDARD PROPOSAL TERMS AND CONDITIONS
1. ACCEPTANCE. Services – Right to reject; specifications.
All services furnished will be subject to inspection and testing by buyer and buyer’s agents. Any services
found by buyer in its sole discretion to be not in accordance with the specifications, drawings, plans,
instructions, performance criteria, samples or other description furnished or adopted by buyer for the order
or otherwise not in conformance with the terms of the order shall be subject to rejection, return and back
charge as appropriate. Buyer’s payment of all or any part of the purchase price prior to such inspection,
testing and non-acceptance of the services involved shall not constitute a waiver of any of buyer’s rights
hereunder.
2. ACKNOWLEDGMENT OF AMENDMENT / ADDENDUM. Vendors shall acknowledge receipt of any
amendments/addenda to this Request for Proposals (RFP) by identifying the amendment/addendum
number and date in the space provided on the form labeled “Signature of Firm’s Authorized
Representative” found in Section E.
3. ADDRESSES FOR NOTICES.
Copies of Addenda/Amendments will be made available for inspection wherever Request for Proposals are
on file for that purpose. No Addenda/Amendment may be issued later than five (5) days prior to the date for
receipt of Proposals, except an Addendum withdrawing the Request for Proposals or one which provides
notice of postponement of the date or time for receipt of Proposals. Any notice required to be given or which
may be given under this Request for Proposals or the resultant Contract shall be in writing and delivered in
person or via first class mail to Central New Mexico Community College, Purchasing Department, 525 Buena
Vista SE, Albuquerque, NM 87106.
4. ATTORNEY’S FEES. If any action resulting from this RFP is brought against CNM, such action shall be brought
in the County of Bernalillo, State of New Mexico. If CNM prevails, CNM shall be entitled to reasonable
attorney’s fees. The law of the State of New Mexico shall govern these matters.
5. AUTHORITY TO BIND CNM. Offeror shall not have the authority to enter into any contracts binding upon
CNM or to create any obligations on the part of CNM, except such as shall be specifically authorized by the
CNM representative, acting pursuant to authority granted by CNM.
6. AWARD OF PROPOSALS. See Part 4 of the Request for Qualifications for a description of the process for award
of the Contract for Construction Manager at Risk.
7. BRIBES, GRATUITIES AND KICK-BACKS. Pursuant to §13-1-191 NMSA 1978, reference is hereby made to the
criminal laws of New Mexico (including § 30-14-1, § 30-24-2, and § 30-41-1 through § 30-41-3 NMSA 1978)
which prohibits bribes, kickbacks, and gratuities, violation of which constitutes a felony. Further, the
Procurement Code (§ 13-1-28 through § 13-1-199 NMSA 1978) imposes civil and criminal penalties for its
violation.
8. CNM’S RESPONSIBILITIES. CNM shall designate a Representative to act on its behalf as Project Manager for
the project. The Representative shall have limited authority to give general direction to the Construction
Manager at Risk, answer questions, to approve pay applications, and initiate the change order process.
CNM’s Purchasing Director or the Director’s designee shall administer the resultant contract and shall have
the authority to 1) modify or interpret the Contract, 2) to authorize the Construction Manager at Risk to
perform additional services or 3) to approve change orders, all of which are decisions which are reserved
to be made by CNM’s Purchasing Director. No action, representation, or conduct by any CNM’s
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Representative shall relieve the Construction Manager at Risk of its responsibilities to carry out its duties
and obligations under the resultant agreement.
9. CNM’S RIGHTS TO ACCEPT/REJECT STATEMENTS OF QUALIFCATIONS. CNM reserves the right to accept
and/or reject, at its sole discretion, any or all Proposals or parts thereof, to waive technicalities, or to readvertise the project, when the best interests of CNM will be realized thereby.
10. CANCELLATION. CNM reserves the right to cancel without penalty this Request for Proposals (RFP) and the
resultant Contract for Construction Manager at Risk or any portion thereof for unsatisfactory performance,
unavailability of funds, or when it is in the best interest of CNM.
11. CHANGE IN CONTRACTOR REPRESENTATIVES. CNM reserves the right to request a change in contractor
representatives if the assigned representatives are not, in the opinion of CNM, meeting its needs
adequately.
12. CHANGES/ALTERATIONS AFTER AWARD. Changes or alterations after the award can only be made if agreed
to in writing by CNM.
13. COPIES OF REQUEST FOR PROPOSALS.
A complete set of the Request for Proposals and all Exhibits may be obtained from CNM’s Purchasing
website under P-366 at: http://www.cnm.edu/depts/purchasing/request-for-proposals. Copies may also
be obtained at the CNM Purchasing Department located on the Main Campus at 525 Buena Vista SE, A
Building, Room #A109, Albuquerque, New Mexico 87106. A complete set of the Request for Proposals shall
be used by the Offeror in preparing and submitting Proposals; CNM assumes no responsibility for errors or
misinterpretations resulting from the use of an incomplete set of the Request for Proposals. CNM in making
copies of Request for Proposals available on the above terms, does so only for the Purpose of obtaining
proposals on the Project and does not confer a license or grant for any other use. A complete copy of the
Request for Proposals shall be made available for public inspection and shall be posted at the CNM
Purchasing Department website at the website noted above.
14. CONFIDENTIALITY. Any information provided to or developed by the Vendor in the performance of the
resultant agreement shall be kept confidential and shall not be made available to any other individual or
organization by the Vendor without prior written approval of CNM.
15. CONSTRUCTION RECORD DRAWINGS. The successful Vendor will be required to provide CNM, upon
completion of the work, three (3) sets of record drawing(s) showing any changes from the contract drawings
(especially electrical, plumbing, utility lines, etc.) added or affected by the work the Vendor has performed,
unless provisions for pre-approval of drawings is contained elsewhere in this Request for Proposals (RFP).
All computer software drawings shall become property of CNM.
16. CONTRACT. The Contract for Construction Manager at Risk and the General Conditions for the Contract for
Construction Manager at Risk, the Matrix of Cost Allocation attached to this RFP as Exhibit A. shall be
considered the binding agreement/contract. In the event of any inconsistent or incompatible provisions,
the General Conditions of the Contract for Construction Manager at Risk shall take precedence, followed
by the Contract for Construction Manager at Risk, the Matrix of Cost Allocation, the provisions of the
Request for Proposals, and then lastly, the terms of the Vendor’s response to this RFP.
17. CORRECTION OR WITHDRAWAL OF PROPOSALS.
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A Proposal containing a mistake discovered before proposal opening may be modified or withdrawn by an
Offeror prior to the time set for proposal opening by delivering written or telegraphic notice to the location
designated in the Request for Proposals as the place where proposals are to be received. A withdrawn
proposal may be resubmitted up to the time and date designated for the receipt of proposals, provided it
is then fully in conformance with the Request for Proposals. Only modifications received prior to the time
specified for the closing will be accepted. No modifications will be accepted following the opening.
Technical clarifications of the offer may be requested by the Buyer following the opening.
18. DEBARRED OR SUSPENDED VENDORS. A business (contractor, subcontractor or supplier) that has either
been debarred or suspended pursuant to the requirements of § 13-1-177 through § 13-1-180, and § 13-311 through § 13-4-17 NMSA 1978 as amended, shall not be permitted to do business with CNM and shall
not be considered for award of the contract during the period for which it is debarred or suspended with
CNM.
19. VENDOR SCHEDULE REQUIRED. Not applicable to this Request for Proposals.
20. DELIVERY DELAYS. If after award the Vendor becomes aware of possible problems that could result in delay
in the agreed-to delivery schedule, the Vendor must immediately notify the Buyer or the designated
representative. The initial notification of the delay may be verbal with a written confirmation, giving the
probable cause and effect, with recommendations for alternate action. Nothing in this paragraph will be
interpreted as relieving the vendor of his/her contractual obligations. However, failure to notify CNM
promptly will be a basis for determining vendor responsibility in an otherwise excusable delay.
21. DISCREPANCIES. Should any interested vendor find discrepancies in any part of the listed specifications or
the terms and conditions, or find any part of the listed specification or the terms and conditions to be
incomplete or otherwise questionable in any respect, such vendor shall immediately call such matters to the
attention of the Buyer, in writing, prior to the established opening date.
22. EMPLOYEE CERTIFICATION. The vendor and all vendor’s employees utilized on the work to be performed
under this Request for Proposals must have the proper certification(s) and license(s) to comply with State
and local requirements connected to this Request for Proposals. The Vendor shall use only fully qualified
and approved trades persons and service technicians to perform inspections, service, construction and or
repairs under this Request for Proposals. The Vendor shall acquire and retain all pertinent wage rates and
shall make them available to CNM.
23. EMPLOYMENT OF CONSULTANTS AND SUBCONTRACTORS.
Offeror agrees to employ competent and New Mexico licensed and registered consultants, subcontractors
and other professionals for the project, as might be necessary for the proper construction/demolition of
the project. Offeror represents that the performance of any consultant or subcontractor assigned by
Offeror to work on the project shall be in accordance with sound professional standards, and the
requirements of the resultant contract. The Offeror shall list and state the qualifications for each Consultant
or Sub-contractor the Offeror proposes to use for all consultants and subcontracted Work. The Offeror is
specifically advised that any person or other party, to whom it is proposed to engage as a consultant or subcontractor under this proposal, must be acceptable to CNM after verification by CNM of the current
eligibility status, including but not limited to suspension or debarment by CNM. Any work to be performed
by a consultant or sub-contractor by the successful Offeror shall require the prior written approval of CNM.
All sub-contractors must be registered with the Labor and Industrial Division of the New Mexico
Department of Labor (DOL).
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24. ENTIRE AGREEMENT. CNM’S PURCHASE ORDER AND OTHER ATTACHED CONTRACT DOCUMENTS
INCLUDING ATTACHMENTS AND ADDENDUMS ISSUED BY CNM, THIS RFP, THE CONSTRUCTION MANAGER
AT RISK’S (CMAR) PROPOSAL FOR CMAR FEE AND SPECIFIED GENERAL CONDITIONS, THE CONTRACT FOR
CONSTRUCTION MANAGER AT RISK, THE MATRIX OF COST ALLOCATION, THE GENERAL CONDITIONS OF THE
CONTRACT FOR CONSTRUCTION MANAGER AT RISK AND THE GUARANTEED MAXIMUM PRICE
AMENDMENT CONSTITUTES THE CONTRACT AGREEMENT BETWEEN THE PARTIES. This Proposal along with
its attachments will be considered to be part of the resultant price agreement with purchase order and
other contract documents are to be incorporated by reference.
25. ERRORS. CNM is not liable for any errors or misinterpretations made by the vendor responding to this Request
for Proposals. No advantage shall be taken by Vendors in the omission of any details. Any misstatements
of fact, misrepresentations or errors in the Vendor’s proposal may, at the sole discretion of CNM, be cause
for disqualification. Each vendor is responsible for ensuring that all information provided in its proposal is
accurate and complete in its entirety.
26. EVALUATION AND SELECTION PROCESS. See Part 4 of the Request for Qualifications (Step 1 of this
procurement) where the three-step Construction Manager at Risk Evaluation and Selection Process is
described.
27. EXCLUSIVE RIGHTS. Under no circumstances shall this Agreement be construed or deemed to be a contract
whereby CNM grants Vendor exclusive right to furnish CNM its needs or requirements for services described
herein.
28. FINANCIAL STATEMENTS. If requested, all bidders may be required to submit their most recent Income
Statement, Balance Sheet, and Statement of Cash Flows.
29. FORCE MAJEURE. Neither party to the resultant agreement will be liable to the other for any failure or
delay in performance under the resultant agreement due to circumstances beyond its reasonable control
including, but not limited to, acts of God, accidents, labor disputes, acts or omissions and defaults of third
parties, and official, government or judicial action not the result of negligence of the party failing or late in
performing.
30. GENERAL TERMS AND CONDITIONS. CNM’s General Terms and Conditions are an equal and integral part of
this Request for Proposals.
31. GOVERNING LAW. This Request for Proposals and all resultant price agreements shall be interpreted and
governed by the Laws of the State of New Mexico.
32. INDEMNIFICATION. Offeror agrees to indemnify, defend and hold harmless CNM, its officers and
employees against all liability, claims, damages, losses or expenses (including attorney’s fees) arising out of
bodily injury to persons or damage to property caused by, or resulting from, Offeror’s and/or its employees’,
Consultants, Subcontractors errors, acts, omissions or negligence. This hold-harmless and indemnification
clause is subject to the immunities, provisions and limitations of the New Mexico Tort Claims Act (Sections
41-4-1 et seq. N.M.S.A. 1972) and Section 56-7-1, N.M.S.A. 1978 and any amendments thereto. This
Agreement to Indemnify shall not extend to liability, claims, damages, losses or expenses, including attorney
fees, arising out of: The preparation or approval of maps, drawings, opinions, reports, surveys, designs or
specifications by the indemnitee, or the agents or employees of the indemnitee; or the giving or failure to
give directions or instructions by the indemnitee, or the agents or employees of the indemnitee, where the
giving or failure to give directions or instructions is the primary cause of bodily injury to persons or damage
to property.
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33. INSURANCE AND BONDING REQUIREMENTS. See Article 11 of the General Conditions of the Contract for
Construction Manager at Risk Part 2 of this Request for Proposals for the insurance and bonding
requirements.
34. INTERPRETATIONS. CNM is not liable for any errors or misinterpretations made by the offeror responding
to this RFP. No advantage shall be taken by Offerors in the omission of any details. Any misstatements of
fact, misrepresentations or errors in the Offeror’s proposal may, at the sole discretion of CNM, be cause for
disqualification. Offerors are responsible for ensuring that all information provided in the proposal
response is accurate and complete in its entirety. All questions about the meaning or intent of the Request
for Proposals shall be submitted in writing to the attention of the Buyer for this procurement. Replies will
be
issued
by
Addenda
that
will
be
posted
on
CNM’s
website:
http://www.cnm.edu/depts/purchasing/request-for-statements of qualifcations.
It is all Vendors’
responsibility to monitor this website for amendments/addenda to the RFP. Questions received after the
deadline for questions stated in the Schedule of Events in the Request for Proposals may not be answered.
Only questions answered by formal written addenda will be binding. Oral and other interpretations or
clarifications will be without legal effect. Offerors shall promptly notify CNM of any ambiguity,
inconsistency, or error, which they may discover upon examination of the Request for Proposals
35. RFP TERMS PART OF CONTRACT. This Request for Proposals along with its exhibits and attachments will be
considered to be part of the resultant price agreement and or purchase order and is to be incorporated by
reference.
36. LATE SUBMISSIONS. Late submissions of proposals will not be considered unless it is determined by CNM
that the late receipt was due solely to mishandling by CNM or if the proposal is the only one received. All
other late submissions will be returned unopened. The Offeror shall assume full responsibility for timely
delivery of proposals at the Procurement Officer office, including those proposals submitted by mail. Handdelivered proposals shall be submitted to the Purchasing Agent/Buyer or his Procurement Officer or his
designee and will be clocked in/time stamped at the time received, which must be prior to the time
specified. Oral, telephonic, or electronically submitted proposals are invalid and will not receive
consideration
37. MEDIATION. Notwithstanding any provision of any Contract Document to the contrary, any claim, dispute
or other matter in question between the Vendor and CNM and except to those which have been waived by
the making or acceptance of final payment shall be subject to mediation pursuant to and under the
provisions of the New Mexico Public Works Mediation Act, NMSA 1978 § 13 4C 1 et seq. as amended. A
party seeking to resolve a dispute under this Agreement or any of the Contract Documents shall proceed
under the procedures and provisions of the Public Works Mediation Act.
38. MODIFICATIONS. Only modifications received prior to the time specified for the closing will be accepted.
No modifications will be accepted following the opening. The Buyer may request technical clarifications of
the proposal following the opening.
39. NEGOTIATIONS. See Part 4 of the Request for Qualifications (Step 1 of this procurement).
40. NOTICE OF CONTRACT REQUIREMENTS BINDING ON OFFEROR. The Offerors’ attention is directed to all
applicable federal and state laws, local ordinances and regulations and the rules and regulations of all
authorities having jurisdiction over the services of the Project. In submitting a proposal, the Offeror
represents that it has familiarized itself with the nature and extent of the federal, state and local
requirements, which are a part of this Request for Proposals. Offeror agrees to be bound by and abide by
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and perform any and all of its duties, obligations and responsibilities awarded in response to this Request
for Proposals in strict accordance with the ethics of its profession and all federal and state municipal laws,
regulations, and ordinances regulating construction. Offeror agrees to perform all work and services
awarded as a result of this Request for Proposals in accordance with highest standards of Professional care.
The Offeror agrees to cooperate with CNM and other contractors and coordinate work involving other
contractors through CNM’s authorized representative.
41. OFFEROR’S TERMS AND CONDITIONS. Not applicable.
42. OWNERSHIP OF MATERIAL. Any and all data, material, documentation, notes, drawings, design,
specifications and other work prepared by, developed or performed by the Offeror in conjunction with a
resultant award of an agreement to this RFP shall and will become the property of and belong exclusively
to CNM. Before receiving final payment, the successful Offeror shall be required to deliver to CNM the
original construction documents and details and a bound volume of the specifications. CNM shall not have
the right to use the construction documents for other building projects except as may be required for
reference without the successful Offeror’s consent. CNM shall not have the right to sell the construction
documents, drawings and specifications. The successful Offeror shall not be permitted to reuse the
drawings developed for the project identified within this RFP in whole or in part for other projects without
obtaining CNM’s prior written permission.
43. PAYMENT DISCOUNTS. CNM will take advantage of payment discounts offered whenever possible;
however, payment discounts will not be used as a means to determine the highest evaluated offer.
44. PERIOD FOR PROPOSAL ACCEPTANCE. This Request for Proposals is Step 2 of a three Step Selection
Procedure. The period for proposal acceptance will be stated in the Request for Proposals.
45. PROPOSAL EVALUATION. Proposals shall be evaluated in the manner stated in Part 4 of the Request for
Qualifications (Step 1 of this Procurement). CNM shall have the right to waive technical irregularities in the
form of the Proposal of the Offeror, which do not alter the price, quality or quantity of the services,
construction or items of tangible personal property offered.
46. PROPOSAL OPENING. Proposals will be opened on the due date and time specified on the proposal cover
sheet in the Purchasing Department Office. This is not a public opening and Vendors are not invited to
attend.
47. PROTESTS. Any Offeror who is aggrieved in connection with a solicitation or award of an Agreement may
protest to CNM’s Buyer for the procurement and the CNM Director for Purchasing in accordance with the
requirements of CNM’s Procurement Regulations and the state Procurement Code. The protest should be
made in writing within 24 hours after the facts or occurrences giving rise thereto, but in no case later than
15 calendar days after the facts or occurrences giving rise thereto.
In the event of a timely protest under this section, CNM shall not proceed further with the procurement
unless CNM makes a determination that the award of Agreement is necessary to protect substantial
interests of CNM. The Director of Purchasing or designee shall have the authority to take any action
reasonably necessary to resolve a protest of an aggrieved Offeror concerning procurement. This authority
shall be exercised in accordance with adopted regulations, but shall not include the authority to award
money damages or attorneys’ fees (§ 13-1-174 NMSA 1978).
The Director of Purchasing or designee shall promptly issue a determination relating to the protest. The
determination shall:
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1) state the reasons for the action taken; and
2) inform the protestant of the right to judicial review of the determination pursuant to § 13-1-183
NMSA 1978.
A copy of the determination issued under § 13-1-175 NMSA 1978 shall immediately be mailed to the
protestant and their Offerors involved in the procurement (§ 13-1-178 NMSA 1978).
48. PROPOSER QUALIFICATIONS. The selection committee may make such investigations as necessary to
determine the ability of the proposer to adhere to the requirements specified within this RFP. The selection
committee will reject the proposal of any proposer who is not a responsible proposer or fails to submit a
responsive offer, as defined in § 13-1-83 and 13-1-85 NMSA 1978.
49. PUBLIC INFORMATION. All information, except that marked as confidential, will become public information
at the time that the Contract for Construction Manager at Risk is awarded. Confidential information must
be marked “CONFIDENTIAL” in red letters in the upper right hand corner of the sheets containing the
confidential information. Price and information concerning the specifications cannot be considered
confidential.
50. RECORDS AND AUDIT. The successful Offeror shall be required to maintain detailed time records that show
the date, time and nature of services rendered. These records shall be subject to inspection by CNM, its
representatives, and the State Auditor. CNM, its representatives, and the State Auditor shall have the right
to audit billings both before and after payment. Payment under this Contract shall not foreclose the right
of CNM to recover excessive and/or illegal payments. CNM, its representatives and the State Auditor shall
have access to and the right to examine and/or audit any directly pertinent records, books, documents and
papers of the successful Offeror involving transactions related to any Contract entered into as a result of
this RFP for a period of three (3) years after final payment.
51. REFERENCES. Vendor shall furnish the minimum number of references requested herein. Failure to submit
the information may result in your proposal being considered non-responsive. Vendor, by furnishing these
references, agrees to allow CNM to contact any person or organization listed, and to utilize information
obtained in the evaluation of the offer. At its own discretion, CNM may choose to contact other references
as it deems necessary.
52. RELEASES. Upon final payment of the amount due under the terms of the resultant Contract, the successful
vendor shall release CNM, its Governing Board, officers and employees from all liabilities, claims and
obligations arising from or under the terms of the resultant agreement. The successful vendor agrees not to
purport to bind CNM to any obligation not assumed herein by CNM unless CNM has expressly authorized the
successful vendor to do so and then only within the strict limits of that authority.
53. REPORTS AND INFORMATION. At such times and in such forms as CNM may require, there shall be furnished
to CNM such statements, records, reports, data and information, as CNM may request pertaining to matters
covered by all resultant agreements to this Request for Proposals.
54. RESPONSIBLE OFFEROR. All work shall be under the direction of the applicable Construction Manager at
Risk legally licensed by the state of New Mexico. The Vendor and all Vendor’s employees and
subcontractor’s and subcontractor’s employees utilized on the work to be performed under this Request
for Proposals must have the proper certification(s) and license(s) to comply with all Federal, State and local
requirements connected to this RFP. The Vendor shall use only fully qualified and approved service
technicians to perform inspections and services under this Proposal. CNM reserves the right to conduct
any investigations deemed necessary to determine the responsibility of a vendor (i.e., prove that its
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financial resources, production or service facilities, personnel, service reputation and experience are
adequate to make satisfactory delivery of the services, construction or items of tangible personal property
described in the Request for Proposals). Vendor shall provide audited financial statements if requested by
CNM.
OFFEROR’S QUALIFICATION STATEMENT. Offeror to whom award of a Contract is under consideration shall
submit, upon request, information and data to prove that their financial resources, production or service
facilities, personnel, and service reputation and experience are adequate to make satisfactory delivery of
the services described in the Request for Proposals. Offer shall provide audited financial statements if
requested by CNM. If an Offeror who otherwise would have been awarded a contract is found not to be a
responsible Offeror; a Determination that the Offeror is not a responsible Offeror, setting forth the basis of
the finding, shall be prepared by the CNM Buyer. The unreasonable failure of the Offeror to promptly
supply information in connection with an inquiry with respect to responsibility is grounds for a
determination that the Offeror is not a responsible Offeror. Vendors, which have not been selected, shall
be so notified in writing within twenty-one days after an award is made through a posting to the CNM
website
55. RESPONSIVENESS OF PROPOSALS. Vendors are hereby expressly instructed that all proposals submitted in
response to this solicitation shall meet all specifications and requirements of this solicitation.
56. SCHEDULE DELAYS. If after award the Vendor becomes aware of possible problems that could result in
delay in completion of the work on the agreed-to schedule, the Vendor must immediately notify the Buyer
or the designated representative. The initial notification of the delay may be verbal with a written
confirmation submitted in accordance with Article 4.3 of the General Conditions, giving the probable cause
and effect, with recommendations for alternate action. Nothing in this paragraph will be interpreted as
relieving the Vendor of its contractual obligations. However, failure to notify CNM promptly will be a basis
for determining the Vendor responsibility in an otherwise excusable delay
57. SEVERABILITY. If any provision of the resultant agreement is found invalid or unenforceable, the remainder
of the resultant price agreement will be enforced to the maximum extent permissible and the legality and
enforceability of the other provisions of the resultant agreement will not be affected.
58. SIGNATURE. The proposal must be signed by an authorized representative in order for the proposal to be
considered responsive. Compete and return the form labeled “Signature of Firm’s Authorized Representative”
(found in Section E) with the Proposal.
59. SITE FAMILIARITY. The Vendor shall be responsible for thoroughly inspecting the site and work to be done
prior to submitting an offer. The Vendor warrants by this submission that he/she has had the opportunity
to inspect the site and work to be done and that his/her offer includes all costs required to complete the
work. The failure of the Vendor to be fully informed regarding the requirements of this RFP will not
constitute grounds for any claim, demand for adjustment or the withdrawal of a bid after the opening.
60. SITE INSPECTION. The only opportunity for Offerors to visit the site will occur at the Mandatory PreProposal Conference.
61. STATE AND LOCAL ORDINANCES. The successful vendor shall perform work under the resultant Contract
strict accordance with the latest version of all State and local codes, ordinances, and regulations governing
the work involved. All materials and labor necessary to comply with the rules, regulations and ordinances
shall be provided by the vendor. Where the drawings and or specifications indicate materials or
construction in excess of the code requirements, the drawings and or specifications shall govern. The
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vendor shall be responsible for the final execution of the work to meet these requirements. In the event of
a conflict between various codes and standards, the more stringent shall apply.
62. STATUS OF VENDOR. The successful vendor is an independent contractor performing services for CNM and
neither he/she nor his/her agents or employees shall, as a result of the resultant agreement, accrue leave,
retirement, insurance, bonding authority, use of CNM vehicles, or any other benefits, prerequisites or
allowances normally afforded only to employees of CNM. The successful vendor acknowledges that all sums
received under the resultant agreement are personally reportable by him/her/her for income, selfemployment and other applicable taxes.
63. SUBCONTRACTORS. Any work subcontracted by the successful vendor shall require the prior written approval
of the subcontractor by CNM.
DEFINITIONS. A Subcontractor is a person or entity who has a direct contract with the Vendor to perform a
portion of the Work at the site. The term “Subcontractor” is referred to throughout the Contract Documents
as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor.
The term “Subcontractor” does not include a separate contractor or subcontractors of a separate
contractor.
A 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 “Sub-subcontractor” is referred to throughout the
Contract Documents as if singular in number and means a Sub-subcontractor or an authorized
representative of the Sub-subcontractor.
AWARD OF SUBCONTRACTORS. All awards of subcontracts shall be in accordance with the New Mexico
Subcontractors Fair Practices Act as applicable.
64. SUBCONTRACTUAL RELATIONS. By appropriate agreement, written where legally required for validity, the
Vendor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor,
to be bound to the Vendor by terms of the Contract Documents, and to assume toward the Vendor all the
obligations and responsibilities, including the responsibility for safety of the Subcontractor’s Work, which
the Vendor, by these Documents, assumes toward CNM. Each subcontract agreement shall preserve and
protect the rights of CNM under the Contract Documents with respect to the Work to be performed by the
Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow to the
Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all rights,
remedies and redress against the Vendor that the Vendor, by the Contract Documents, has against CNM.
Where appropriate, the Vendor shall require each Subcontractor to enter into similar agreements with Subsubcontractors. The Vendor shall make available to each proposed Subcontractor, prior to the execution of
the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound,
and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the
proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors
will similarly make copies of applicable portions of such documents available to their respective proposed
Sub-subcontractors.
65. SUBMISSIONS OF SAMPLES/DRAWINGS/LITERATURE. It may be necessary to test samples or have
demonstrations to make an award. All samples, when required, shall be furnished free of expense to CNM.
Returns shall only be made at the Bidder’s request and expense. Bid samples or descriptive literature
should not be submitted unless expressly requested; and, regardless of any attempt by a bidder to condition
the bid, unsolicited bid samples or descriptive literature shall be submitted at the Bidder’s risk.
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66. SUBMITTALS. Offerors are hereby expressly instructed that the proposal submitted in response to this
solicitation shall meet all specifications and requirements of this solicitation. Proposals shall be submitted
at the time and place indicated in the Notice of Request for Proposals and shall be included in an opaque
sealed envelope marked with the Project title and name and address of the Offeror and accompanied by
the documents listed in the Request for Proposals. The envelope shall be addressed to the Procurement
Officer/Buyer of CNM. The following information shall be provided on the front lower left corner of the Bid
envelope: Request for Proposals number, Project Title, date and time of opening. If the Proposal is sent by
mail, the sealed envelope shall have the notation “SEALED PROPOSAL ENCLOSED” on the face thereof. In
submitting a Proposal in response to this Request for Proposals, the Offeror represents that the Offeror is
familiarized with the nature and extent of the Request for Proposals dealing with federal, state, and local
requirements which are part of the Request for Proposals. The successful Offeror shall perform work under
the resultant contract in strict accordance with the latest version of all Federal, State and local codes, rules,
laws, ordinances, and regulations governing the work involved. All materials and labor necessary to comply
with the rules, regulations and ordinances shall be provided by the Vendor. The response must be signed
by an authorized representative in order for the Proposal to be considered responsive. Complete and return
the form labeled, SECTION E: “Signature of Firm’s Authorized Representative” with proposal response.
67. SUCCESSORS AND ASSIGNS. Vendor shall not assign the Contract as a whole without written consent of
Owner. If Vendor attempts to make such an assignment without such consent, Vendor shall nevertheless
remain legally responsible for all obligations under the Contract.
68. TAXES. CNM is exempt from Federal excise taxes and from New Mexico gross receipts taxes on materials,
except construction materials used by a contractor. Services are not exempt from gross receipts taxes.
Taxes, if any, on services must be included as a separate line item and not included in your base price
proposed. Applicable taxes are excluded from the evaluation of the proposal.
69. REBATES. Vendor is required to participate and work with any utility company to assist CNM in obtaining
any and all available rebates that may result from the Work under the RFP.
70. TECHNICALITIES. CNM reserves the right to waive minor irregularities. Also CNM reserves the right to waive
mandatory requirements provided that all of the otherwise responsive proposals failed to meet the
mandatory requirements and/or doing so does not otherwise materially affect the procurement. This right is
at the sole discretion of CNM.
71. ELECTRONIC/FACSIMILE SUBMITTALS. Electronic/Facsimile proposal submittals will not be considered.
72. TERMINATION. See the General Conditions of the Contract for Construction Manager at Risk.
73. WAGE RATES. Jobs with an estimate cost >$60,000 done under this RFP will be subject to the Public Works
Minimum Wage Act (13-4-11 through 13-4-17, NMSA, 1978 as amended) and per exhibit labeled “Wage
Act.” Minimum wages will be supplied at time of award or may be obtained from the State of New Mexico
Labor & Industrial Commission.
74. WAGE RATES AND PAYROLL SUBMITTALS. For all federally funded construction projects greater than
$2,000, the contractor and all subcontractors and their tiers shall deliver or mail legible copies of the
certified weekly payrolls for all costs/services invoiced for the project awarded resulting from this RFP to
the appropriate oversight agency and CNM’s purchasing department. The Contractor shall certify that all
payrolls submitted meet or exceed the applicable wage determination as shown in this RFP. Contractor
shall be responsible for the collection and submittal of all certified payrolls and shall retain a copy of all
payrolls for a period of 3 years from the completion of the project. A copy of all certified payrolls shall be
Page 22 of 128
sent weekly to CNM’s purchasing department. The Contractor shall be responsible for labeling each
submittal with the project name; payroll period; and contractor and/or subcontractor name; each
employee’s full name and social security number, address and zip code, birth date, sex and occupation,
time and day of when employees work week begins, hours worked each day, total hours worked each
workweek, basis on which employee wages are paid, regular hourly pay rate, total daily or weekly straighttime earnings, total overtime earnings for the workweek, all additions to or deductions from the employee’s
wages, date of payment and the pay period covered by the payment.
75. WARRANTIES. Seller warrants the goods and/or services furnished to be exactly as specified in this
Purchase Order, free from defects in Seller’s design, labor, materials and manufacture, and to be in
compliance with any drawings or specifications incorporated herein and with any samples furnished by
Seller. All applicable UCC warranties express and implied are incorporated herein.
76. WORKERS COMPENSATION. No workers compensation insurance has been or will be obtained by CNM
on account of Seller or its employees or agents. Seller shall comply with the workers compensation laws
with respect to Seller and Seller’s employees and agents.
77. WORKMANSHIP/COOPERATION. All work shall be done in a neat, workman-like manner using acceptable
equipment and methods. The Seller will cooperate with CNM and other contractors and coordinate their
work involving other contractors through CNM’s authorized representative.
78. The TERMS “must, shall, will, is required, or are required” identify a mandatory item or factor. Failure to
comply with such an item or factor may result in the rejection of the proposer’s proposal.
79. The TERMS “can, may, should, preferably, or prefers” identify a desirable or discretionary item or factor.
80. GRAMM-LEACH-BLILEY ACT. Pursuant to the Gramm-Leach-Bliley Act and the regulations set forth at 16
CFR Part 314, the Central New Mexico Community College (CNM) requires its Service Providers to
implement and maintain appropriate safeguards for the protection of Customer Information. Accordingly,
the Service Provider shall implement and maintain a comprehensive information security program that
contains administrative, technical and physical safeguards that reasonably and appropriately protect the
confidentiality, integrity, and availability of confidential Customer Information that it creates, receives,
maintains, or transmits on behalf of CNM. In addition, the Service Provider will require and ensure that any
of its agents, subcontractors, or sub-consultants, to which it provides confidential Customer Information of
CNM, implements appropriate security measures to protect confidential Customer Information of CNM.
Service Provider shall not use or disclose covered data and information received from or created on behalf
of CNM except as permitted or required by this Agreement, as required by law, or as otherwise authorized
in writing by CNM. Upon becoming aware of a security breach in which College Customer Information is
used or disclosed in a manner not authorized or covered by this Agreement, including any reasonable belief
that an unauthorized individual has accessed a database containing covered data and information, or in
violation of any applicable state or federal laws, Service Provider will report to CNM any security incident
immediately upon being aware of such a breach and take such corrective steps/action to remedy the breach
as requested by CNM and required by law.
Upon termination, cancellation, expiration or other conclusion of this Contract, Service Provider shall return
to CNM covered Customer Information and data unless CNM requests in writing that such Customer
Information and data be destroyed. Service Provider shall complete such return or destruction not less than
30 days after the conclusion of this Contract. Within such 30 day period, Service Provider shall certify in
Page 23 of 128
writing to CNM that such return or destruction has been completed. To the extent return or destruction is
not feasible; this Agreement shall remain in full force and effect.
Service Provider means any person or entity that receives, maintains, processes, or otherwise is permitted
access to Customer Information through its direct provision of services to a financial institution. The
Gramm-Leach-Bliley Act broadly defines “financial institution” as any institution engaging in the financial
activities enumerated under the Bank Holding Company Act of 1956, including “making, acquiring,
brokering, or servicing loans” and “collection agency services”. Because higher education institutions
participate in financial activities, such as processing student financial aid and student loans, FTC regulations
consider them financial institutions for purposes of the Gramm-Leach-Bliley Act.
Customer Information means any record containing nonpublic information as defined in 16 CFR 313.3(n),
about a customer of a Financial Institution, whether in paper, electronic or other form that CNM has
obtained from a customer in the process of offering a financial product or service including offering student
aid and loans to students as defined in 12 CFR 225.28. Any and all Customer Information provided by CNM
to the Service Provider or which the Service Provider acquires through its own efforts in rendering or
providing any goods or services under this Agreement, shall be considered confidential and held in strict
confidence and shall only be released to the Service Provider’s own personnel, agents, subcontractors and
sub-consultants only to the extent necessary to provide or perform the goods and/or services required by
this Agreement. Such information shall not be released by the Service Provider to any other person or
organization without the prior written consent and approval of CNM.
Page 24 of 128
SECTION C: GENERAL TERMS AND CONDITIONS
1. Inspection and Audit.
a. CNM may inspect, at any reasonable time, any part of Seller's plant or place of business which is related to
performance of this Purchase Order. Acceptance of delivery shall not be considered acceptance of the materials,
supplies or services furnished. Final inspection of product and services will be made at the destination. Any testing
or inspection procedures required by the specification are in addition to CNM's rights under this paragraph.
b. The Contractor shall maintain detailed time records which indicate the date, time and nature of services
rendered. Contractor shall maintain detailed records of all materials or supplies delivered to CNM under this
Purchase Order, including serial numbers and other appropriate identifiers. These records shall be subject to
internal and external audit. CNM shall have the right to audit billings both before and after payment. Payment
under the resultant Agreement shall not preclude CNM from recovering excessive, erroneous or illegal payments
previously made to the Contractor.
2. Warranties. Seller warrants the materials, supplies or services furnished to be exactly as specified in this order,
free from defects in Seller's design, labor, materials and manufacture, and to be in compliance with any drawings
or specifications incorporated herein and with any samples furnished by Seller. All applicable UCC warranties,
expressed and implied, are incorporated herein.
3. Acceptance and Rejection. If prior to final acceptance, any materials, supplies or service are found to be defective
or not as specified, or, if CNM is entitled to revoke acceptance of them, CNM may reject or revoke acceptance,
require Seller to correct without charge within a reasonable time, or require delivery at an equitable reduction in
price at CNM's option. Seller shall reimburse CNM for all incidental and consequential costs related to unaccepted
materials, supplies or service. Notwithstanding final acceptance and payment, Seller shall be liable for latent
defects, fraud, or such gross mistakes as amount to fraud. Acceptance of performance shall not waive CNM's right
to claim damages for breach.
4. Assignment. This order is assignable by CNM. Except as to any payment due hereunder, this order is not
assignable by Seller without written approval of CNM.
5. Changes. CNM may make changes within the general scope of this order by giving notice to Seller and
subsequently confirming such changes in writing. If such changes affect the cost of, or the time required for
performance of this order, an appropriate equitable adjustment shall be made. No change by Seller shall be
recognized without written approval of CNM. Any claim of Seller for an adjustment under this paragraph must be
made in writing within thirty (30) days from the date of receipt of Seller of notification of such change, unless CNM
waives this condition. Nothing in this paragraph shall excuse Seller from proceeding with performance of the order
as changed hereunder.
6. Termination and Delays. See the General Conditions of the Contract for Construction Manager at Risk.
7. Affirmative Action. Seller shall not discriminate with regard to hiring, termination or other incidents of
employment on the basis of race, sex, national origin, religion, age or handicap. Seller agrees to: a) adhere to the
principles set forth in Executive Order 11246 and 11375, and to undertake specifically to maintain employment
policies and practices that affirmatively promote equality of opportunity for handicapped persons, minority group
persons and women; b) take affirmative steps to hire and promote women and minority group persons at all job
levels and in all aspects of employment; c) communicate this policy in both English and Spanish to all persons
concerned within the company, with outside recruiting services and the minority community at large; d) provide
CNM on request a breakdown of labor force by ethnic group, sex, and job category; and e) discuss with CNM its
policies and practices relating to its affirmative action program.
Page 25 of 128
8. Indemnification and Insurance Seller assumes the entire responsibility and liability for losses, expenses,
damages, demands and claims in connection with or arising out of any actual or alleged personal injury (including
death) and/or damage or destruction to property sustained or alleged to have been sustained in connection with
or arising out of the performance of the work by Seller, its agents, employees, subcontractors or consultants, except
to the extent of liability arising out of the negligent performance of the work by or willful misconduct of CNM. In
any event, CNM's liability shall be subject to the limitations of the New Mexico Tort Claims Act. Seller shall
indemnify and hold harmless CNM, its officers, agents, and employees from any and all liability for such losses,
expenses, damages, demands, and claims and shall defend any suit or action brought against any or all of them
based on any actual or alleged personal injury or damage and shall pay any damage costs and expenses including
attorney’s fees, in connection with or resulting from such suit or action. Seller agrees that it and its subcontractors
will maintain public liability and property damage insurance in reasonable amounts covering the above obligation
and will maintain workers' compensation coverage covering all employees performing this order.
9. Patent and Copyright Indemnity. Seller shall pay all royalty and license fees relating to deliverables and other
items covered hereby. In the event any third party shall claim that the reproduction, manufacture, use, or sale of
goods or items covered hereby infringes any copyright, trademark, patent, or other intellectual property rights,
Seller shall indemnify and hold CNM harmless from any cost, expense, damage, or loss resulting therefrom.
10. Discounts. Any discount time will not begin until the materials, supplies, or services have been received and
accepted and correct invoice received by CNM's Purchasing Department. In the event testing is required, the
discount time shall begin upon the completion of the tests.
11. Penalties. The Procurement Code, Section 13-1-28 et seq., imposes civil and criminal penalties for its violation.
In addition, the New Mexico criminal statutes impose felony penalties for bribes, gratuities and kickbacks.
12. Title and Delivery. Title to the materials and supplies passed hereunder shall pass to CNM at the F.O.B. point
specified subject to the right of CNM to reject upon inspection. For any exception to the delivery date specified,
Seller shall give prior notification and obtain approval from CNM's Purchasing Department. Time is of the essence
and the order is subject to termination for failure to deliver on time.
13. Payment Charges. Late payment charges shall be paid in the amount and under the conditions stated in Section
13-1-158, NMSA 1978.
14. Other Applicable Laws. Any provision required to be included in a contract of this type by any applicable and
valid Executive order, federal, state or local law, ordinance, rule or regulation shall be deemed to be incorporated
herein.
15. OSHA Regulations. The contractor shall abide by Federal Occupational Safety and Health Administration (OSHA)
regulations and the State of New Mexico Environmental Improvement Board occupational health and safety
regulations that apply to the work performed under this Invitation. ALL PRODUCTS CONTAINING HAZARDOUS
SUBSTANCES MUST BE PROPERLY LABELED AND ACCOMPANIED BY MATERIAL SAFETY DATA SHEETS. The
contractor shall defend, indemnify and hold CNM free and harmless against any and all claims, loss, liability and
expense resulting from any alleged violations of said regulations including but not limited to fines, penalties,
judgments, court costs and attorney fees.
16. Debarment/Suspension. In performing the services and/or furnishing the goods specified within this purchase
order, the vendor/contractor certifies that it is not suspended, debarred or declared ineligible from entering into
contracts with the Executive Branch of the Federal Government, any State agency or local public body; nor is in
receipt of a notice of proposed debarment or suspension from the Executive Branch of the federal Government,
any State agency or local public body.
Page 26 of 128
17. Applicable Law. Each party acknowledges that the New Mexico Procurement Code, NMSA 1978 13-1-28
through -199, as amended, applies to every CNM purchase or contract agreement of tangible personal property,
services and construction, including participation made pursuant to this purchase order. Further, each party
acknowledges that it will be responsible for claims or damages arising from personal injury or damage to persons
or property to the extent they result from negligence of its employees or agents and that the liability of CNM shall
be subject in all cases to the immunities and limitation of the New Mexico Tort Claims Act, NMSA 1978 41-4-1
through -2 7, as amended.
SECTION 2:
GOVERNMENT SUBCONTRACT PROVISIONS
1.
If this order is subcontract under a U.S. Government Prime Contract, the applicable clauses listed below are
incorporated into, and form a part of, the terms and conditions of this order. In the event of any conflict between
the terms and condition of Section 2 and any other provisions of this order the terms and conditions of Section 2
shall prevail. The clauses contained in the following paragraphs of the Federal Acquisition Regulations are
incorporated herein by reference. For purposes of this Purchase Order, in the following clauses, the term "contract"
shall mean "this order", the term "contractor" shall mean "Seller" and the term "Government" and "Contracting
Officer" shall mean "Albuquerque CNM" and the "Director of Purchasing," respectively.
2.
The following provisions of the Federal Acquisition Regulations (FAR) apply regardless of the amount of
this order:
* Anti-kickback Procedures:
Buy American Act and Balance of Payments Program
* Contract Work Hours and Safety Standards Act-Overtime Comp.
* Equal Employment Opportunity
Integrity of Unit Prices
Notice to the Government of Labor Disputes
Preference for U.S. Flag Air Carriers (For internal air travel)
Restriction on Subcontractor Sales to the Government
Service Contract Act of 1965 (Reserved)
* Termination for Convenience of Government
(Education and other Nonprofit Institutions)
52.203-7
52.225-7001
52.222-4
52.222-26
52.215-26(a)(b)
52.222-1
52.247-63
52.203-6
52.222-41
52.249-5(a)(f)
CNM reserves all administrative, contractual, and legal remedies against Seller in case of any breaches of the
contract.
* On contracts funded by federal grants, only the Special Terms and Conditions clauses identified by the asterisk
(*) are incorporated into this contract.
Page 27 of 128
Section E
Signature of Firm’s Authorized Representative
USE THIS OFFICIAL FORM – DO NOT RECREATE OR USE ALTERNATIVES
ANY MODIFICATIONS TO THIS SECTION E, SIGNATURE OF FIRM’S AUTHORIZED REPRESENTATIVE RESPONSE FORM, OTHER THAN FILLING IN THE FORM FIELDS IS NOT ACCEPTABLE AND WILL RESULT IN
DISQUALIFICATION OF THE OFFEROR’S RESPONSE. THE GENERAL TERMS AND CONDITIONS ON THE REVERSE SIDE OF CNM’S PURCHASE ORDER ARE AN EQUAL AND INTEGRAL PART OF THIS REQUEST FOR
PROPOSALS (RFP) AND ARE NOTED IN SECTION C. THE TERMS, CONDITIONS AND SPECIFICATIONS CONTAINED IN THIS RFP ALONG WITH ANY ATTACHMENTS AND THE OFFEROR’S RESPONSE ARE HEREBY
INCORPORATED INTO ALL PURCHASE ORDERS ISSUED AS A RESULT OF THIS RFP, INCLUDING ANY ADDENDA. CNM RESERVES THE RIGHT TO NEGOTIATE WITH A SUCCESSFUL OFFEROR (CONTRACTOR)
PROVISIONS IN ADDITION TO THOSE STIPULATED IN THIS RFP. THE CONTENTS OF THIS RFP, AS REVISED AND/OR SUPPLEMENTED, AND THE SUCCESSFUL OFFEROR’S PROPOSAL WILL BE INCORPORATED INTO
THE CONTRACT. SHOULD AN OFFEROR OBJECT TO ANY OF THE CNM STANDARD TERMS AND CONDITIONS THAT OFFEROR MUST PROPOSE SPECIFIC ALTERNATIVE LANGUAGE THAT WOULD BE ACCEPTABLE
TO CNM. GENERAL REFERENCES TO THE OFFEROR’S TERMS AND CONDITIONS OR ATTEMPTS AT COMPLETE SUBSTITUTIONS ARE NOT ACCEPTABLE TO CNM AND WILL RESULT IN DISQUALIFICATION OF THE
OFFEROR’S PROPOSAL. OFFERORS MUST PROVIDE A BRIEF STATEMENT OF THE PURPOSE AND IMPACT, IF ANY, OF EACH PROPOSED CHANGE FOLLOWED BY THE SPECIFIC PROPOSED ALTERNATE WORDING.
By signing below, contractor acknowledges that it is a competent firm capable of providing the items and/or services requested, is properly
licensed for providing the items or services specified, has read this Request for Proposals, understands it, and agrees to be bound by its
terms and conditions. Contractor hereby agrees to furnish items and/or services, at the prices quoted, pursuant to all requirements and
specifications contained in this document, upon receipt of an authorized purchase order from the purchasing department, and further agree
that the language of this document shall govern in the event of a conflict with its proposal. The undersigned, being duly authorized to sign
bidding documents and act on behalf of the contractor in an official capacity, certifies that the items and/or services offered on this Request
for Proposal meets or exceeds all specifications, terms and conditions as described in this Request for Proposal without exceptions. I
understand that items and/or services not meeting all specifications, terms and conditions will be rejected and all costs shall be borne by
the contractor.
Please fill in all spaces below:
Legal Company Name
Address
City, State, Zip
Phone Number
FAX Number
Email
Contact Person for Clarification of Proposal Response
NM Tax ID
Federal Tax ID
Applicable NM License Numbers
ALL NEW MEXICO LICENSE NUMBERS LISTED HEREIN OR PURPORTED BY THE VENDOR MUST BE ISSUED IN THE OFFERING
FIRM’S LEGAL COMPANY NAME. LICENSE NUMBERS LISTED UNDER A NAME OTHER THAN THE LEGAL COMPANY NAME
MAY RENDER THE OFFER AS BEING NON-RESPONSIVE. NON-RESPONSIVE OFFERS WILL NOT BE CONSIDERED FOR AWARD.
OFFERORS WISHING TO RECEIVE THE RESIDENT BUSINESS PREFERENCE AS APPLICABLE PER NMSA 13-1-21 MUST SUBMIT
A VALID RESIDENT BUSINESS CERTIFICATE ISSUED BY NEW MEXICO TAX & REVENUE WITH THEIR SEALED RESPONSE.
OFFERORS WISHING TO RECEIVE THE RESIDENT VETERAN BUSINESS PREFERENCE AS APPLICABLE PER NMSA 13-1-22
MUST SUBMIT A VALID RESIDENT VETERAN CERTIFICATE ISSUED BY NEW MEXICO TAX & REVENUE WITH THEIR SEALED
RESPONSE.
Acknowledgment of Amendment/Addendum, Specify Number(s) and Date(s)
#
date
#
date
Signature of Member Authorized to Sign for Firm
#
date
#
date
#
date
Printed/Typed Name and Title of Individual Signing _____________________________________________________
Page 28 of 128
Exhibit A: Contract for Construction Manager at Risk
And The General Conditions of the Contract for
Construction Manager at Risk
CENTRAL NEW MEXICO community College
Contract for Construction Manager at risk
THIS CONTRACT IS BETWEEN:
OWNER:
The Governing Board of Central New Mexico Community College
And
Construction Manager at Risk:
(firm Name)
(herein referred to as "the CMAR"):
The Project is: Main Campus – Building “A” Renovation
The Architect is: NCA Architects
The Owner's Authorized Representative is:
J. Keith Adams, Senior Buyer, CNM Purchasing
Page 29 of 128
CENTRAL NEW MEXICO COMMUNITY COLLEGE
CONTRACT FOR CONSTRUCTION MANAGER AT RISK
(CMAR CONTRACT)
TABLE OF CONTENTS
ARTICLE
PAGE
1
Definitions
p. 1
2
Contract Documents
p. 3
3
Work of This Contract
p. 4
4
Relationship and Roles of the Parties
p. 9
5
Date of Commencement; Substantial and Final Completion
p. 10
6
Contract Sum and GMP
p. 11
7
Changes in the Work
p. 15
8
Cost of the Work
p. 16
9
Costs Excluded From Cost of Work
p. 18
10 Discounts, Rebates and Refunds
p. 18
11 Subcontracts and other Contracts
p. 19
12 Accounting Records
p. 22
13 Progress Payments
p. 22
14 Termination or Suspension
p. 23
15 Representations and Warranties
p. 24
16 Miscellaneous
p. 24
Exhibit A:
CNM General Conditions
p. 26
Exhibit B:
Form of GMP Amendment
p. 30
Attachment 1: Summary Matrix of Cost Allocation
p. 33
Page 30 of 128
The Owner and CMAR agree as set forth below:
ARTICLE 1
DEFINITIONS
Except as expressly defined or modified below or elsewhere in this Contract, all capitalized terms shall have
the meanings set forth in Article 1 of the Central New Mexico Community College General Conditions of the
Contract for Construction Manager at Risk (CNM General Conditions). The terms below are expressly
defined as follows:
1.1
Affiliate. Affiliate shall mean any subsidiary of CMAR, and any other entity in which CMAR has a
financial interest or which has a financial interest in CMAR (including without limitation parent companies,
related businesses under the same holding company, or any other business controlled by, under common
control with, or which controls CMAR).
1.2
Allowances. Allowances shall mean the allowance amounts shown in the GMP Supporting
Documents, together with such further allowances as may be developed by the parties as the Project
progresses.
1.3
Amendment. Amendment shall mean a written modification of this Contract (including without
limitation any agreed change to the GMP), identified as an Amendment, and executed by CMAR, the Owner’s
Authorized Representative, and, where required, approved in writing on behalf of Owner by Central New
Mexico Community College Director of Purchasing.
1.4
Business Days. Business Days shall mean every day except Saturday, Sunday, and legal holidays
recognized for employees of the State of New Mexico.
1.5
Change Order. Change Order shall mean a written modification of this Contract under Article 7 of
the CNM General Conditions (including without limitation any agreed change to GMP), identified as a Change
Order and executed by the Owner’s Authorized Representative, CMAR, where applicable, and, where
required, approved in writing by Santa Fe College Director of Purchasing.
1.6
CMAR Field Work. CMAR Field Work shall include general conditions not identified as Specified
General Conditions and may include such items as field offices for CMAR, Architect and CNM field staff,
customary layout, surveying, hoisting, safety enforcement, provisions of drinking water, toilet facilities,
temporary heat, temporary electricity, temporary water, trash removal, clean up, and portions of the Work of
a minor nature and not feasibly part of the subcontracted work due to: exclusions by the Subcontractor not
resolved through the process described in Article 11.3.3, undeveloped design owing to deviations in Work
performed or materials delivered by Subcontractors or suppliers that do not represent defective or
nonconforming work, a breach or failure to perform by the Subcontractor or supplier, complexity of
coordination of the Work, and other similar reasons typically providing cause for “pick-up” or GC Work under
industry standards; provided, however, that (i) the CMAR has reasonably determined that doing such portion
of the Work itself is in the best interests of Owner, (ii) such Work is identified as CMAR Field Work in monthly
billings and (iii) CMAR receives prior approval of Owner’s Authorized Representative as to the scope of such
CMAR Field Work.
1.7.1
CM Services. CM Services shall have the meaning given in Article 3.3 below.
Page 31 of 128
1.8
Construction Cost. The total cost to CNM for the construction and completion of all elements of the
project designed or specified by the Architect, including construction, site development costs (utilities,
infrastructure, landscaping, site improvements, demolition, etc.), and built in equipment, but excluding
professional fees, testing fees, CNM’s project contingency, acquisition costs or other administrative costs.
Construction Cost may include furniture, fixtures and equipment (“FF&E”) depending on whether the FF&E
is being provided as a part of the Contract for Construction Manager at Risk
1.9
Construction Documents. Construction Documents shall have the meaning given in the Agreement
between CNM and the Design Professional for this Project.
1.10
Construction Phase. The Construction Phase shall mean the period commencing on the Owner's
execution of a GMP Amendment or Early Work Amendment, together with the earlier of (i) issuance by Owner
of a Notice to Proceed with any on-site construction or (ii) execution of a subcontract or issuance of a
purchase order for materials or equipment required for the Work.
1.11 Construction Phase Services. Construction Phase Services shall mean all of the Work other than
the Preconstruction Phase Services.
1.12 Contract Documents. Contract Documents shall have the meaning given in Article 1 of the CNM
General Conditions.
1.13 Design Development Documents. Design Development Documents shall have the meaning given in
the CNM Agreement between the Owner and the Design Professional for this Project.
1.14 Early Work. Early Work shall mean Construction Phase Services authorized by Amendment that the
parties agree should be performed in advance of establishment of the GMP. Permissible Early Work shall
be limited to: early procurement of materials and supplies; early release of bid or proposal packages for site
development and related activities; and any other advance work related to critical components of the Project
for which performance prior to establishment of the GMP will materially affect the critical path schedule of the
Project.
1.15 Early Work Amendment. Early Work Amendment shall mean an Amendment to this Contract
executed by and between the parties to authorize Early Work.
1.16 Fixed Cost for Specified General Conditions Work. Fixed Cost for Specified General Conditions
Work or GC Work shall mean the fixed sum proposed by the CMAR for this work in its response to the
Request for Proposal..
1.17 Specified General Conditions Work. Specified General Conditions Work (“SGC Work”) shall mean
(i) that portion of the Work required to support construction operations that is not included within overhead or
general expense but is called out as SGC Work in the Summary Matrix of Cost Allocation, and (ii) any other
specific categories of Work approved in writing by the Owner’s Authorized Representative as forming a part
of the GC Work in Article 8.
1.18 Guaranteed Maximum Price (GMP). GMP shall mean the Guaranteed Maximum Price of this
Contract, as stated in dollars within the GMP Amendment, as determined in accordance with Article 6, and
as it may be adjusted from time to time pursuant to the provisions of this Contract.
Page 32 of 128
1.19 GMP Amendment. GMP Amendment shall mean an Amendment to this Contract, issued in the form
of Exhibit B and executed by and between the parties, to establish the GMP and identify the GMP Supporting
Documents for Construction Phase Services.
1.20 GMP Supporting Documents. GMP Supporting Documents shall mean the documents referenced
in the GMP Amendment as the basis for establishing the Guaranteed Maximum Price. The GMP Supporting
Documents shall expressly identify the Plans and Specifications, assumptions, qualifications, exclusions,
conditions, allowances, unit prices, and alternates that form the basis for the GMP.
1.21 Maximum Allowable Construction Cost (MACC). The total sum established by CNM as being
available for construction including the Preconstruction Fee, the Cost of the Work, the Construction Manager
at Risk Fee, and Specified General Conditions.
1.22 Preconstruction Phase. The Preconstruction Phase shall mean the period commencing on the date
of this Contract and ending upon commencement of the Construction Phase; provided that if the Owner and
CMAR agree, the Construction Phase may commence before the Preconstruction Phase is completed, in
which case both phases shall proceed concurrently, subject to the terms and conditions of the Contract
Documents.
1.23 Preconstruction Phase Services. Preconstruction Phase Services shall mean all services described
in Article 3.1, and any similar services described in the Request for Proposal for Preconstruction Services,
including such similar services as are described in the CMAR's Proposal for Preconstruction Services to the
extent they are accepted by Owner and included in the approved Preconstruction Work Plan, but excluding
any Early Work. Early Work shall be considered part of Construction Phase Services.
1.24 Schematic Design Documents. Schematic Design Documents shall have the meaning given in the
Agreement between CNM and the Design Professional for this Project.
1.25 Scope Change. Scope Change shall mean only (i) changed site conditions not reasonably inferable
from information available to CMAR at the time of execution of the GMP Amendment, and (ii) significant Work
modifications (including additions, substitutions, and deletions), application of Allowances, and selection of
alternates, all as approved by the Owner under this Contract beyond that identified or inferable from the GMP
Supporting Documents (but in the case of Allowance items, the GMP will increase only if the cost to Owner
of the Allowance items exceeds the total amount of the Allowances).
1.26 The Cost of the Work. The Cost of the Work is the estimated cost of the Work included in the GMP,
including CMAR Field Work and contractor’s contingency, but not including specified general conditions work,
preconstruction services or CMAR’s Fee.
ARTICLE 2
CONTRACT DOCUMENTS
2.1
Contract Documents. For valuable consideration as stated below, Owner and the CMAR agree to
the terms of the contract that are set forth in the Contract Documents.
Page 33 of 128
2.2
Effective Date. This CMAR Contract (hereafter the "Contract") shall become effective on the first
date on which every party has signed this Contract and Owner has received all necessary approvals,
including approval for legal sufficiency by CNM Counsel.
2.3
The Contract; Order of Precedence. This Contract, together with the other Contract Documents,
form the entire agreement between the parties. Except as expressly otherwise provided herein, the order of
precedence of the Contract Documents is established in Article 1.3.1 of the CNM General Conditions, if there
are inconsistent or conflicting terms among the Contract Documents.
ARTICLE 3
WORK OF THIS CONTRACT
3.1
Preconstruction Phase Services. The CMAR agrees to provide all of the Preconstruction Phase
Services described below on an ongoing basis in support of, and in conformance with, the time frames
described in the Request for Proposals. Commencement of the Construction Phase shall not excuse CMAR
from completion of the Preconstruction Phase Services, if such services have not been fully performed at
commencement of the Construction Phase
3.1.1 The CMAR shall provide a preliminary evaluation of the Owner’s program and Maximum Allowable
Construction Cost (MACC), each in terms of the other.
3.1.2
The CMAR shall provide the following services relating to design and construction tasks:
a) The CMAR shall consult with, advise, assist, and provide recommendations to the Owner and the
design team on all aspects of the planning and design of the Work.
b) The CMAR shall jointly schedule and attend regular meetings with the Architect and Owner’s
Authorized Representative. The CMAR shall consult with the Owner and Architect and Owner’s
Authorized Representative regarding site use and improvements, and the selection of materials, building
systems and equipment.
c) The CMAR shall provide recommendations on construction feasibility; actions designed to minimize
adverse effects of labor or material shortages; time requirements for procurement, installation and
construction completion; and factors related to construction cost including estimates of alternative
designs or materials, preliminary budgets and possible economies.
d) The CMAR shall review in-progress design documents, including the documents generally described
in the industry as Schematic Development Documents, Design Development Documents, and
Construction Documents and provide input and advice on construction feasibility, alternative materials,
and availability. CMAR shall review these completed Schematic Design Documents, Design
Development Documents, and Construction Documents utilizing BIM Technology and timely suggest
modifications to eliminate conflicts and improve completeness and clarity.
3.1.3
The CMAR shall provide the following services related to the Project schedule:
a) The CMAR shall prepare, and periodically update, a preliminary Project schedule for the Architect’s
and Owner’s Authorized Representative’s review and the Owner’s Authorized Representative’s approval.
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b) The CMAR shall coordinate and integrate the preliminary Project schedule with the services and
activities of the Owner, Architect, and CMAR. As design proceeds, CMAR shall update the preliminary
Project schedule to indicate proposed activity sequences and durations, milestone dates for receipt and
approval of pertinent information, submittal of a GMP proposal, preparation and processing of shop
drawings and samples, delivery of materials or equipment requiring long-lead time procurement, and
Owner’s occupancy requirements showing portions of the Project having occupancy priority, provided
that the date(s) of Substantial Completion shall not be modified without Owner’s prior written approval.
If preliminary Project schedule updates indicate that previously approved schedules may not be met, the
CMAR shall make appropriate recommendations to the Owner’s Authorized Representative and
Architect.
3.1.4 The CMAR shall make recommendations to Architect and Owner’s Authorized Representative
regarding the phased issuance of Plans and Specifications to facilitate Early Work or phased construction of
the Work, if such Early Work or phased construction is appropriate for the Project, taking into consideration
such factors as economics, time of performance, availability of labor and materials, and provisions for
temporary facilities.
3.1.5
The CMAR shall provide the following services relating to cost estimating:
a) The CMAR shall prepare, for the review of the Architect and Owner’s Authorized Representative and
approval of the Owner, a preliminary cost estimate utilizing area, volume or similar conceptual estimating
techniques.
b) When Schematic Design Documents have been prepared by the Architect and approved by the
Owner, the CMAR shall prepare for the review of the Architect and Owner’s Authorized Representative
and approval of the Owner, a more detailed estimate with supporting data in a format approved by the
Owner’s Authorized Representative. During the preparation of the Design Development Documents, the
CMAR shall update and refine this estimate at appropriate intervals agreed to by the Owner, Architect
and Owner’s Authorized Representative and CMAR.
c) When Design Development Documents have been prepared by the Architect and approved by the
Owner, the CMAR shall prepare a detailed estimate with supporting data in a format approved by the
Owner’s Authorized Representative for review by the Architect and Owner’s Authorized Representative
and approval by the Owner. During the preparation of the Construction Documents, the CMAR shall
update and refine this estimate at appropriate intervals agreed to by the Owner, Architect and Owner’s
Authorized Representative and CMAR.
d) If any estimate submitted to the Owner exceeds previously approved estimates or the
Owner’s Maximum Allowable Construction Cost (MACC), the CMAR shall make appropriate
recommendations to the Architect and Owner’s Authorized Representative to reduce the
estimate, including CMAR Fee and Specified General Conditions, to a total within the Owner’s
MACC.
e) CMAR shall notify the Owner and the design team immediately if any construction cost estimate
appears to be exceeding the construction budget within the Owner’s MACC.
f) The CMAR otherwise shall work with the Architect and Owner to develop a GMP within the Owner’s
MACC and within Owner’s schedule.
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3.1.6
The CMAR shall perform the following services relating to Subcontractors and suppliers:
a) The CMAR shall seek to develop Subcontractor and supplier interest in the Project, consistent with
applicable legal requirements, and shall furnish to the Owner’s Authorized Representative and Architect
for their information a list of possible Subcontractors and suppliers, including suppliers who may furnish
materials or equipment fabricated to a special design, from whom competitive bids, quotes, or proposals
(collectively, "Offers") will be requested for each principal portion of the Work. Submission of such list is
for information and discussion purposes only and not for prequalification. The receipt of such list shall
not require the Owner, Owner’s Authorized Representative or Architect to investigate the qualifications
of proposed Subcontractors and suppliers, nor shall it waive the right of the Owner or Architect later to
object to or reject any proposed Subcontractor, supplier, or method of procurement.
b) The CMAR shall provide input to the Owner and the design team regarding current construction
market bidding climate, status of key subcontract markets, and other local economic conditions. CMAR
shall determine the division of work to facilitate bidding and award of trade contracts, considering such
factors as bidding climate, improving or accelerating construction completion, minimizing trade
jurisdictional disputes, and related issues. CMAR shall advise Owner on subcontracting opportunities
for minority/women/ESB firms.
3.1.7 The CMAR shall recommend to the Owner’s Authorized Representative and Architect a schedule for
procurement of long-lead time items which will constitute part of the Work as required to meet the Project
schedule, which shall be procured by the CMAR upon execution of either a GMP Amendment or Early Work
Amendment covering such procurement, and approval of such schedule by the Owner’s Authorized
Representative. The CMAR shall expedite the delivery of long-lead time items.
3.1.8 The CMAR shall work with the Owner in identifying critical elements of the Work that may require
special procurement processes, such as prequalification of Offerors or alternative contracting methods.
3.1.9 The CMAR shall work with the Owner and the design team to maximize energy efficiency in the
Project, including without limitation providing estimating and value engineering support to the Owner’s
analysis and application for energy related incentive programs offered by local utilities.
3.1.10 The CMAR shall work with the Owner and the design team to facilitate changes to the Project
necessary to allow incorporation of works of art into the design and construction of the building, if proposed
by the Owner. Owner’s cost of the art objects is not included in the Cost of the Work or the GMP, but CMAR’s
costs relating to facilitating changes to accommodate the handling and installation of the art are part of the
Cost of the Work and are included in the GMP.
3.1.11 The CMAR shall assist the Owner and the Design Team in identifying potential LEED credits for
LEED Silver Certification. This effort will be initiated by meetings held during the Schematic Design Phase to
identify sustainable design and construction practices with periodic meetings held thereafter to monitor and
progress in achieving LEED Silver (or better) by the US Green Building Council.
3.2 Construction Phase Services.
3.2.1 Upon execution of an Early Work Amendment or GMP Amendment, the CMAR shall provide
Construction Phase Services as provided in the Contract Documents, including without limitation providing
and paying for all materials, tools, equipment, labor and professional and non-professional services, and
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performing all other acts and supplying all other things necessary to fully and properly perform and complete
the Work, as required by the Contract Documents, to furnish to Owner a complete, fully functional Project,
capable of being legally occupied and fully used for its intended purposes upon completion of the Contract
(or, as to an Early Work Amendment, to furnish such Work as is described in the Early Work Amendment).
Construction Phase Services shall include CM Services performed during the Construction Phase.
3.2.2 Notwithstanding any other references to Construction Phase Services in this Contract, this Contract
shall include Construction Phase Services only unless (i) the parties execute a GMP Amendment or (ii) the
parties execute an Early Work Amendment, defined below.
3.2.3 The parties may execute one or more Early Work Amendments identifying specific Construction
Phase Services that must be performed in advance of establishment of the GMP, without exceeding a notto-exceed budget, a not-to-exceed guaranteed maximum price, or a fixed price ("Early Work Price") to be
stated in such Amendment, with such Amendment including all necessary Central New Mexico Community
College approvals where required. If the Early Work Price is a not-to-exceed budget, then CMAR shall be
obligated to perform the Early Work only to the extent that the Cost of Work therefor, together with the CMAR
Fee, does not exceed the Early Work Price; however if CMAR performs Early Work with a cost in excess of
the Early Work Price the CMAR shall pay such excess cost without reimbursement. If one or more Early
Work Amendments are executed, the CMAR shall diligently continue to work toward development of a GMP
Amendment acceptable to Owner, which shall incorporate the Early Work Amendments
3.2.4 Prior to commencement of the Construction Phase, and in any event not later than mutual execution
of the GMP Amendment, CMAR shall provide to Owner a full performance bond and a payment security bond
as required by Article 11.5 of the CNM General Conditions in the amount of the GMP. If an Early Work
Amendment is executed, CMAR shall provide such bond in the amount of the Early Work Price under the
Early Work Amendment. CMAR shall provide to Owner additional or replacement bonds at the time of
execution of any subsequent Early Work Amendment or GMP Amendment, in each case prior to execution
of the Amendment and the supplying of any labor or materials for the prosecution of the Work covered by the
Amendment, and in each case in a sufficient amount so that the total bonded sum equals or exceeds the
total Early Work Price or the GMP, as the case may be. In the event of a Scope Change that increases the
GMP, CMAR shall provide to Owner an additional or supplemental bond in the amount of such increase prior
to performance of the additional Work.
3.3
Construction Management (CM) Services. Throughout the Preconstruction Phase and Construction
Phase of the Project, the CMAR shall provide CM Services, generally consisting of coordinating and
managing the building process as an independent contractor, in cooperation with the Owner, Owner’s
Authorized Representative, Architect and other designated Project consultants (the "Construction
Principals"). CM Services shall include, but are not limited to:
3.3.1
Providing all Preconstruction Phase Services described above;
3.3.2 Developing and delivering schedules, preparing construction estimates, performing constructability
review, analyzing alternative designs, studying labor conditions, coordinating and communicating the
activities of the Construction Principals throughout the Construction Phase to all Construction Principals;
3.3.3 Continuously monitoring the Project schedule and recommending adjustments to ensure completion
of the Project in the most expeditious manner possible;
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3.3.4 Working with the Owner, Owner’s Authorized Representative, and the Architect to analyze the
design, participate in decisions regarding construction materials, methods, systems, phasing, and costs, and
suggest modifications to achieve the goals of providing the Owner with the highest quality Project within the
budget, GMP and schedule;
3.3.5 Providing Value Engineering ("VE") services ongoing throughout the Project. CMAR shall develop
cost proposals, in the form of additions or deductions from the GMP, including detailed documentation to
support such adjustments and shall submit such proposals to Owner for its approval. CMAR acknowledges
that VE services are intended to improve the value received by Owner with respect to cost reduction or life
cycle of the Project;
3.3.6 Holding and conducting periodic meetings with the Owner and the Architect to coordinate, update
and ensure progress of the Work;
3.3.7 Submitting monthly written report(s) to the Owner's Authorized Representative. Each report shall
include, but shall not be limited to, Project updates including (i) actual costs and progress for the reporting
period as compared to the estimate of costs; (ii) explanations of significant variations; (iii) work completed;
(iv) work in progress; (v) changes in the work; and (vi) other information as determined to be appropriate by
the Owner. Oral or written updates shall be provided to the Owner as deemed appropriate by the CMAR or
as requested by the Owner;
3.3.8 Maintaining a daily log containing a record of weather, subcontractors working on the site, number
of workers, work accomplished, problems encountered, safety violations and incidents of personal injury and
property damage, and other similar relevant data as the Owner may reasonably require. The log shall be
available to the Owner and Architect on request;
3.3.9 Developing and implementing a system of cost control for the Work acceptable to Owner’s
Authorized Representative, including regular monitoring of actual costs for activities in progress and
estimates for uncompleted tasks and proposed changes. The CMAR shall identify variances between actual
and estimated costs and report the variances to the Owner and Architect at regular intervals;
3.3.10 Cooperating with any and all consultants hired by Owner;
3.3.11 At Owner's request, cooperating and performing warranty and inspection Work for the Project
expeditiously through the expiration date of the applicable warranty period;
3.3.12 Cooperating with the Owner’s Commissioning Agent, providing manpower and technical assistance
as required to ensure that the facility systems are commissioned and in full operation at substantial
completion. Such start-up and commissioning may occur in phases due to phased occupancy;
3.3.13 Incorporating commissioning and inspection agents' activities into the Project schedule and
coordinating Subcontractors required to participate in the commissioning and inspection process;
3.3.14 Assisting the Owner and the Architect by providing the documentation required for submittal to the
US Green Building Council for LEED Silver (or higher) Certification;
3.3.15 Assisting the Owner and the Architect in assembling documentation and cost information required to
complete submissions to obtain rebates offered by local utility companies providing utility services to the
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facility being constructed under this contract;
3.3.16 Assisting the Owner in performing a cost segregation study for New Mexico gross receipts tax
deduction purposes relative to gross receipts taxes paid on this contract. CMAR shall cooperate in providing
the necessary information required for the cost segregation study and shall cooperate with the Owner’s
consultant hired to perform the study;
3.3.17 Assisting the Owner and the Architect in identifying and developing “Campus as a Living Laboratory
Opportunities” to provide CNM students with a real world experience in construction.
3.3.18 Performing all other obligations and providing all other services set forth in the Contract Documents;
and performing all other acts and supplying all other things necessary, including completing all punchlist work
and project documentation to fully and properly perform and complete the Work as required by the Contract.
ARTICLE 4
RELATIONSHIP AND ROLES OF THE PARTIES
4.1
Independent Contractor. The CMAR is an independent contractor and not an officer, employee, or
agent of Owner.
4.2
Performance of Work. The CMAR covenants with Owner to cooperate with the Architect and
Owner’s Authorized Representative and utilize the CMAR's professional skill, efforts and judgment in
furthering the interests of Owner; to furnish efficient business administration and supervision; to furnish at all
times an adequate supply of workers and materials; and to perform the Work in conformance with the terms
and conditions of the Contract Documents and in an expeditious and economical manner consistent with the
interests of Owner.
4.3
Design Consultants. Owner has a separate contract with the Architect related to the Project. Both
the CMAR and the Architect shall be given direction by Owner through Owner’s Authorized Representative.
The CMAR agrees to support Owner's efforts to create a collaborative and cooperative relationship among
the CMAR, Architect, other Project consultants, and Owner’s Authorized Representative.
4.4
Forms and Procedures. The Owner has developed or may develop procedures and forms for the
administration and tracking of the Contract. The CMAR agrees to abide by those procedures and use those
forms.
4.5
CMAR's Project Staff. The CMAR's Project staff shall consist of the following personnel:
4.5.1 Project Manager: ____________ shall be the CMAR's Project Manager and will supervise and
coordinate all Construction Phase and Preconstruction Phase Services of CMAR and participate in all
meetings throughout the Project term unless otherwise directed by Owner. CMAR represents that each of
the Project Manager has authority to execute Change Orders and Contract Amendments on behalf of CMAR.
4.5.2 Job Superintendent: If Construction Phase Services are requested and accepted by CNM,
___________ shall be the CMAR's on-site job superintendent throughout the Project term.
4.5.3 Project Executive: If the Construction Phase Services are requested and accepted by CNM,
___________ shall be the CMAR Project Executive assigned to this Project.
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4.5.4 Key Persons. The CMAR's personnel identified in Article 4.5, shall be considered Key Persons and
shall not be replaced during the Project without the written permission of Owner, which shall not be
unreasonably withheld. If the CMAR intends to substitute personnel, a request must be given to Owner at
least 30 Days (or such shorter period as permitted by Owner) prior to the intended time of substitution. When
replacements have been approved by Owner, the CMAR shall provide a transition period of at least 10
Business Days during which the original and replacement personnel shall be working on the Project
concurrently. Once a replacement for any of these staff members is authorized, further replacement shall
not occur without the written permission of Owner.
4.5.5 Administrative Support. CMAR shall provide sufficient administrative support to ensure that
adequate records of project documents including correspondence, submittals, requests for information, plans
and specifications, records for LEED submission and change order documentation are maintained on site.
ARTICLE 5
DATE OF COMMENCEMENT; SUBSTANTIAL AND FINAL COMPLETION
5.1
Notice to Proceed. If Construction Phase Services are added to the Contract as set forth in
Article 3.2, then a notice to proceed will be issued by Owner to begin the designated or full Construction
Phase Services (“Notice to Proceed”). It is anticipated that the Notice to Proceed will be issued on or about
February 2, 2015 for Early Work for work to construct a space in the old culinary arts program area in the
basement of Building “A” and June 1, 2015 for the balance of the Work in the GMP Amendment. A separate
Notice to Proceed shall be issued for any and every Early Work Amendment.
5.2
Completion of Project. The CMAR shall achieve Substantial Completion of the entire Work not
later than two hundred forty (240) calendar days after the effective date of the Notice to Proceed for the
balance of the Work in the GMP Amendment and shall achieve Final Completion not later than thirty (30)
calendar days after the earlier of (i) Substantial Completion or (ii) the required date for Substantial
Completion.
5.3
Time is of the Essence. All time limits stated in the Contract Documents are of the essence.
5.4
Time Extensions. Notwithstanding provisions for Contract time extensions in Article 8 of the CNM
General Conditions, Owner and CMAR agree that timely completion of the Work is essential to the success
of the Project, and that approval for time extension shall be granted only as a last resort. CMAR agrees to
make every effort to recover "lost" time.
5.5
Liquidated Damages. The CMAR acknowledges that the Owner will sustain damages as a result of
the CMAR's failure to substantially complete the Project in accordance with the Contract Documents. These
damages may include, but are not limited to delays in completion, use of the Project, and costs associated
with Contract administration and use of temporary facilities. The CMAR and the Owner acknowledge that
the actual amount of damages would be difficult to determine accurately and agree that that the following
liquidated damages figure represents a reasonable estimate of such damages and is not a penalty:
5.5.1 Liquidated Damages shall be $1,000.00 for each day that Substantial Completion exceeds the
required date of Substantial Completion.
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5.5.2 Liquidated Damages shall be $500.00 for each day that Final Completion exceeds the required
date of Final Completion.
5.5.3 The CMAR agrees to pay to the Owner the liquidated damage sums set forth above for each day of
delay or any fraction thereof and further agrees that Owner may deduct such sums from payments the Owner
otherwise owes to CMAR under the Contract. If such deduction does not result in payment to Owner of the
assessed liquidated damages in full, CMAR shall promptly pay any and all remaining sums due to the Owner
upon demand.
ARTICLE 6
CONTRACT SUM AND GMP
6.1
Contract Sum. If a GMP Amendment or Early Work Amendment is executed, Owner shall pay the
CMAR, as payment for the Work, the "Contract Sum" which shall equal the sum of the Preconstruction Fee,
the CMAR Fee, the fixed Cost for Specified General Conditions Work and the actual Cost of the Work, but
not exceeding the GMP or Early Work Amendment.
The GMP shall be determined in accordance with the formula set forth below and shall not include New
Mexico gross receipts tax. The Guaranteed Maximum Price (GMP) is the sum of the Contractor’s Fee, the
fixed cost for Specified General Conditions and the Cost of the Work as defined in Article 8. Costs in excess
of the GMP shall be paid by the CMAR without reimbursement by Owner. Changes to the GMP shall only
be authorized by Amendment or Change Order that includes any necessary Central New Mexico Community
College Director of Purchasing approvals.
Preconstruction Fee + CMAR Fee + Specified General Conditions + The Cost of the Work = GMP
6.2
Preconstruction Fee. The Preconstruction Fee shall be payable to CMAR on a cost reimbursement
basis up to a maximum sum of $41,700.00 which shall cover constructability review, value engineering, cost
estimating, development of GMP, and all other Preconstruction Phase Services, as described in Article 3. If
CMAR's costs for provision of Preconstruction Phase Services exceed the maximum Preconstruction Fee,
CMAR shall pay such additional cost without reimbursement. CMAR shall not be entitled to any CMAR Fee
upon the Preconstruction Fee. Owner shall pay the Preconstruction Fee on a cost-reimbursement basis with
each application for payment during the Preconstruction Phase. If the total actual Preconstruction Fee is
less than the maximum Preconstruction Fee used for initial calculation of the GMP as provided above, the
GMP shall be reduced by the difference; provided that Owner may direct instead that any applied portion of
the maximum Preconstruction Fee be applied to Construction Phase Services, in which case the GMP shall
not be reduced by the portion so applied. Except to the extent the parties may expressly agree to the contrary
in the GMP Amendment, no Preconstruction Fee or other fee, compensation or reimbursement shall be
payable to CMAR with respect to Preconstruction Services performed after execution of the GMP
Amendment.
6.3.
Establishment of CMAR Fee; Adjustments to CMAR Fee.
6.3.1 The CMAR shall submit a number on the Form of Proposal which represents the CMAR’s Fee stated
as a percentage of the Cost of the Work. That fee shall be converted to a fixed dollar lump sum to be identified
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in the GMP Amendment, and shall be calculated as _________ percent (__ %) of the negotiated Cost of the
Work at the time of the establishment of the GMP. In making such calculation, the Cost of the Work shall
exclude the Preconstruction Fee, the fixed cost for Specified General Conditions Costs, the CMAR Fee itself,
and any other cost or charge that this Contract states is not to be included in calculating the CMAR Fee, but
shall include CMAR Field Work, Allowances, selected alternates, and reasonable CMAR contingencies as
designated in the GMP Supporting Documents. The CMAR Fee is inclusive of profit, overhead, and all other
indirect or non-reimbursable costs as defined in Article 8. Owner shall pay the CMAR Fee ratably with each
application for payment during the Construction Phase. In the case of Early Work, the CMAR Fee shall be
the above percentage multiplied by the actual Cost of the Early Work, until such time as a GMP Amendment
is executed, at which time such CMAR Fee payments shall be credited against the CMAR Fee fixed therein.
6.3.2 Unless the parties agree in writing to the contrary, any Amendment or Change Order that increases
or decreases the GMP shall adjust the CMAR Fee then in effect by the multiplying the percentage shown in
Article 6.3.1 by the change in the Estimated Cost of the Work reflected in such approved Amendment or
Change Order. In addition, if the Contract is terminated for any reason prior to full completion of the Work
(including, without limitation, termination during or following performance of Early Work), the CMAR Fee shall
be limited to the total CMAR Fee multiplied by the percentage of Work completed and accepted at the time
of termination. The CMAR Fee shall not be subject to adjustment for any other reason, including, without
limitation, schedule extensions or adjustments, Project delays, unanticipated costs, or unforeseen conditions.
6.4
Determination of the Guaranteed Maximum Price:
6.4.1 When Owner and CMAR mutually agree that the drawings and specifications are sufficiently
complete for the CMAR to provide a Guaranteed Maximum Price (GMP) for the Work, the CMAR shall deliver
to Owner a proposed GMP and GMP Supporting Documents for review and negotiation. If any actual
subcontract Offers are available at the time the GMP is being established, CMAR shall use those subcontract
Offers in establishing the GMP.
6.4.2 As the Plans and Specifications may not be developed to the stage of biddable design documents
at the time the GMP proposal is prepared, the CMAR shall provide in the GMP for further development of the
Plans and Specifications by the Architect that is 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 or Amendment with a corresponding GMP adjustment.
6.4.3 The CMAR shall include with its GMP proposal a written statement of its basis (the "GMP Supporting
Documents"), which shall include:
6.4.3.1 A list of the Plans and Specifications, including all addenda thereto and the conditions of the Contract,
which were used in preparation of the GMP proposal.
6.4.3.2 A list of allowances and a statement of their basis.
6.4.3.3 A list of the clarifications and assumptions made by the CMAR in the preparation of the GMP
proposal to supplement the information contained in the Plans and Specifications.
6.4.3.4 The proposed GMP including a statement of the estimated cost organized by trade categories,
allowances, contingency, and other items and the associated fees that comprise the GMP.
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6.4.3.5 The Date of Substantial Completion upon which the proposed GMP is based, and a schedule of the
Construction Documents issuance dates upon which the date of Substantial Completion is based.
6.4.4 The CMAR shall meet with the Owner and Architect to review the GMP proposal and the written
statement of its basis. If the Owner or Architect discovers any inconsistencies or inaccuracies in the
information presented, they shall promptly notify the CMAR, who shall make appropriate adjustments to the
GMP proposal, its basis or both.
6.4.5 Prior to the Owner's acceptance of the CMAR's GMP proposal and issuance of the GMP Amendment
and a Notice to Proceed, the CMAR shall not incur any cost to be reimbursed as part of the Cost of the Work,
except as specifically provided in an Early Work Amendment.
6.4.6 The Owner shall authorize and cause the Architect to revise the Plans and Specifications to the
extent necessary to reflect the agreed-upon assumptions and clarifications contained in the GMP
Amendment. Such revised Plans and Specifications shall be furnished to the CMAR in accordance with
schedules agreed to by the Owner, Architect and CMAR. The CMAR shall promptly notify the Architect and
Owner if such revised Plans and Specifications are inconsistent with the agreed-upon assumptions and
clarifications.
6.4.7 The GMP shall include the CMAR's contingency, a sum established by the CMAR for the CMAR's
exclusive use to cover additional development of Plans and Specifications. This contingency is the
contingency described in Article 6.4.2 above.
6.4.8 The CMAR shall work with the Architect and Owner to identify and confirm components and systems
not specifically shown but required for a complete, fully functional Project. Owner will direct the Architect to
complete the final Construction Documents in accordance with the Project scope agreed upon by all parties
at the time the GMP is established. Notwithstanding the level of detail represented in the GMP Supporting
Documents, the CMAR shall represent and warrant, at the time that it submits the GMP, that the GMP
includes the entire cost of all components and systems required for a complete, fully functional facility.
6.5
Failure to Furnish an Acceptable GMP. If the CMAR does not furnish a Cost of the Work acceptable
to Owner that, when added to the Contractor’s Fee and Specified General Conditions bid in response to the
Request for Proposals results in a GMP that is within Owner's MACC, or if Owner determines at any time in
its sole discretion that the parties may fail to reach a timely agreement on a GMP acceptable to Owner,
Owner may terminate this Contract without liability, and the CMAR shall forfeit its RFP Proposal Bond and
shall not receive additional compensation beyond the Preconstruction Fee under this Contract and sums due
under any Early Work Amendment.
6.6
Acceptance of the GMP. Upon acceptance of the GMP by Owner, the parties shall execute a GMP
Amendment.
6.7
Owner Savings. If the sum of the Preconstruction Fee, plus the CMAR Fee, plus the actual and final
Cost of the Work (the Contract Sum as defined in Article 6.1), is less than the GMP, the savings shall accrue
to the Owner.
6.8
Allowance Work.
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6.8.1 CMAR shall not perform any Allowance Work without prior execution by Owner of a Change Order
approving the Specifications for the Allowance Work and the price thereof.
6.8.2 Owner shall be entitled to apply any Allowance line items that are not been fully expended to other
line item Allowances that have been fully expended, without any resulting increase in the Cost of the Work
or GMP.
6.8.3 If the total Cost of the Allowance Work exceeds the total Allowances within the GMP, CMAR shall
not perform any Allowance Work in excess of such amount until either (i) the parties agree that the additional
Allowance work will be performed within the then-current GMP or (ii) a GMP Amendment is executed to
increase the GMP by the excess cost of the Allowance work.
6.8.4 The Contract Sum shall not include any Allowance items not identified in the GMP Amendment or
the GMP Supporting Documents until such allowance item is reduced to a fixed price by Change Order or
Amendment.
6.8.5 If at the Final Completion of the Project, any portion of the Allowance funds remains unexpended,
the GMP shall be reduced by a corresponding amount via a Change Order or Amendment.
6.9
Reallocating Projected Cost Under-runs after Bid (Offer) Buyout. As soon as possible after the
awarding of the Work to the primary Subcontractors, CMAR shall review projected costs and provide the
Owner with a buy-out status report showing any projected cost under-runs, reconciling accepted Offers and
other reasonably anticipated costs, to the cost estimate used by CMAR to establish the GMP. CMAR shall
include with its report any underlying documentation requested by Owner used to develop or support such
report. CMAR shall also consider the reduced risk associated with known subcontracting costs, and the
impact that reduced risk has on the remaining subcontracts to be awarded. The CMAR may retain
$130,000.00 as a GMP Contingency to be used by the CMAR during construction and shall return the balance
to the Owner in a change order together with the Percent Fee multiplied by the under-run, or utilize the underrun to fund additive alternates or other work as directed by the Owner. The CMAR may use the GMP
Contingency for costs related to subcontractors claims or charges that result from mistakes or omissions in
the subcontract buyout, interferences between subcontractor and the CMAR, interference between
subcontractors, replacement of damaged work that cannot be assigned to another subcontractor, expediting
costs for critical materials, and opportunities to improve the schedule. The CMAR’s use of the GMP
Contingency shall be approved in advance by
the Owner’s Representative. The GMP Contingency is not available for Owner generated changes,
unforeseen conditions, regulatory changes or changes due to errors or omissions in the contract documents
which must be paid from the Owner’s contingency. Any funds remaining in the GMP Contingency at Final
Completion shall be returned to the Owner.
ARTICLE 7
CHANGES IN THE WORK
7.1
Price Adjustments. Adjustments to the GMP required by changes in the Work shall be determined
by any of the methods listed in Article 7 of the CNM General Conditions unless the pricing is based upon
subcontractor bid pricing or unit pricing:
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7.1.1 The profit markup for the CMAR shall be limited to the CMAR Fee adjustment, if any, permitted under
Article 6.3.2 of this Contract;
7.1.2 In calculating adjustments to subcontracts, unless the parties agree otherwise, the change shall be
limited to the Subcontractor's Direct Costs plus the supplemental mark-up provided in Article 7 of the CNM
General Conditions.
7.2
Adjustments to GMP. Adjustments to the GMP after execution of the GMP Amendment may be
made only (i) in the event of Scope Changes or (ii) as otherwise expressly provided in this Contract, and then
only in accordance with the following procedure:
7.2.1 CMAR shall review subsequent iterations of the Plans and Specifications as they are prepared to
determine whether, in the opinion of CMAR, they result in a Scope Change so that it can be determined if an
adjustment to the GMP is warranted.
7.2.2 Changes to the GMP shall be initiated by written notice by one party to the other ("GMP Change
Request"). CMAR shall deliver any such GMP Change Request to Architect and Owner’s Authorized
Representative promptly after becoming aware of any Scope Change if, in CMAR's opinion, it constitutes
grounds for adjustment of the GMP. Any GMP Change Request shall include a proposal as to the appropriate
GMP adjustment with respect to the Scope Change at issue.
7.2.3 CMAR shall submit its GMP Change Requests as soon as possible, and CMAR shall not be entitled
to claim a GMP increase unless CMAR submitted a GMP Change Request to Owner’s Authorized
Representative and to Architect within the earlier of (a) 30 Days after CMAR has received the information
constituting the basis for the claim, or (b) as to Work not yet bid or proposed, prior to submission of
solicitations for such Work and as to Work already solicited, prior to commencement of the portion of the
Work for which CMAR intends to claim a Scope Change; and (c) in any event, prior to CMAR's signing of a
Change Order for the Scope Change.
7.2.4 Owner may, at any time, submit a GMP Change Request requesting a reduction of the GMP, which
shall include Owner's basis for such request, which may include, for example, reduction of the CMAR's
Contingency after further development of the Plans and Specifications that form the basis for the original
GMP Amendment, and/or unused Allowances.
7.2.5 CMAR shall work with Architect to reconcile all differences in its GMP Change Request with Architect
within seven Days from the date of submission of the GMP Change Request. "Reconciled" means that the
CMAR and Architect have verified that their assumptions about the various categories are the same, and that
identifies the reason for differences in the GMP Change Request and the Architect's position. CMAR shall
submit the Reconciled GMP Change Request to Owner, which submission shall be a condition to any CMAR
claim for a GMP increase.
7.2.6 If the Reconciled GMP Change Request is not acceptable to Owner, CMAR agrees to work with the
Owner and the Architect to provide a GMP Change Request that is acceptable to Owner.
7.2.7 CMAR agrees to make all records, calculations, drawings and similar items relating to GMP Change
Request available to Owner and to allow Architect and Owner access and opportunity to view such
documents at CMAR's offices. Upon Owner's reasonable notice, CMAR shall deliver two copies of such
documents to Owner and Architect at any regular meeting or at the Site.
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7.2.8 GMP increases, if any, shall not exceed the increased Cost of the Work arising from the Scope
Change (whether based on agreed fixed pricing, or the GMP increase based on cost-reimbursable pricing),
reconciled in accordance with the above provisions, as arising from the incident justifying the GMP increase,
plus or minus the CMAR Fee applicable to such change in the Cost of the Work.
7.2.9 Execution by Owner. Architect has no authority to execute Change Orders or Amendments on
behalf of Owner. Only duly authorized personnel of Owner may do so.
ARTICLE 8
COST OF THE WORK
8.1
The Cost of the Work. The Cost of the Work is the amount, mutually agreed to between the Owner
and the CMAR that is required to complete the Work for the Project as described in the Contract Documents.
The Cost of the Work shall include funds for all costs through the life of the Project, except those required
for:
8.1.1.
Preconstruction Work;
8.1.2
CMAR Fee;
8.1.3
Fixed Amount for Specified General Conditions Work;
8.1.4
Owner directed Changes;
8.1.5
Other changes due to:
1.)
Design errors;
2.)
Unforeseen conditions;
3.)
Regulatory requirements at variance with the contract documents.
8.1.6
New Mexico Gross Receipts Tax.
8.2
CMAR Fee and Specified General Conditions.
8.2.1 CMAR Fee. The CMAR shall submit a number on the Form of Proposal which represents the CMAR’s Fee
stated as a percentage of the Cost of the Work. The fee shall only be earned on the Cost of the Work, not on
Preconstruction Work, Specified General Conditions or other items excluded from the Cost of the Work. The Fee shall
include the following:
1.)
All profit of the CMAR for this project;
2.)
All regional and home office overhead expenses, including labor and materials, travel, phone,
facsimile, computer, and other incidental office expenses attributed to work for this project that is not
specifically identified in the Specified General Conditions Work;
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3.)
All expenses of the CMAR, whether direct or through consultants or attorneys, for participation in
and the support of the subcontractor bidding process for the project that are not paid for as Specified
General Conditions Work.
4.)
All requirements of the Contract marked as FEE Items in Attachment 1 – SUMMARY MATRIX OF
COST ALLOCATION.
5.)
Other than NMGRT, the fee shall cover all taxes owed by the CMAR.
8.2.2 Specified General Conditions Work. The CMAR shall submit a number on the Form of Proposal which
represents the dollar amount for the “Specified General Conditions Work”. Specified General Conditions Work shall
include:
1.) Wages and salaries of the CMAR’s project management, supervisory and administrative personnel
stationed at the site, or engaged at factories, workshops or on the road, in expediting the production or
transportation of materials or equipment required for the Work.
2.) Fringe benefit costs paid for the CMAR’s project management, supervisory and administrative personnel
incurred by the CMAR for taxes, insurance, contributions, assessments and benefits required by law or
collective bargaining contracts and, for personnel not covered by such contracts, customary benefits such
as sick leave, medical and health benefits, holidays, vacations and pensions, provide such costs are
based on wages and salaries included in Specified General Conditions Work.
3.) That portion of premiums for insurance directly attributable to this Contract and payment and performance
bonds as required by the CNM General Conditions (but excluding premiums for Subcontractor bonds
unless authorized by CNM.)
4.) All of the requirements in the Contract marked as Specified General Condition Items in Attachment 1 –
SUMMARY MATRIX OF COST ALLOCATION.
8.3
Fixed Cost For Specified General Conditions Work. CMAR shall be paid a fixed sum of $_________as
payment for the SGC Work, including all labor, materials, and direct and indirect costs thereof. The Fixed Cost for
SGC Work shall be paid in equal installments monthly over the number of months of the scheduled Construction Phase,
commencing with the first progress billing after commencement of the scheduled Construction Phase. However, no
adjustment in the amount payable for Specified General Conditions Work will be made if the actual construction period
is shorter or longer than the number of months scheduled for the Construction Phase, unless the construction period
is extended because of an Owner-requested delay.
ARTICLE 9
COSTS EXCLUDED FROM COST OF WORK
(Not To Be Reimbursed)
9.1
Costs Excluded from Cost of Work. The following shall not be included in the Cost of the Work:
9.1.1
CMAR's capital expenses, including interest on the CMAR's capital employed for the Work.
9.1.2
Any cost associated with the Project not specifically and expressly described in Article 8.
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9.1.3 Costs due to the fault or negligence of the CMAR, Subcontractors, suppliers, anyone directly or indirectly
employed by any of them, or for whose acts any of them may be liable.
9.1.4
The cost of correction of any repair work, nonconforming or defective work, or warranty work.
9.1.5
Merit, safety, or other incentive payments, bonuses or awards, or any expenses in connection therewith,
except as provided in Article 8.
9.1.6
Fines and penalties.
9.1.7
The cost of CMAR Field Work in excess of the fixed amount agreed for CMAR Field Work in the GMP.
9.1.8
Any costs in excess of the GMP.
ARTICLE 10
DISCOUNTS, REBATES AND REFUNDS
10.1
Discounts, Rebates and Refunds. Cash discounts obtained on payments made by the CMAR shall accrue to
Owner. Trade discounts, rebates, refunds and net amounts received from sales of surplus materials and equipment
shall accrue to Owner, and the CMAR shall make provisions so that they can be secured.
10.2
Amounts Credited to Owner. Amounts which accrue to Owner in accordance with the provisions of Article 10.1
shall be credited to Owner in a deductive change order.
ARTICLE 11
SUBCONTRACTS AND OTHER CONTRACTS
11.1 General Subcontracting Requirements.
11.1.1 Other than Work for Preconstruction and Specified General Conditions Work and Work performed pursuant
to Articles 11.4 or 11.5 of this Contract, CMAR shall subcontract the Work to Subcontractors other than the CMAR and
its Affiliates.
11.2
CMAR's Obligations under Subcontracts.
11.2.1 No use of a Subcontractor or supplier shall relieve the CMAR of any of its obligations or liabilities under the
Contract. Except as may expressly otherwise be provided in this Contract, the CMAR shall be fully responsible and
liable for the acts or omissions of all Subcontractors and suppliers including persons directly or indirectly employed by
them. The CMAR shall have sole responsibility for managing and coordinating the operations of its Subcontractors
and suppliers, including the settlement of disputes with or between the CMAR and any such Subcontractor or supplier.
11.2.2 The CMAR shall include in each subcontract and require each Subcontractor to include in any lower tier
subcontract, any provisions necessary to make all of the provisions of the Contract Documents, including the CNM
General Conditions, fully effective as applied to Subcontractors. CMAR shall indemnify Owner for any additional cost
based on a subcontractor claim which results from the failure of CMAR to incorporate the provisions of this Contract in
each subcontract. The CMAR shall provide all necessary Plans, Specifications, and instructions to its suppliers and
Subcontractors to enable them to properly perform their work.
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11.3 Subcontractor Selection.
11.3.1 Unless otherwise provided under this Article 11, the selection of all Subcontractors and suppliers shall be
made by competitive Offers in a manner that will not encourage favoritism or substantially diminish competition. The
process shall conform to the following procedures, in general compliance with the open and competitive nature of public
procurement, taking into account industry subcontracting practices.
11.3.2 CMAR shall submit to Owner’s Authorized Representative its proposed procurement documents for review
and comment before they are issued for solicitation. CMAR shall consider and respond to all Owner comments
regarding any proposed Offer packages. As Offers are received, CMAR shall submit to the Owner an Offer comparison
in a mutually agreeable form together with any specific back-up requested by Owner. The competitive process used to
award subcontracts by the CMAR may be monitored by the Owner’s Authorized Representative; provided that such
monitoring shall not excuse the CMAR from compliance with the subcontracting requirements of this Contract and the
State of New Mexico. CMAR shall cooperate in all respects with Owner's monitoring. The Owner’s Authorized
Representative shall be advised in advance of and be given the opportunity to be present at Offer openings, and CMAR
shall provide him or her with a summary or abstract of all Offers in form acceptable to the Owner’s Authorized
Representative, and copies of particular Offers if requested, prior to CMAR's selection of Offerors. Prior to opening
Offers, the CMAR agrees to disclose in writing to Owner any financial interest it has in any such Subcontractor, supplier
or other contracting party whenever such Subcontractor, supplier or contracting party intends to compete on any Project
work, directly or indirectly, including whether such party is an Affiliate of CMAR.
11.3.3 The following minimum requirements apply to the Subcontract solicitation process:
a) Solicitations will be advertised at least 10 calendar days prior to opening in a newspaper of general circulation
and in at least one other newspaper specifically targeted to reach the Minority, Women and Emerging Small
Business audience. CMAR also agrees to advertise in a local community newspaper in the area in which the
Project is located, in order to allow for local participation in the solicitation process.
b) Unless specific other prior arrangement has been made with Owner, all Offers will be written, and submitted
to a specific location at a specific time. CMAR shall time-stamp all Offers as received. Subcontractors must be
qualified to perform the Work for this Project by being appropriately licensed with the State of New Mexico.
c) If fewer than three (3) Offers are submitted in response to any solicitation (inclusive of any Offer submitted by
CMAR), prior written approval by Owner shall be required to accept the Offer.
d) CMAR may develop and implement a prequalification process for particular solicitations, followed by selection
of successful Offers among those Offerors that CMAR determines meet the prequalification standards, with
Owner’s prior written approval of such prequalification process.
e) CMAR shall comply, and require Subcontractor compliance with, New Mexico State Department of Workforce
Solutions prevailing wage rates as specified in the GMP Amendment.
f) Owner may at its sole discretion, require CMAR to re-solicit for Offers based on the same or modified
documents.
g) CMAR shall review all Offers and shall work with Offerors to clarify Offers, reduce exclusions, verify scope
and quantities, and seek to minimize work subsequently awarded via the Change Order process.
h) The CMAR will document any and all discussions, questions and answers, modifications and responses to
from any Offeror and ensure that the same are distributed to all Offerors, and Owner shall be entitled to inspect
such documentation on request.
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i) CMAR shall determine the lowest Offer for each solicitation that meets CMAR’s reasonable performance
standards for the components of the Work at issue; provided that if CMAR determines it is unable to execute a
suitable subcontract with such Offeror, CMAR may, with Owner’s prior approval, execute a subcontract with the
second-lowest Offeror pursuant to Article 11.3.4 below.
11.3.4 Under special circumstances and only with prior written authorization by Owner, Work may be subcontracted
on other than a low price basis, including without limitation, through competitive negotiation. As a condition to its
authorization, Owner may require CMAR's agreement to establish and implement qualification and performance criteria
for Offerors, including a scoring system within requests for proposals. Examples include: where there are single
fabricators of materials; special packaging requirements for Subcontractor work; design-build work or, where an
alternative contracting method can be demonstrated to clearly benefit Owner.
11.3.5 CMAR shall notify Owner in writing in advance before award of any proposed Subcontract, which notice shall
include summaries in a form acceptable to Owner of all Offers received for the Subcontract at issue. Owner reserves
the right to disapprove any proposed Subcontractors, suppliers and Subcontract or supply contract awards, based on
legal standards of responsibility. Owner shall not unreasonably disapprove any proposed Subcontractor or supplier.
Increased costs due to Owner's disapproval shall be cause for an increase in the GMP.
11.3.6 CMAR's subcontracting records shall not be considered public records; provided, however, that Owner and
other agencies of the State shall retain the right to audit and monitor the subcontracting process in order to protect the
Owner's interests.
11.4
CMAR Field Work.
11.4.1 The CMAR or its Affiliate may provide CMAR Field Work as defined in Article 1.6 with its own forces, without
the necessity of subcontracting such work.
11.4.2 Except as provided in Article 11.4.1, any other portion of the Work proposed to be performed by CMAR or any
Affiliate, including without limitation provision of any materials, equipment, or supplies, shall be subject to the provisions
of Article 11.5.
11.5
Subcontracting by CMAR.
11.5.1 Except to the extent otherwise approved in advance in writing by Owner’s Authorized Representative, the
CMAR or its Affiliates may submit an Offer in accordance with Article 11.3 to do Work with its own forces, provided at
least 50% of the labor by such work unit is performed by employees of the CMAR or such Affiliate.
11.5.2 For those items for which the CMAR or any of its subsidiaries intends to submit an Offer, such intent must be
publicly announced with the solicitation for Offers required by Article 11.3.1, and Owner notified in writing. All Offers
for this work shall be delivered to Owner and publicly opened by Owner at an announced time, date, and place.
11.6
Protests. CMAR, acting as an independent contractor, shall include in the competitive process to award all
subcontracts, a protest process for Subcontractors and suppliers that are competing Offerors, which process shall be
subject to approval by Owner. CMAR shall be solely responsible for resolving the procurement protests of
Subcontractors and suppliers. CMAR shall indemnify, defend, protect and hold harmless Owner and Architect from
and against any such procurement protests and resulting claims or litigation. CMAR shall act as an independent
contractor, and not an agent of Owner, in connection with any procurement protest. The provisions of this Article 11
are solely for the benefit of Owner, and do not grant any rights or remedies (including third party beneficiary rights) to
any Offer or other protester, in connection with any procurement protest or claim.
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ARTICLE 12
ACCOUNTING RECORDS
12.1
Accounting; Audit Access. The CMAR shall keep full and detailed accounts and exercise such controls as
may be necessary for proper financial management under this Contract; the accounting and control systems shall be
satisfactory to Owner. Owner and Owner's representatives shall be afforded reasonable and regular access to the
CMAR's records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers,
memoranda and other data relating to this Contract, and the CMAR shall preserve these for a period of five years after
final payment, or for such longer period as may be required by law.
12.2
Periodic and Final Audits. Owner may, at its discretion, perform periodic audits of the Cost of the Work and
any other reimbursable costs associated with the Project. Owner intends to conduct a final audit of reimbursable costs
prior to the Contract closeout.
ARTICLE 13
PROGRESS PAYMENTS
13.1
Integration with CNM General Conditions. The requirements of this Article 13 and Article 14 are in addition
to, and not in lieu of, the requirements of Article 9 of the CNM General Conditions.
13.2
Progress Payments. Based upon applications for payment submitted pursuant to Article 9 of the CNM General
Conditions, Owner shall make progress payments on account of the Preconstruction Fee, Cost of the Work, Specified
General Conditions and associated CMAR Fee, to the CMAR as provided below and elsewhere in the Contract
Documents. A progress payment shall not be considered acceptance or approval of any Work or waiver of any defects
therein.
13.3
Percentage of Completion. Applications for payment shall show the percentage of completion of each portion
of the Work as of the end of the period covered by the application for payment.
13.4
Calculation of Payment for Preconstruction Services. Payment for Preconstruction Services shall be based
upon the CMAR’s Preconstruction Work Plan approved by CNM for Preconstruction Work. Payment will be made on
a task basis for Preconstruction Services or tasks completed by the CMAR and accepted by the Owner.
13.5
Calculation of Payment. Subject to other provisions of the Contract Documents, the amount of each progress
payment shall be computed as follows:
a)
Take that portion of the Cost of the Work properly allocable to completed Work as determined by
multiplying the percentage of completion of each portion of the Work under the Schedule of Values by the
share of the Cost of the Work allocated to that portion of the Work in the Schedule of Values;
b)
Add that portion of the Cost of the Work properly allocable to materials and equipment delivered and
suitably stored and otherwise in compliance with Article 9 of the CNM General Conditions;
c)
Add the Specified General Conditions. The Fixed Cost of Specified General Conditions shall be paid
in equal installments monthly over the number of months of the scheduled Construction Phase, commencing
with the first progress billing after commencement of the Construction Phase;
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d)
Add the CMAR's Fee. The portion of the CMAR's Fee payable shall be an amount that bears the
same ratio to CMAR Fee as sum of the amounts in the two preceding Clauses bears to the Cost of the Work;
e)
Subtract the aggregate of previous payments made by the Owner;
f)
Subtract the shortfall, if any, indicated by the documentation required to substantiate prior
applications for payment, or resulting from errors subsequently discovered by the Owner in such
documentation;
g)
Subtract any amounts for which the Owner’s Authorized Representative has withheld or nullified
payment as provided in the Contract Documents.
ARTICLE 14
TERMINATION OR SUSPENSION
14.1
Owner's Right to Terminate Prior to Execution of GMP Amendment. Prior to execution by both parties of the
GMP Amendment, the Owner may terminate this Contract at any time without cause. Upon such termination, the
amount to be paid to the CMAR shall not exceed the Preconstruction Fee payable to the date of termination, together
with amounts payable for Early Work if an Early Work Amendment has been executed. If Owner terminates for
convenience during the Preconstruction Phase, Owner shall be entitled to copies of, and shall have the right to use, all
work product of CMAR and its Subcontractors performed to the date of termination, and CMAR shall deliver copies of
the same to Owner on request.
14.2
Owner's Termination for Convenience after GMP Amendment. After the GMP Amendment is executed by
both parties, the Contract may be terminated by Owner without penalty for convenience pursuant to Article 14.4 of the
CNM General Conditions. The CMAR shall be entitled to payment for the Work executed, plus Specified General
Conditions prorated to the date of termination, plus the CMAR's Fee prorated based on the actual Cost of the Work to
the date of termination, but in any event not in excess of the GMP.
14.3
Owner’s Termination for Cause. In the event of termination of this Agreement by Owner for cause pursuant
to Article 14.2 of the CNM General Conditions, the amount, if any, to be paid to the CMAR after application of the CNM
General Conditions and Owner’s rights at law shall not exceed the amount the CMAR would be entitled to receive
under Article 14.2.
14.4
CMAR Termination for Cause. CMAR acknowledges that disputes regarding payments and Change Orders
may occur as part of the CMAR process, and that Owner's declining to pay disputed amounts shall not be grounds for
suspension of the Work or termination for cause by CMAR. If CMAR terminates this Contract for Owner's material
breach, the amount to be paid to CMAR shall not exceed the amount CMAR would have been entitled to receive under
Article 13 above through termination and demobilization from the Project, with the CMAR Fee prorated based on the
actual Cost of the Work through the date of termination.
ARTICLE 15
REPRESENTATIONS AND WARRANTIES
15.1
Representations. CMAR represents and warrants to Owner as of the effective date of this Contract.
15.1.1 The CMAR's Project Executive and Project Manager identified in Article 4 are duly appointed representatives
and each has the authority to bind the CMAR to any and all duties, obligations and liabilities under the Contract
Documents and any Amendments thereto.
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ARTICLE 16
MISCELLANEOUS
16.1
Headings. The headings used in the Contract are solely for convenience of reference, are not part of the
Contract and are not to be considered in construing or interpreting the Contract.
16.2
Merger. The Contract Documents constitute the entire contract between the parties. No waiver, consent,
modification or change of terms of the Contract shall bind either party unless in writing and signed by both parties.
Such waiver, consent, modification or change, if made, shall be effective only in the specific instance and for the specific
purpose given. There are no understandings, agreements, or representations, oral or written, not specified herein
regarding the Contract. CMAR, by signature of its representative, hereby acknowledges that it has read the Contract,
understands it and agrees to be bound by its terms and conditions.
IN WITNESS WHEREOF, the Owner has caused this contract to be signed by its proper officers, and the
Construction Manager at Risk (CMAR) named has hereunto set his hand.
CMAR FIRM:
___________________________________
BY: __________________________________________
Signature
DATE:__________________
PRINTED NAME/TITLE: _______________________________________
CMAR's Federal I.D. No: _________________
CMAR’s New Mexico Contractor’s License No: ______________
CMAR’s New Mexico Gross Receipts Tax No: _______________
OWNER: CENTRAL NEW MEXICO COMMUNITY COLLEGE
BY: ________________________________________ DATE: _______________
Wanda Helms
Executive Director of Purchasing and Materials Management
EXHIBITS:
Exhibit A – General Conditions of the Contract for Construction Manager at Risk – 2014 Edition
Exhibit B - Form of GMP Amendment
ATTACHMENTS:
Attachment 1 – Summary Matrix of Cost Allocation
Page 53 of 128
EXHIBIT A TO CMAR CONTRACT
CENTRAL NEW MEXICO COMMUNITY COLLEGE
GENERAL CONDITIONS FOR THE CONTRACT FOR CONSTRUCTION MANAGER AT RISK
(CNM GENERAL CONDITIONS, 2014 Version)
ARTICLE 1:
GENERAL PROVISIONS
ARTICLE 2:
OWNER
ARTICLE 3:
CONSTRUCTION MANAGER AT RISK
ARTICLE 4:
ADMINISTRATION OF THE CONTRACT
ARTICLE 5:
SUBCONTRACTORS
ARTICLE 6:
CONSTRUCTION BY OWNER OR BY SEPARATE CONSTRUCTION MANAGER AT
RISKS
ARTICLE 7:
CHANGES IN THE WORK
ARTICLE 8:
TIME
ARTICLE 9:
PAYMENTS AND COMPLETION
ARTICLE 10:
PROTECTION OF PERSONS AND PROPERTY
ARTICLE 11:
INSURANCE AND BONDS
ARTICLE 12:
UNCOVERING AND CORRECTION OF WORK
ARTICLE 13:
MISCELLANEOUS PROVISIONS
ARTICLE 14:
TERMINATION OF THE CONTRACT
ARTICLE 1:
GENERAL PROVISIONS
1.1
BASIC DEFINITIONS
1.1.1
THE CONTRACT DOCUMENTS
The Contract Documents consist of (1) the executed Contract for Construction Manager at Risk,
(2) these General Conditions of the Contract for Construction Manager at Risk, (3) any
Supplementary Conditions or Special Conditions identified in the Contract for Construction
Manager at Risk, (4) The Project manual identified in the Guaranteed Maximum Price
Amendment, (5) the Drawings identified in the Guaranteed Maximum Price Amendment, (6)
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Addenda issued prior to the receipt of bids, (7) Construction Manager at Risk’s completed
Statement of Qualifications provided in response to the Request for Qualifications, (8)
Construction Manager at Risk’s Performance Bond and Construction Manager at Risk’s Payment
Bond, (9) Notice to Proceed, (10) and any other exhibits and/or post bid adjustments identified
in the contract for Construction, (11) Request for Qualifications, (12) Request for Proposals, (13)
Early Work Amendments, (14) the Guaranteed Maximum Price Amendment, and (15) Change
Orders issued after execution of the Contract.
1.1.2
THE CONTRACT
The Contract Documents form the Contract and are the exclusive statements of agreement
between the parties. The Contract represents the entire and integrated agreement between
the parties hereto and supersedes prior representations or agreements, either written or oral.
The Contract Documents shall not be construed to create a contractual relationship of any kind
between the Owner and a Subcontractor or any lower-tier Subcontractor.
1.1.3
THE WORK
Work shall mean construction and service including: supervision, labor, equipment, tools,
material, supplies, incidentals operations and activities required by the Contract Documents or
reasonably inferable by Construction Manager at Risk there from as necessary to produce the
results intended by the Contract Documents in a safe, expeditious, orderly, and workman like
manner, and in the best manner known to each respective trade. Only work included in the
Contract Documents is authorized, and the Construction Manager at Risk shall do no work other
than that described.
1.1.4
THE PROJECT
The Project is the total construction of which the Work performed under the Contract
Documents may be the whole or a part and which may include construction by the Owner or by
separate Construction Manager at Risks.
1.1.5
THE DRAWINGS
The Drawings herein referred to, consist of drawings prepared by the Architect and are
enumerated in the Contract Documents. Drawings are intended to show general arrangements,
design, and dimensions of work and are partly diagrammatic. Dimensions shall not be
determined by scale or rule.
1.1.6
SPECIFICATIONS AND DRAWINGS
The Specifications are that portion of the Contract Documents consisting of the written
requirements for materials, equipment systems, standards and workmanship and performance
of related services for the Work identified in the Contract for Construction Manager at Risk.
Specifications are separated into titled divisions for convenience of reference only. Organization
of the Specifications into divisions, sections and articles, and arrangement of Drawings shall not
control the Construction Manager at Risk in dividing the Work among Subcontractors or in extent
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of Work to be performed by any trade. Such separation will not operate to make the Owner or
the Architect an arbiter of labor disputes or work agreements.
1.1.7
THE PROJECT MANUAL
The manual prepared by the Architect for the Work, which shall include the Bidding Documents
and the Contract Documents.
1.2
CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
The intent of the Contract Documents is to include all items necessary for the proper execution
and completion of the Work by the Construction Manager at Risk. The Contract Documents are
complementary, and what is required by one shall be as binding as if required by all;
performance by the Construction Manager at Risk shall be required only to the extent
consistent with the Contract Documents and reasonably inferable from them as being necessary
to produce the intended results.
1.2.1
Unless otherwise stated in the Contract Documents, words which have well-known technical or
construction industry meanings are used in the Contract Documents in accordance with such
recognized meanings.
1.2.2
APPROVED
The terms “approved”, “equal to”, “directed”, “required”, “ordered”, “designated”,
“acceptable”, “satisfactory”, and similar words or phrases will be understood to have reference
to action on the part of the Architect and/or the Owner’s Representative.
1.2.3
Data in the Contract Documents concerning lot size, ground elevations, present obstructions on
or near the site, locations and depths of sewers, conduits, pipes, wires, etc., position of
sidewalks, curbs, pavements, etc., and nature of ground and subsurface conditions have been
obtained from sources the Architect believes reliable, but the Architect and Owner do not
represent or warrant that this information is accurate or complete. The Construction Manager
at Risk shall verify such data to the extent possible through normal construction procedures,
including but not limited to contacting utility owners and by prospecting.
1.2.4
OWNER
Central New Mexico Community College. The Owner may act through its Governing Board or
any duly authorized committee or representative thereof.
1.2.5
OWNER’S REPRESENTATIVE
The Owner’s Representative is authorized by the Owner as the administrator of the Contract
and will represent the Owner during the progress of the Work. Communications from the
Architect to the Construction Manager at Risk and from the Construction Manager at Risk to
the Architect shall be as indicated in the Contract Documents.
1.2.6
ARCHITECT
When the term “Architect” is used herein, it shall refer to the Architect or the Engineer specified
and defined in the Contract for Construction Manager at Risk or its duly authorized
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representative. Communications to the Architect/Engineer shall be forwarded to the address
shown in the Contract for Construction.
1.2.7
CONSTRUCTION MANAGER AT RISK OR CMAR
The Construction Manager at Risk is the person or entity, pursuant to a contract with the Owner
provides preconstruction services and construction management required in a construction
manager at risk delivery method.
1.2.8
CONSTRUCTION MANAGER AT RISK DELIVERY METHOD
A construction method for a project wherein a Construction Manager at Risk (CMAR) provides
a range of preconstruction services and construction management including cost estimation
and consultation regarding the design of the building project, preparation and coordination of
the bid packages, scheduling, cost control, value engineering, and, while acting as the General
Contractor during construction, detailing the material supplier and subcontractor’s scopes of
work, pre-qualifying and evaluating material suppliers and subcontractors, holding all contracts
to complete the Work; and providing all necessary management and construction services to
successfully complete the Work within a GMP for which the Construction Manager at Risk is
solely responsible.
1.2.9
SUBCONTRACTOR AND LOWER-TIER SUBCONTRACTORS
A Subcontractor is a person or entity who has a contract with the Construction Manager at Risk
to perform any of the Work. The term “Subcontractor” is referred to throughout the Contract
Documents as if singular in number and means a Subcontractor or its authorized representative.
The term “Subcontractor” also is applicable to those furnishing materials to be incorporated in
the Work whether work performed is at the Owner’s site or off site, or both. A lower-tier
Subcontractor is a person or entity that has a contract with a Subcontractor or another lowertier Subcontractor to perform any of the Work at the site. Nothing contained in the Contract
Documents shall create contractual relationships between the Owner or the Architect and any
Subcontractor or lower-tier Subcontractor of any tier.
1.2.10
DAY
The term “day” as used in the Contract Documents shall mean calendar day unless otherwise
stated.
1.2.11
KNOWLEDGE
The terms “knowledge,” “recognize” and “discover,” their respective derivatives and similar
terms in the Contract Documents, as used in reference to the Construction Manager at Risk,
shall be interpreted to mean that which the Construction Manager at Risk knows or should
know, recognizes or should know, recognizes or should recognize and discovers or should
discover in exercising the care, skill, and diligence of a diligent and prudent Construction
Manager at Risk familiar with the work. Analogously, the expression “reasonably inferable” and
similar terms in the Contract Documents shall be interpreted to mean reasonably inferable by
a diligent and prudent Construction Manager at Risk familiar with the work.
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1.2.12
PUNCH LIST
“Punch list” means the list of items, prepared in connection with the inspection of the Project
by the Owner’s Representative/Architect in connection with Substantial Completion of the
Work or a Portion of the Work, which the Owner’s Representative/Architect has designated as
remaining to be performed, completed or corrected before the Work will be accepted by the
Owner.
1.2.13
CHANGE ORDER
The Contract may be amended or modified without invalidating the Contract, only by a Change
Order, subject to the limitations in Article 7 and elsewhere in the Contract Documents. A change
Order is a written instrument prepared by the Architect and signed by the Owner and the
Construction Manager at Risk stating their agreement to a change in the Work, the amount of
the adjustment to the Contract Sum, if any, and the extent of the adjustment to the Contract
Time, if any. Agreement to 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
of the Contract sum, time and schedule.
1.2.14
SUBSTANTIAL COMPLETION
The terms “Substantial Completion” or “substantially complete” as used herein shall be
construed to mean the completion of the entire Work, including all submittals required under
the Contract Documents, except minor items which in the opinion of the Architect, and/or the
Owner’s Representative will not interfere with the complete and satisfactory use of the facilities
for the purposes intended.
1.2.15
FINAL COMPLETION
The date when all punch list items are completed, including all closeout submittals and approval
by the Architect is given to the Owner in writing.
1.2.16
SUPPLEMENTARY AND SPECIAL CONDITIONS
The terms “Supplementary Conditions” or “Special Conditions” shall mean the part of the
Contract Documents, which amend, supplement, delete from, or add to these General
Conditions.
1.2.17
MINORITY BUSINESS ENTERPRISE
Minority Business Enterprise [MBE] shall mean a business concern which is at least fifty-one
percent (51%) owned by one (1) or more minorities as defined below or, in the case of any
publicly-owned business, in which at least fifty-one percent (51%) of the stock of which is owned
by one (1) or more minorities as defined below, and whose management and daily business
operations are controlled by one (1) or more minorities as defined herein.
1.2.16.1
“African American”, which includes persons having origins in any of the black racial
groups of Africa.
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1.2.16.2
“Hispanic Americans”, which includes persons of Mexican, Puerto Rican, Cuban,
Central or South American, or other Spanish culture or origin, regardless of race.
1.2.16.3
“Native Americans”, which includes persons of American Indian, Eskimo, Aleut, or
Native Hawaiian origin.
1.2.16.4
“Asian-Pacific Americans”, which includes persons whose origins are from Japan,
China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the
U.S Trust territories of the Pacific, or the northern Marinas.
1.2.16.5
“Asian-Indian Americans”, which includes persons whose origins are from India,
Pakistan, or Bangladesh.
1.2.18
WOMEN BUSINESS ENTERPRISE
Women Business Enterprise [WBE] shall mean a business concern which is at least fifty-one
percent (51%) owned by one (1) or more women or, in the case of any publicly-owned business,
in which at least fifty-one percent (51%) of the stock of which is owned by one (1) or more
women, and whose management and daily business operations are controlled by one (1) or
more women.
1.2.19
BUILDING COMMISSIONING
Building Commissioning shall mean the verification by Owner or its separate Contractors that
building systems are installed in accordance with the plans and specifications and will meet the
minimum operational and environmental characteristics indicated in the Contract Documents,
commissioning plan and submittals. Building Commissioning shall be conducted in accordance
with the commissioning plan. Construction Manager at Risk support of the Building
Commissioning, where required, shall be a part of the Work of this Contract.
1.3
INTERPRETATION OF CONTRACT REQUIREMENTS
1.3.1
Conflicts: In the event of conflict in the Contract Documents, the priorities stated below shall
govern.
1.3.1.1
Addenda shall govern over all other Contract Documents and subsequent addenda
shall govern over prior addenda only to the extent modified.
1.3.1.2
In case of conflict between plans and specifications, the specifications shall govern.
1.3.1.3
Conflicts within the plans:
a)
b)
c)
d)
Schedules, when identified as such, shall govern over all other portions of
the plans.
Specific notes shall govern over all other notes and all other portions of the
plans except the schedules described in Article 1.3.1.3 (a), above.
Larger scale drawing shall govern over smaller scale drawings.
Figured or numerical dimensions shall govern over dimensions obtained by
scaling.
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1.3.1.4
Conflicts within the specifications:
“General Conditions for the Contract for Construction Manager at Risk” shall govern
over all sections of the specifications except for specific modifications thereto that
may be stated in the Supplementary General Conditions or addenda. No other
section of the specifications shall modify the Contract General Conditions.
1.3.1.5
1.3.1
In the event that provisions of codes, safety orders, Contract Documents,
referenced manufacturers specifications or industry standards are in conflict, the
more restrictive or higher quality shall govern.
Omissions: In the event of omissions in the Contract Documents, the following shall apply:
1.3.2.1
1.3.2.2
If the Contract Documents are not complete as to any minor detail of a required
construction system or with regard to the manner of combining or installing of
parts, materials, or equipment, but there exists an accepted trade standard for
good and skillful construction, such detail shall be deemed to be an implied
requirement of the Contract Documents in accordance with such standard. “Minor
Detail” shall include the concept of substantially identical components, where the
price of each such component is small even through the aggregate cost or
importance is substantial, and shall include a single component that is incidental,
even though its cost or importance may be substantial.
The quality and quantity of the parts or material so supplied shall conform to trade
standards and be compatible with the type, composition, strength, size, and profile
of the parts of materials otherwise set forth in the Contract Documents.
1.4
EXECUTION OR CONTRACT DOCUMENTS
1.4.1
Execution of the Contract by the Construction Manager at Risk is a representation and warranty
to Owner that the Construction Manager at Risk has visited the site, become familiar with local
conditions under which the Work is to be performed and correlated personal observations with
requirements of the Contract Documents. Construction Manager at Risk represents and
warrants to Owner that Construction Manager at Risk has performed its own investigation and
examination of the Work site and the surrounding areas and satisfied itself before entering into
this contract as to:
1.4.1.1
conditions bearing upon transportation, disposal, handling, and storage of
materials;
1.4.1.2
the availability of labor, materials, equipment, water, electrical power, utilities and
roads;
1.4.1.3
uncertainties of weather, river stages, flooding and similar characteristics of the
site; Documents.
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1.4.1.4
conditions bearing upon security and protection of material, equipment, and Work
in progress;
1.4.1.5
the form and nature of the Work site, including the surface and sub-surface
conditions;
1.4.1.6
the extent and nature of Work and materials necessary for the execution of the
Work and the remedying of any defects therein; and
1.4.1.7
the means of access to the site and the accommodations it may require and, in
general, shall be deemed to have obtained all information as to risks, contingencies
and other circumstances.
1.4.2
The Owner assumes no responsibility or liability for the physical conditions or safety of the Work
site of any improvements located on the Work site. The Construction Manager at Risk shall be
solely responsible for providing a safe place for the performance of the work. The Owner shall
not be required to make any adjustment in either the contract Sum or Contract Time concerning
any failure by the Construction Manager at Risk or any Subcontractor to comply with the
requirements of this Paragraph.
1.4.3
Drawings, specifications, and copies thereof furnished by the Owner are and shall remain the
Owner’s property. They are not to be used on another project and, with the exception of one
contract set for each party to the Contract, shall be returned to the Owner’s Representative on
request, at the completion of the Work.
1.4.4
REQUIRED PROVISIONS DEEMED INSERTED
Each and every provision of law and clause required by law to be inserted in this Contract shall
be read and enforced as though it were included herein; and if through mistake or otherwise
any such provision is not inserted, or is not correctly inserted, then upon the written application
of either party the Contract shall forthwith be physically amended to make such insertion or
correction.
1.5
1.5.1
DRAWINGS, SPECIFICATIONS, AND OTHER DOCUMENTS INSTRUMENTS OF SERVICE
In the event of inconsistencies within or between parts of the Contract Documents, or between
the Contract Documents and applicable standards, codes and ordinances, the Construction
Manager at Risk shall (1) provide the better quality or greater quantity of Work or (2) comply
with the more stringent requirement; either or both in accordance with the Owner’s
Representative’s interpretation. On the Drawings, given dimensions shall take precedence over
scaled measurements and large scale drawings over small-scale drawings. Before ordering any
materials or doing any Work, the Construction Manager at Risk and each Subcontractor shall
verify measurements at the Work site and shall be responsible for the correctness of such
measurements. Any difference, which may be found, shall be submitted to the Owner’s
Representative and Architect for resolution before proceeding with the Work. If a minor change
in the Work is found necessary due to actual field conditions, the Construction Manager at Risk
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shall submit detailed drawings of such departure for the approval by the Owner’s
Representative and Architect before making the change.
ARTICLE 2:
OWNER
2.1
2.1.1
GENERAL
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, 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 Construction Manager at Risk within 15 days after receipt of a
written request, information necessary and relevant for the Construction Manager at Risk to
evaluate, give notice of or enforce mechanic’s lien rights.
2.2
2.2.1
INFORMATION AND SERVICES REQUIRED OF THE OWNER
Except for permits and fees which are the responsibility of the Construction Manager at Risk
under the Contract Documents, the Owner shall secure and pay for necessary approvals,
easements, test and balance, assessments and charges required for construction, use or
occupancy of permanent structures or for permanent changes in existing facilities.
2.2.2
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. Data in the Contract
Documents concerning lot size, ground elevations, present obstructions on or near the site,
locations and depths of sewers, conduits, pipes, wires, etc., position of sidewalks, curbs,
pavements, etc., and nature of ground and subsurface conditions have been obtained from
sources the Architect believes reliable, but the Architect and Owner do not represent or warrant
that this information is accurate or complete. The Construction Manager at Risk shall verify
such data to the extent possible through normal construction procedures, including but not
limited to contracting utility owners and by prospecting.
2.2.3
Information or services required of the Owner by the Contract Documents shall be furnished by
the Owner with reasonable promptness. Any other information or services relevant to the
Construction Manager at Risk’s performance of the Work under the Owner’s control shall be
furnished by the Owner after receipt from the Construction Manager at Risk of a written request
for such information or services.
2.2.4
Unless otherwise provided in the Contract Documents, the Construction Manager at Risk will
be furnished, free of charge, such copies of Drawings and Project manuals as are reasonably
necessary for execution of the Work.
2.3
OWNER’S RIGHT TO STOP THE WORK
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2.3.1
If the Construction Manager at Risk fails to perform or correct Work which is not in accordance
with the requirements of the Contract Documents, fails to supply adequate working force
(number and skill level), fails to supply material of proper quality, or fails to carry out Work in
accordance with the Contract Documents, the Owner may issue a written order to the
Construction Manager at Risk 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 Construction
Manager at Risk or any other person or entity except to the extent required by Subparagraph
6.1.3.
2.4
2.4.1
OWNER’S RIGHT TO CARRY OUT THE WORK
If the Construction Manager at Risk defaults or neglects to carry out the Work in accordance
with the Contract Documents and fails within a seven (7) day period after receipt of a written
notice from the Owner to correct such default or neglect, the Owner may, without prejudice to
other remedies the Owner may have, correct such default or neglect. In such case, an
appropriate Change Order shall be issued deducting from payments then or thereafter due the
Construction Manager at Risk the cost of correcting such deficiencies, including compensation
for the Architect’s additional services and expenses made necessary by such default or neglect.
If payments then or thereafter due the Construction Manager at Risk are not sufficient to cover
such amounts, the Construction Manager at Risk shall pay the differences to Owner.
2.4.2
In the event the Construction Manager at Risk has not satisfactorily completed all items on the
Punch List within thirty (30) days of its receipt, or by the Final Completion Date, whichever is
latest, the Owner reserves the right to complete the Punch List without further notice to the
Construction Manager at Risk or its surety. In such case, Owner shall be entitled to deduct from
payments then or thereafter due the Construction Manager at Risk the cost of completing the
Punch List items, including compensation for the Architect’s additional services. If payments
then or thereafter due Construction Manager at Risk are not sufficient to cover such amounts,
the Construction Manager at Risk shall pay the difference to Owner upon demand by Owner.
2.5
2.5.1
EXTENT OF OWNER’S RIGHTS
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 (1) granted in the Contract Documents, (2) at law or
(3) in equity.
2.5.2
In no event shall the Owner have control over, charge of, or any responsibility for construction
means, methods, techniques, sequences or procedures or for safety precautions and programs
in connection with the Work, notwithstanding any of the rights and authority granted the
Owner in the Contract Documents.
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ARTICLE 3:
CONSTRUCTION MANAGER AT RISK
3.1
3.1.1
GENERAL
The Construction Manager at Risk is the person or entity identified as such in the Agreement
and is referred to throughout the Contract Documents as if singular in number.
3.1.2
The Construction Manager at Risk shall perform the Work in accordance with the Contract
Documents.
3.1.3
The Construction Manager at Risk shall not be relieved of obligations to perform the Work in
accordance with the Contract Documents either by activities or duties of the Architect and
Owner in the Architect or Owner’s administration of the Contract, or by tests, inspections or
approvals required or performed by persons other than the Construction Manager at Risk.
3.1.4
During the progress of the Work, Construction Manager at Risk shall verify all field
measurements prior to fabrication of building components or equipment, and proceed with the
fabrication to meet field conditions. Construction Manager at Risk shall prepare coordination
drawings to ensure the proper fitting of the Work in place. Construction Manager at Risk shall
consult all Contract Documents to determine the exact location of all work and verify spatial
relationships to all work. Any question concerning the location or spatial relationship shall be
submitted to the Owner and Architect. Specific locations for equipment, pipelines, ductwork
and other such items of work, where not dimensioned on plans, shall be determined in
consultation with the Owner.
3.2
REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONSTRUCTION MANAGER
AT RISK
Since the Contract Documents are complementary, before starting each portion of the Work,
the Construction Manager at Risk shall carefully study and compare the various Construction
Manager at Risk’s coordination drawings as required and other Contract Documents relative to
that portion of the Work, as well as the information furnished by the Owner pursuant to
Subparagraph 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. These obligations
are for the purpose of facilitating construction by the Construction Manager at Risk and are not
for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents;
however, any errors, inconsistencies or omissions discovered by the Construction Manager at
Risk shall be reported promptly, so as not to delay progress of the work, to the Architect and
Owner as a request for information in such form as the Architect and Owner may require. If the
Construction Manager at Risk performs any construction activity which it knows or should have
known involves a recognized error, inconsistency or omission in the Contract Documents
without such written notice to the Owner, the Construction Manager at Risk shall assume
appropriate responsibility for such performance and shall bear an appropriate amount of the
attributable costs for correction.
3.2.1
3.2.2
The Construction Manager at Risk shall be responsible for preparing construction coordination
and construction assembly drawings to plan the Work and proper fitting of the Work. The
Construction Manager at Risk shall coordinate all construction operations, all subcontractors,
all material suppliers, and all work for this project to insure the efficient and orderly installation
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of all work so as to produce a high quality project that complies with the Contract Documents.
Specific locations for partitions, structure, equipment, pipelines, ductwork, and all other such
items of Work, both above ceilings, below slabs and in the useable spaces shall be indicated.
The best sequence of Work shall be considered. During the process of preparing the drawings,
the Construction Manager at Risk shall verify all field dimensions and measurements prior to
fabricating and installation of Work. The Construction Manager at Risk shall consult all Contract
Documents to determine the location of all Work and to verify spatial relationships of the Work.
The purpose of assembling these drawings is to coordinate the location and installation
sequence of Work, to avoid waste and loss, but not to perform design functions. Any questions
and conflicts shall be brought to the attention of the Owner and Architect for resolution before
Work proceeds. Reasonable time for this Work shall be included in the Contract Time.
3.2.3
Any design inconsistencies, errors or omissions noted by the Construction Manager at Risk
during this review shall be reported promptly, so as not to delay the progress of the Work, to
the Architect and Owner, but it is recognized that the Construction Manager at Risk’s review is
made in the Construction Manager at Risk’s capacity as a Construction Manager at Risk and not
as a licensed design professional unless otherwise specifically provided in the Contract
Documents. The Construction Manager at Risk is not required, but shall use best efforts to
ascertain that the Contract Documents are in accordance with applicable laws, statutes,
ordinances, building codes, and rules and regulations, but any nonconformity discovered by or
made known to the Construction Manager at Risk shall be reported promptly to the Architect
and Owner.
3.2.4
If the Construction Manager at Risk performs any construction activity which it knows involves
a recognized error, inconsistency, or omission in the Contract Documents without such written
notice to the Owner and Architect, the Construction Manager at Risk shall assume appropriate
responsibility for such performance and shall bear an appropriate amount of the attributable
costs for correction. The Construction Manager at Risk shall not be liable to the Owner or
Architect for damages resulting from errors, inconsistencies or omissions in the Contract
Documents or for differences between field measurements or conditions and the Contract
Documents unless the Construction Manager at Risk recognized such error, inconsistency,
omission or difference and knowingly failed to report it to the Architect and Owner.
3.2.5
If the Construction Manager at Risk believes that additional cost or time is involved because of
clarifications or instructions issued by the Architect in response to the Construction Manager at
Risk’s notices or requests for information, the Construction Manager at Risk shall make Claims.
If the Construction Manager at Risk fails to perform the obligations of Subparagraphs 3.2.1 and
3.2.2 and 3.2.3, the Construction Manager at Risk shall pay such costs and damages to the
Owner as would have been avoided if the Construction Manager at Risk had performed such
obligations.
3.3
3.3.1
SUPERVISION AND CONSTRUCTION PROCEDURES
The Construction Manager at Risk shall supervise and direct the Work, using the Construction
Manager at Risk’s best skill and attention. The Construction Manager at Risk shall be solely
responsible for job site safety, and have control over construction means, methods, techniques,
sequences and procedures and for coordinating all portions of the Work under the Contract,
unless the Contract Documents give other specific instructions concerning these matters. If the
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Contract Documents give specific instructions concerning construction means, methods,
techniques, sequences or procedures, the Construction Manager at Risk shall evaluate the job
site safety and, shall be fully and solely responsible for the jobsite safety of such means,
methods, techniques, sequences or procedures. If the Construction Manager at Risk
determines that such means, methods, techniques, sequences or procedures may not be safe,
the Construction Manager at Risk 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 Architect. If the Construction Manager at Risk is then instructed to proceed with
the required means, methods, techniques, sequences or procedures without acceptance of
changes proposed by the Construction Manager at Risk, the Owner shall be solely responsible
for any resulting loss or damage.
3.3.2
The Construction Manager at Risk shall be responsible to the Owner for acts and omissions of
the Construction Manager at Risk’s employees, Subcontractors and their agents and employees,
and other persons or entities performing portions of the Work for or on behalf of the
Construction Manager at Risk or any of its Subcontractors. The Construction Manager at Risk
shall supply sufficient and competent supervision and personnel, and sufficient material, plant,
and equipment to prosecute the Work with diligence to ensure completion within the time
specified in the Contract Documents.
3.3.3
The Construction Manager at Risk shall be represented at the site by a competent
superintendent from the beginning of the Work, who shall not be reassigned until its final
acceptance, unless otherwise permitted in writing by the Owner. The superintendent for the
Construction Manager at Risk shall exercise general supervision over the Work and such
superintendent shall have decision-making authority of the Construction Manager at Risk.
3.3.4
Communications given to the superintendent shall be binding as if given to the Construction
Manager at Risk. These communications shall be provided in writing to the superintendent, with
a copy to the Construction Manager at Risk.
3.3.5
The Construction Manager at Risk shall be responsible for inspection of portions of Work
already performed to determine that such portions are in proper condition to receive
subsequent Work.
3.3.6
The Construction Manager at Risk’s scheduled outage/tie-in plan, time, and date is subject to
approval by the Owner. Failure of Construction Manager at Risk to secure Owner’s approval
shall cause the Construction Manager at Risk to waive any right to an adjustment of the Contract
Sum or Contract Time for any postponement, rescheduling or other delays ordered by Owner
in connection with such Work. Owner’s approval shall not be unreasonably withheld.
3.3.7
The Construction Manager at Risk shall coordinate all Work so there shall be no prolonged
interruption of existing utilities, systems and equipment of Owner. Any existing plumbing,
heating, ventilating, air conditioning, or electrical disconnection necessary, which affect portions
of this construction or building or any other building, must be scheduled with the Owner to avoid
any disruption of operation within the building under construction or other buildings or utilities.
In no case shall utilities be left disconnected at the end of a workday or over a weekend. Any
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interruption of utilities, either intentionally or accidentally, shall not relieve the Construction
Manager at Risk from repairing and restoring the utility to normal service. Repairs and
restoration shall be made before the workers responsible for the repair and restoration leave the
job.
3.3.8
The Construction Manager at Risk shall be responsible for repair of damage to property caused
by the Construction Manager at Risk on or off the project occurring during construction of the
project, and all such repairs shall be made to meet code requirements or to the satisfaction of
the Owner if code is not applicable, if possible, given the availability of parts, equipment and
services necessary to effect the repair/restoration. Cost of expediting repair/restoration shall
be the Construction Manager at Risk’s provided the cause of the accidental interruption is the
Construction Manager at Risk or anyone directly or indirectly employed by Construction
Manager at Risk, or by anyone for whose acts Construction Manager at Risk may be liable.
3.4
3.4.1
USE OF SITE
The Construction Manager at Risk shall limit operations and storage of material to the area
within the Work limit lines shown on Drawings, except as necessary to connect to existing
utilities, shall not encroach on neighboring property, and shall exercise caution to prevent
damage to existing structures.
3.4.2
The Construction Manager at Risk shall ensure that the Work is at all times performed in a
manner that affords reasonable access, both vehicular and pedestrian, to the site of the Work
and all adjacent areas. The Work shall be performed in such a manner that public areas adjacent
to the site of the Work shall be free from all debris, building materials and equipment likely to
cause hazardous conditions. Without limitations of any other provision of the Contract
Documents, Construction Manager at Risk shall not interfere with the occupancy or beneficial
use of (1) any areas and buildings adjacent to the site of the Work or (2) the work in the event
of partial occupancy. Owner may agree, in writing, to disruption of adjacent buildings, if
necessary to properly perform the Work. Construction Manager at Risk shall assume full
responsibility for any damage to the property comprising the work or to the owner or occupant
of any adjacent land or areas resulting from the performance of the Work.
3.4.3
The Construction Manager at Risk shall not permit any workers to use existing facilities at the
Work site, including, without limitation, lavatories, toilets, entrances, and parking areas other
than those designated by Owner. The Construction Manager at Risk, Subcontractors of any tier,
suppliers and employees shall comply with instructions or regulations of the Owner’s governing
access to, operation of, and conduct while in or on the premises and shall perform all Work
required under the Contract Documents in such a manner as not to unreasonably interrupt or
interfere with the conduct of Owner’s operations. Any request for Work, a suspension of Work
or any other request or directive received by the Construction Manager at Risk from occupants
of existing buildings shall be referred to the Owner for determination.
3.4.4
The Construction Manager at Risk shall keep the Work site and surrounding areas free from
accumulation of waste materials, rubbish, debris, and dirt resulting from the Work and shall
clean the Work site and surrounding areas as requested by the Owner. The Construction
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Manager at Risk shall be responsible for cleanup and removal of debris from premises. The
building and premises shall be kept clean, safe, in workmanlike manner, in compliance with
OSHA standards at all times. At completion of the Work, the Construction Manager at Risk shall
remove from and about the Work site tools, construction equipment, machinery, fencing, and
surplus materials. Further, at the completion of the work, all dirt, stains, and smudges shall be
removed from every part of the building, all glass in doors and windows shall be washed, and
entire Work shall be left broom clean in a finished state ready for occupancy. If the Construction
Manager at Risk fails to comply with the provisions of this paragraph, the Owner may do so,
after written notice to the Construction Manager at Risk and Construction Manager at Risk shall
pay the Owner, upon demand by Owner, the costs incurred by the Owner in performing the
Construction Manager at Risk’s obligations under this Subsection 3.4.4.
3.5
3.5.1
LABOR AND MATERIALS
Unless otherwise provided in the Contract Documents, the Construction Manager at Risk 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.
3.5.2
The Construction Manager at Risk may make substitutions only with the consent of the Owner,
after evaluation by the Architect and in accordance with a Change Order, as set forth in Section
3.13.
3.5.3
The Construction Manager at Risk shall enforce strict discipline and good order among the
Construction Manager at Risk’s employees and other persons carrying out the Contract. The
Construction Manager at Risk shall not permit employment of unfit persons or persons not
skilled in tasks assigned to them.
3.6
3.6.1
WARRANTY
The Construction Manager at Risk warrants that all parts, materials, components, equipment,
systems and other items incorporated into the Work will be new, unless otherwise specified
and suitable for the purpose used and will be of good quality, free from faults and defects and
in conformance with the Contract Documents. The Construction Manager at Risk also warrants
that its workers will be sufficiently skilled to produce quality Work that is free of faults and
defects. Work not conforming to these requirements, including substitutions not properly
approved and authorized, may be considered defective. The Construction Manager at Risk,
when requested, will furnish the Owner with satisfactory evidence of the kind and quality of
materials and equipment proposed to be incorporated into the Work. The Construction
Manager at Risk further warrants that the construction processes and methods employed to
perform the Work will have in the past proven to be suitable for the results expected. If the
Construction Manager at Risk proposes to use unproved or untried processes, products or
methods, the Project Representative must be advised of that proposal, in writing, before using
the proposed process. The Owner may permit such experimentation, and it may require special
guarantees of the Construction Manager at Risk to cover the Work produced by any new and
untried process, method or product.
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3.6.2
The Construction Manager at Risk further warrants that it has full title to all parts, materials,
components, equipment and other items conveyed to the Owner under the terms of the
Contract, that its transfer of such title to the Owner is rightful and that all such parts, materials,
components, equipment and other items will be transferred free and clear from all security
interests, liens, claims, or encumbrances whatsoever. The Construction Manager at Risk agrees
to warrant and defend such title against all persons claiming the whole or any part thereof, at
no cost to the Owner.
3.6.3
The Construction Manager at Risk will promptly investigate, repair, replace or otherwise correct
any of its workmanship and any parts, materials, components, equipment or other items in the
Work that contain faults or defects whether such failures are observed by the Owner or
Construction Manager at Risk at any time during the Contract Time or during the warranty and
guarantee period. The Construction Manager at Risk will bear all costs of investigating and
correcting, which includes the design efforts necessary to correct such Work covered by the
warranties and guarantees described in this Section 3 or elsewhere in the Contract Documents.
If repair or replacement of faulty items of the Work is necessary, proper temporary substitutes
will be provided by the Construction Manager at Risk in order to maintain the progress of the
Work and/or keep systems operating without any additional costs to the Owner. The
obligations of this Section 3 will survive termination of the Contract. Nothing herein will limit
the Owner’s right to seek recovery for latent defects that are not observable until after the
warranty or guarantee periods have run.
3.6.4
The Construction Manager at Risk’s warranties and guarantees for all Work components will
continue for a period of one (1) year after the date of Substantial Completion, or for such longer
period of time as may be prescribed by the terms of any special warranties and guarantees
required by the Contract Documents.
3.6.5
Nothing contained in this Section 3 will be construed to establish a period of limitation with
respect to any other obligation that the Construction Manager at Risk might have under the
Contract Documents. The establishment of the warranty periods set forth above relates only
to the specific obligation of the Construction Manager at Risk to correct the Work, and has no
relationship to the time within which its 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 Construction Manager at Risk’s liability with respect to its obligations and resulting
damages other than specifically to correct the Work.
3.6.6
The Construction Manager at Risk, at its own expense, will also investigate, repair or replace
any damages to any equipment, facilities or other personal or real property owned or leased by
the Owner that is damaged as a result of any fault or defect in the Work, at no cost to the
Owner.
3.6.7
All Subcontractors’, Sub-subcontractors’, manufacturers’, and suppliers’ warranties and
guarantees, express or implied, for any part of the Work and any materials used therein will be
obtained and enforced by the Construction Manager at Risk for the benefit of the Owner
whether or not these warranties and guarantees have been assigned or otherwise transferred
to the Owner. The Construction Manager at Risk will assign or transfer such warranties and
guarantees to the Owner if the Owner requests the Construction Manager at Risk to do so, but
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such transfer will not affect the Construction Manager at Risk’s obligation to enforce such
warranties and guarantees.
3.6.8
The Construction Manager at Risk will specifically stipulate in all Subcontractor or Supplier
contracts and purchase order forms for all materials and systems that the guarantee period
begins with the date of Substantial Completion. The Construction Manager at Risk will, during
the course of the Work, specifically instruct Subcontractors and Suppliers that all written
guarantees, that are due to be submitted to the Owner, will indicate the initiation of the
guarantee period as being the date of Substantial Completion.
3.6.9
Neither the final payment nor any provision in the Contract Documents nor partial or entire
occupancy of the premises by the Owner, nor expiration of warranty stated herein, will
constitute an acceptance of Work not done in accordance with the Contract Documents or
relieve the Construction Manager at Risk of liability in respect to any responsibility for nonconforming work.
3.7
3.7.1
TAXES
The Construction Manager at Risk shall pay sales, consumer, use and similar taxes for the Work
provided by the Construction Manager at Risk which is legally enacted when bids are received
or negotiations concluded, whether or not yet effective or merely scheduled to go into effect.
3.7.2
The Construction Manager at Risk will comply with the requirements of the State of New Mexico
Gross Receipts Tax Law and all amendments to same and will require all subcontractors to
comply with the same.
3.8
3.8.1
PERMITS, FEES, AND NOTICES
The Construction Manager at Risk will procure all certificates of inspection, use occupancy,
permits and licenses, pay all charges and fees and give all notices necessary and incidental to
the due and lawful prosecution of the Work. Certificates of inspection, use and occupancy will
be delivered to the Owner upon completion of the Work in sufficient time for occupation of the
Project in accordance with the approved schedule for the Work. A photocopy of the building
permit will be delivered to the Architect and Owner as soon as it is obtained. Upon final
completion, the Construction Manager at Risk will deliver all original permits, licenses, and
certificates to the Owner and will deliver photocopies to the Architect. The costs of such
procurement, payment and delivery are included within the Contract Sum. If a change Order
affects any applicable Building Codes for the Project, new drawings will be submitted by the
Construction Manager at Risk to proper authorities for approval. The Construction Manager at
Risk will alert the Architect of the need for additional drawings if the Construction Manager at
Risk knows that additional drawings will be needed to submit to appropriate governmental
authorities for approval.
3.8.2
The Construction Manager at Risk shall comply with and give notices required by laws,
regulations and lawful orders of public authorities applicable to performance of the Work.
3.8.3
It is not the Construction Manager at Risk’s responsibility to ascertain that the Contract
Documents are in accordance with applicable laws, statutes, ordinances, building codes, and
rules and regulations. However, if the Construction Manager at Risk observes that portions of
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the Contract Documents are at variance therewith, the Construction Manager at Risk shall
promptly, so as not to delay the progress of the Work, notify the Owner in writing, and
necessary changes shall be accomplished by appropriate Modification.
3.8.4
If the Construction Manager at Risk performs Work knowing it to be contrary to laws, statutes,
ordinances, building codes, and rules and regulations without such notice to the Owner, the
Construction Manager at Risk shall assume full responsibility for such Work and shall bear the
costs attributable to correction.
3.9
3.9.1
ALLOWANCES
The Construction Manager at Risk shall include in the Contract Sum all allowances stated in the
Contract Documents. Items covered by allowances shall be supplied for such amounts and by
such persons or entities as the Owner may direct, but the Construction Manager at Risk shall
not be required to employ persons or entities to whom the Construction Manager at Risk has
reasonable objection.
3.9.2
Unless otherwise provided in the Contract Documents:
3.9.2.1
Allowances shall cover the cost to the Construction Manager at Risk of materials
and equipment delivered at the site and all required taxes, less applicable trade
discount;
3.9.2.2
Construction Manager at Risk’s costs for unloading and handling at the site, labor,
installation costs, overhead, profit, and other expenses contemplated for stated
allowance amounts shall be included in the Contract Sum but not in the allowances;
3.9.2.3
Whenever costs are more than or less than allowances, the Contract Sum shall be
adjusted accordingly by Change Order. The amount of the Change Order shall
reflect (1) the difference between actual cost and the allowances under Clause
3.9.2.1 and (2) changes in Construction Manager at Risk’s costs under Clause
3.9.2.2.
3.9.3
Materials and equipment under an allowance shall be selected by the Owner in sufficient time
to avoid delay in the Work.
3.10
3.10.1
CONSTRUCTION MANAGER AT RISK’S CONSTRUCTION SCHEDULES
The Construction Manager at Risk, within fifteen (15) days after issuance of Notice to Proceed,
shall prepare and submit for the Owner and Architect’s information a Construction Manager at
Risk’s construction schedule for the Work. The schedule shall not exceed time limits current
under the Contract Documents, shall be revised at appropriate intervals as required by the
conditions of the Work and Project, shall include a critical path schedule, shall be related to the
entire Project to the extent required by the Contract Documents, and shall provide for
expeditious and practicable execution of the Work.
3.10.2
The Construction Manager at Risk shall prepare and keep current, for the Architect’s approval,
a schedule of submittals that is coordinated with the Construction Manager at Risk’s
construction schedule and allows the Architect reasonable time to review submittals.
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3.10.3
The Construction Manager at Risk shall perform the Work in general accordance with the most
recent schedules submitted to the Owner and Architect.
3.10.4
In the event the Owner determines that the performance of the Work, as of a Owner specified
completion date as identified in the Construction Documents , is not progressing or reached the
level of completion required by the Contract Documents, the Owner shall have the right to order
the Construction Manager at Risk 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, facilities, (3) expediting delivery of materials,
and (4) other similar measures. Such corrective measures shall continue until the progress of
the Work complies with the stage of completion required by the Construction Documents. The
Owner’s right to require corrective measures is solely for the purpose of ensuring the
Construction Manager at Risk’s compliance with the construction schedule. The Construction
Manager at Risk shall not be entitled to an adjustment in the Contract Sum specific to these
corrective measures.
3.11
3.11.1
DOCUMENTS AND SAMPLES AT THE SITE
The Construction Manager at Risk 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.
3.12
3.12.1
SHOP DRAWINGS, PRODUCT DATA, AND SAMPLES
Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the
Work by the Construction Manager at Risk 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 Construction Manager at Risk to illustrate
materials or equipment for some portion of the Work.
3.12.3
Samples are physical examples, which 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. The
purpose of their submittal is to demonstrate for those portions of the Work for which submittals
are required by the Contract Documents the way by which the Construction Manager at Risk
proposes to conform to the information given and the design concept expressed in the Contract
Documents. Informational submittals upon which the Architect is not expected to take
responsive action may be so identified in the Contract Documents. Submittals which are not
required by the Contract Documents may be returned by the Architect without action.
3.12.5
The Construction Manager at Risk shall review for compliance with the Contract Drawings,
approve and submit to the Architect Shop Drawings, Product Data, Samples and similar
submittals required by the Contract Documents with reasonable promptness and in such
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sequence as to cause no delay in the Work or in the activities of the Owner or of separate
Construction Manager at Risks. Submittals which are not marked as reviewed for compliance
with the Contract Documents and approved by the Construction Manager at Risk may be
returned by the Architect without action.
3.12.6
By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the
Construction Manager at Risk represents that the Construction Manager at Risk has determined
and verified materials, field measurements and field construction criteria related thereto, or
will do so, and has checked and coordinated the information contained within such submittals
with the requirements of the Work and of the Contract Drawings.
3.12.7
The Construction Manager at Risk 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 Construction
Manager at Risk 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 Contract 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 Construction Manager at Risk 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 Construction Manager at Risk 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 Construction Manager at Risk shall not be required to provide professional services which
constitute the practice of Architecture or engineering unless such services are specifically
required by the Contract Documents for a portion of the work or unless the Construction
Manager at Risk needs to provide such services in order to carry out the Construction Manager
at Risk’s responsibilities for construction means, methods, techniques, sequences and
procedures. The Construction Manager at Risk shall not be required to provide professional
services in violation of applicable law. If professional design services or certification by a design
professional related to systems, materials or equipment are specifically required of the
Construction Manager at Risk by the Contract Documents, the Owner and the Architect will
specify all performance and design criteria that such services must satisfy. The Construction
Manager at Risk 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
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by such design professionals, provided the Owner and the Architect have specified to the
Construction Manager at Risk all performance and design criteria that such services must satisfy.
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 Construction Manager at Risk shall not be
responsible for the adequacy of the performance or design criteria required by the Contract
Documents.
3.13
3.13.1
SUBSTITUTIONS
A substitution is a Construction Manager at Risk proposal of an alternate product or method in
lieu of has been specified or shown in the Contract Documents.
3.13.2
Construction Manager at Risk may make a proposal to the Architect and the Owner’s
Representative to use substitute products or methods as set forth herein, but the Architect’s
and the Owner’s Representative’s decision concerning acceptance of a substitute shall be final.
The Construction Manager at Risk must do so in writing and setting forth the following:
3.13.2.1
Full explanation of the proposed substitution and submittal of all supporting data
including technical information, catalog cuts, warranties, test results, installation
instructions, operating procedures, and other like information necessary for a
complete evaluation of the substitution.
3.13.2.2
Reasons the substitution is advantageous and necessary, including the benefits to
the Owner and the Work in the event the substitution is acceptable.
3.13.2.3
The adjustment, if any, in the Contract Sum, in the event the substitution is
acceptable.
3.13.2.4
The adjustment, if any, in the time of completion of the Contract and the
construction schedule in the event the substitution is acceptable.
3.13.2.5
Proposals for substitutions shall be submitted to the Architect and the Owner in
sufficient time to allow the Architect and Owner no less than ten (10) days for
review. No substitution will be considered or allowed without the Construction
Manager at Risk’s submittal of complete substantiating data and information as
stated herein.
3.13.3
Substitutions may be rejected at the Owner’s sole discretion
3.13.4
Whether or not any proposed substitution is accepted by the Owner, the Construction Manager
at Risk shall reimburse the Owner for any additional service fees charged by the Architect or
other consultants for evaluating each proposed substitute if the substitution is made after the
submittal process has been completed.
3.14
3.14.1
CUTTING AND PATCHING
The Construction Manager at Risk shall be responsible for cutting, fitting or patching required
to complete the Work or to make its parts fit together properly.
3.14.2
The Construction Manager at Risk shall not damage or endanger a portion of the Work or fully
or partially completed construction by the Owner or separate Construction Manager at Risks by
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cutting, patching or otherwise altering such construction, or by excavation. The Construction
Manager at Risk shall not cut or otherwise alter such construction by the Owner or a separate
Construction Manager at Risk except with written consent of the Owner and of such separate
Construction Manager at Risk; such consent shall not be unreasonably withheld. The
Construction Manager at Risk shall not unreasonably withhold from the Owner or a separate
Contractor the Construction Manager at Risk’s consent to cutting or otherwise altering the
Work.
3.15
3.15.1
ROYALTIES, PATENTS, AND COPYRIGHTS
The Construction Manager at Risk shall pay all royalties and license fees. The Construction
Manager at Risk shall defend suits or claims for infringement of copyrights and patent rights
and shall hold the Owner and Architect 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 Construction Manager at Risk has reason to believe that the
required design, process or product is an infringement of a copyright or a patent, the
Construction Manager at Risk shall be responsible for such loss unless such information is
promptly furnished to the Architect.
3.16
RESERVED
3.17
3.17.1
REPRESENTATIONS AND WARRANTIES
The Construction Manager at Risk represents and warrants the following to the Owner (in
addition to the other representations and warranties contained in the Contract Documents), as
an inducement to the Owner to execute the Owner-Construction Manager at Risk Agreement,
which representations and warranties will survive the execution and delivery of the OwnerConstruction Manager at Risk Agreement and the final completion of the Work:
(a) that the Construction Manager at Risk is financially solvent, able to pay his debts as they
mature and possessed of sufficient working capital to complete the Work and perform
Construction Manager at Risk’s obligations under the Contract Documents;
(b) that the Construction Manager at Risk is able to furnish the plant, tools, materials,
supplies, equipment and labor required to complete the Work and perform Construction
Manager at Risk’s obligations hereunder and has sufficient experience and competence
to do so;
(c) that the Construction Manager at Risk is authorized to do business in the State of New
Mexico where the Project is located and properly licensed by all necessary governmental
and public and quasi-public authorities having jurisdiction over the Construction Manager
at Risk and over the Work and the site of the Project;
(d) that Construction Manager at Risk’s execution of the Owner-Construction Manager at
Risk Agreement and Construction Manager at Risk’s performance thereof is within
Construction Manager at Risk’s duly authorized powers; and
(e) that Construction Manager at Risk’s duly authorized representatives have visited the site
of the Work, familiarized themselves with the local conditions under which the Work is to
be performed, and correlated their observations with the requirements of the Contract
Documents.
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3.18
3.18.1
SUBSURFACE UTILITIES
Owner will comply with NMSA 1978, Chapter 62, Article 14 (the New Mexico Excavation Law)
by providing the latest and best underground utility information available regarding the campus
in the form of Utility Mapping Drawings. The Construction Manager at Risk shall locate, spot
and find all utilities within the project boundaries or affected by the project. The Construction
Manager at Risk shall repair any and all damaged utilities caused by excavation and spotting
activities. Costs for this work shall be included in the Contract Price. Owner will not pay claims
for spotting or repairing concealed or unknown subsurface utilities. The Owner will process an
appropriate Change Order if concealed or unknown subsurface utilities must be relocated in
order to construct the project as indicated in the Contract Documents.
ARTICLE 4:
ADMINISTRATION OF THE CONTRACT
4.1
4.1.1
ARCHITECT
The Architect is the person lawfully licensed to practice Architecture or an entity lawfully
practicing Architecture identified as such in the Agreement and is referred to throughout the
Contract Documents as if singular in number. The term “Architect” means the Architect or the
Architect’s authorized representative.
4.1.2
Owner reserves the right to appoint a representative empowered to act for Owner during the
administration of the Contract with such duties and responsibilities as set forth in a written
notice to Architect and Construction Manager at Risk.
4.1.3
Owner may employ or retain any licensed Architect to perform any part of the duties or
responsibilities of the Architect hereunder or perform them through Owner’s representative.
In the event that employment of the Architect is terminated, Owner will give prompt written
notice to the Construction Manager at Risk of the termination and the scope of the Architect’s
duties to be assumed by a replacement Architect or the Owner’s representative.
4.2
4.2.1
ARCHITECT’S ADMINISTRATION OF THE CONTRACT
The Architect will provide administration of the Contract as described in the Contract
Documents, and will be an Owner’s representative (1) during construction, (2) until final
payment is due and (3) with the Owner’s concurrence, from time to time during the one-year
period for correction of Work described in Paragraph 12.2. The Architect will have authority to
act on behalf of the Owner only to the extent provided in the Contract Documents, unless
otherwise modified in writing in accordance with other provisions of the Contract.
4.2.2
The Architect, as a representative of the Owner, will visit the site at intervals appropriate to the
stage of the Construction Manager at Risk’s operations (1) to become familiar with and to keep
the Owner informed about the progress and quality of the Work, (2) to use best efforts to guard
the Owner against defects and deficiencies in the Work, (3) to determine if the Work is
proceeding in accordance with the Contract Documents; and (4) cause Architect’s Consultants
to perform observations necessary to determine that key components of the Work are being
carried out in accordance with the Contract Documents . If Architect or its Consultants becomes
aware of the failure of Construction Manager at Risk, Subcontractor or any other persons
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performing any of the Work not in accordance with the Contract Documents the Architect shall
promptly notify Owner.
4.2.3
The duties and responsibilities of the Architect set forth in Subparagraph 4.2.2 are solely for the
benefit of the Owner, and the Architect’s performance or non-performance of its obligations
under Subparagraph 4.2.2 shall not relieve the Construction Manager at Risk of its responsibility
to perform the Work in accordance with the Contract Documents. The Architect will not have
control over or charge of and will not be responsible for acts or omissions of the Construction
Manager at Risk, Subcontractors, or their agents or employees, or any other persons or entities
performing portions of the Work.
4.2.4
Communications Facilitating Contract Administration. Except as otherwise provided in the
Contract Documents or when direct communications have been specially authorized or
requested by the Owner, the Owner and Construction Manager at Risk shall communicate with
each other through the Architect about matters arising out of or relating to the Contract.
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
Construction Manager at Risk. Communications by and with separate Contractors shall be
through the Owner.
4.2.5
Based on the Architect’s evaluations of the progress and quality of the Work, Construction
Manager at Risk’s Applications for Payment and all other information available to the Architect,
the Architect shall within three (3) business days of receipt of a properly executed Application
for Payment certify to the Owner the undisputed amount recommended for payment to the
Construction Manager at Risk.
4.2.6
The Architect will have authority to reject Work that does not conform to the Contract
Documents, and shall do so unless, after consultation with the Owner, Owner instructs
otherwise. Whenever the Architect in the exercise of Architect’s professional opinion considers
it necessary or advisable, the Architect will have authority subject to the Owner’s prior approval
to require inspection or testing of the Work in accordance with Subparagraphs 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 Construction
Manager at Risk, 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 promptly review and approve, reject or take other appropriate action upon
the Construction Manager at Risk’s submittals such as Shop Drawings, Product Data and
Samples, but only for the limited purpose of checking for conformance with the Contract
Documents. Review of such submittals is conducted solely in the interests of the Owner, and
shall not relieve the Construction Manager at Risk of responsibility for determining the accuracy
and completeness of other details such as dimensions and quantities, proper fit of portions or
components of the Work to each other, or for substantiating instructions for installation or
performance of equipment or systems, all of which remain the responsibility of the Construction
Manager at Risk as required by the Contract Documents. The Architect’s review of the
Construction Manager at Risk’s submittals shall not relieve the Construction Manager at Risk of
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the obligations under Paragraphs 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
The Architect will prepare Change Orders and Construction Change Directives, and may
authorize minor changes in the Work as provided in Paragraph 7.4. All Change Orders and
Construction Change Directives shall require the approval of the Owner in writing to be binding
on the Owner.
4.2.9
The Architect will conduct inspections to make recommendations to the Owner of the date or
dates of Substantial Completion and the date of final completion, will receive, approve and
forward to the Owner, written warranties and related documents required by the Contract, and
will recommend a final Certificate for Payment upon compliance with the requirements of the
Contract Documents and the Prompt Payment Act.
4.2.10
If the Owner and Architect agree, the Architect will provide one or more project representatives
to assist in carrying out the Architect’s responsibilities at the site.
4.2.11
Subject to the claims procedures set forth in Paragraph 4.3, the Architect will interpret and
decide matters concerning performance under the Contract Documents on written request of
either the Owner or Construction Manager at Risk. Upon receipt of such request from either
the Owner or Construction Manager at Risk, the Architect shall promptly notify the nonrequesting party of the details of the request. The Architect’s response to the request will be
made promptly, and in no event later than 15 days after the date on which such request is made.
Delay shall not be recognized on account of failure by the Architect to furnish such
interpretations until 15 days after written request is made for them.
4.2.12
Interpretations and decisions of the Architect will be consistent with Contract Documents and
will be in writing or in the form of drawings. When making such interpretations and initial
decisions, the Architect will endeavor to secure faithful performance by both Owner and
Construction Manager at Risk, will not show partiality to either and will not be liable for results
of interpretations or decisions so rendered in good faith.
4.3
4.3.1
CLAIMS AND DISPUTES
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 and 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 Construction Manager at Risk arising
out of or related 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 Owner or Construction Manager at Risk must be initiated
within 14 days after occurrence of the event giving rise to such Claim or within 14 days after the
claimant first recognizes the condition giving rise to the Claim, whichever is later. Claims must
be initiated by written notice to the Architect and the other party. Owner, Construction
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Manager at Risk and Architect shall cooperate in efforts to mitigate the alleged or potential
damages, delay, or other adverse consequences arising out of the condition which is the cause
of such Claim.
4.3.3
Continuing Contract Performance: Pending final resolution of a Claim except as otherwise
directed by the Owner in writing or as provided in Subparagraph 9.7.1 and Article 14, the
Construction Manager at Risk shall proceed diligently with performance of the Contract and the
Owner shall continue to make payments in accordance with the Contract Documents.
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 5 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 Construction Manager at Risk’s cost of, or time required for,
performance of any part of the Work, will notify the Owner and Construction Manager at Risk
stating the reasons, request information from the Construction Manager at Risk substantiating
such cost and time impacts, and recommend to the Owner an equitable adjustment in the
Contract Sum or Contract Time, or both. If the Architect determines that the conditions at the
site are not materially different from those indicated in the Contract Documents and that no
change in the terms of the Contract is justified, the Architect shall so notify the Owner and
Construction Manager at Risk in writing, stating the reasons. Claims by either party in
opposition to such determination must be made within 14 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 Construction Manager at
Risk 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 Paragraph 4.4.
4.3.5
Claims for Additional Cost: If the Construction Manager at Risk wishes to make Claim for an
increase in the Contract Sum, written notice as provided herein shall be given before proceeding
to execute the Work. Prior notice is not required for Claims relating to an emergency
endangering life or property arising under Paragraph 10.6. Construction Manager at Risk shall,
upon recognition of a condition giving rise to a claim for additional cost, establish separate
accounting codes or other methods for quantifying the cost or time impact attributable to the
Claim. Written notice of the Claims shall itemize the claim and contain sufficient detail,
including but not limited to the information required above, to permit evaluation of the claim
by the Owner and Architect. Architect will give prompt notice to Construction Manager at Risk
of inadequacies in the supporting information. No claim for delay shall be recognized for
periods of time between the initial assertion of the claim and submission of adequate
information for the Owner and Architect to evaluate the claim or for a period of fifteen (15)
days after submission of adequate information for evaluation.
Page 79 of 128
4.3.6
If the Construction Manager at Risk 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 Construction Manager at Risk was not at fault, (3) a written order for a
minor change in the Work issued by the Architect, (4) unjustified failure of payment by the
Owner, (5) termination of the Contract by the Owner, (6) Owner’s suspension or (7) other
reasonable grounds, Claim shall be filed in accordance with this Paragraph 4.3.
4.3.7
CLAIMS FOR ADDITIONAL TIME
4.3.7.1
4.3.7.2
If the Construction Manager at Risk wishes to make Claim for an increase in the
Contract Time, written notice as provided herein shall be given. The Construction
Manager at Risk’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.
If adverse weather conditions are the basis for a Claim for additional time, such claim
shall be documented by U.S. Weather Bureau Climatological Reports for the month(s)
involved plus a report indicating the average precipitation, temperature, etc. for the
past ten (10) years from the nearest reporting station. The ten-year average shall be
the basis for determining the number of adverse weather days that the Construction
Manager at Risk should reasonably have anticipated and the conditions the
Construction Manager at Risk should reasonably have expected to encounter.
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 seven (7) days
after discovery. The notice shall provide sufficient detail to enable the other party to investigate
the matter.
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 so that
application of such unit prices to quantities of Work proposed will cause substantial inequity to
the Owner or Construction Manager at Risk, the applicable unit prices shall be equitably
adjusted.
4.4
4.4.1
RESOLUTION OF CLAIMS AND DISPUTES
Decision of Architect: Claims, including those alleging an error or omission by the Architect but
excluding those arising under Paragraphs 10.3 through 10.5, shall be referred initially to the
Architect for decision. An initial decision by the Architect shall be required as a condition
precedent to mediation, arbitration or litigation of all Claims between the Construction
Manager at Risk and Owner arising prior to the date final payment is due, unless 30 days have
passed after the Claim has been referred to the Architect with no decision having been rendered
by the Architect. The Architect will not decide disputes between the Construction Manager at
Risk and persons or entities other than the Owner.
Page 80 of 128
4.4.2
The Architect will review Claims and within ten days of the receipt of the Claim take one or of
the following actions: (1) request additional supporting data from the claimant or a response
with supporting data from the other party, (2) reject the Claim in whole or in part, (3) approve
the Claim, or (4) suggest a compromise.
4.4.3
In evaluating Claims, the Architect may, but shall not be obligated to, consult with or seek
information from either party or from persons with special knowledge or expertise who may
assist the Architect in rendering a decision. The Architect may request the Owner to authorize
retention of such persons at the Owner’s expense.
4.4.4
If the Architect requests a party to provide a response to a Claim or to furnish additional
supporting data, such party shall respond, within ten days after receipt of such request, and
shall either provide a response on the requested supporting data, advise the Architect when
the response or supporting data will be furnished or advise the Architect that no supporting
data will be furnished. Upon receipt of the response or supporting data, if any, the Architect
will either reject or approve the Claim in whole or in part.
4.4.5
The Architect will approve or reject Claims by written decision, which shall state the reasons
therefor and which shall notify the parties of any change in the Contract Sum or Contract Time
or both. The approval or rejection of a Claim by the Architect shall be final and binding on the
parties subject to mediation and arbitration.
4.4.6
A written decision of the Architect shall state that (1) the decision is final but subject to
mediation and arbitration and (2) a demand for arbitration of a Claim covered by such decision
must be made within 30 days after the date on which the party making the demand receives
the final written decision. Failure to demand arbitration within said 30 days period shall result
in the Architect’s decision becoming final and binding upon the Owner and Construction
Manager at Risk. If the Architect renders a decision after arbitration proceedings have been
initiated, such decision may be entered as evidence, but shall not supersede arbitration
proceedings unless the decision is acceptable to all parties concerned.
4.4.7
Upon receipt of a Claim against the Construction Manager at Risk or at any time thereafter, the
Architect or the Owner may, but is not obligated to, notify the surety, if any, of the nature and
amount of the Claim. If the Claim relates to a possibility of a Construction Manager at Risk’s
default, the Architect or the Owner may, but is not obligated to, notify the surety and request
the surety’s assistance in resolving the controversy.
4.4.8
If a Claim relates to or is the subject of a mechanic’s lien, the party asserting such Claim may
proceed in accordance with applicable law to comply with the lien notice or filing deadlines
prior to resolution of the Claim by the Architect, by mediation or by arbitration.
4.5
4.5.1
MEDIATION
Any Claim arising out of or related to the Contract, except Claims waived as provided for in
Subparagraphs 4.3.10, 9.10.4 and 9.10.5 shall, after initial decision by the Architect or 30 days
after submission of the Claim to the Architect, be subject to mediation as a condition precedent
to arbitration or the institution of legal or equitable proceedings by either party.
Page 81 of 128
4.5.2
The parties shall endeavor to resolve their Claims by mediation which, unless the parties
mutually agree otherwise, shall be in accordance with the procedures of the New Mexico Public
Works Mediation Act (NMSA § 13-4C-1 et seq.) except that before any party may select a
mediator it must confer in good faith with the other party concerning the selection of a mutually
acceptable mediator. The request may be made concurrently with the filing of a demand for
arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or
equitable proceedings, which shall be stayed pending mediation for a period of 60 days from
the date of notice of mediation session, unless stayed for a longer period by agreement of the
parties or court order.
4.5.3
Agreements reached in mediation shall be enforceable as settlement agreements in any court
having jurisdiction thereof.
4.6
4.6.1
ARBITRATION
Any Claim arising out of or related to the Contract, except Claims waived as provided for in
Subparagraphs 4.3.10, 9.10.4 and 9.10.5 shall, after decision by the Architect or 30 days after
submission of the Claim to the Architect, be subject to arbitration. Prior to arbitration, the
parties shall endeavor to resolve disputes by mediation in accordance with the provisions of
Paragraph 4.5.
4.6.2
Claims not resolved by mediation shall be decided by arbitration which, unless the parties
mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration
Rules of the American Arbitration Association currently in effect. The demand for arbitration
shall be filed in writing with the other party to the Contract and with the American Arbitration
Association, and a copy shall be filed with the Architect.
4.6.3
A demand for arbitration shall be made within the time limits specified in Subparagraphs 4.4.6
and 4.6.1 as applicable, and in other cases within a reasonable time after the Claim has arisen,
and in no event shall it be made after the date when institution of legal or equitable proceedings
based on such Claim would be barred by the applicable statute of limitations as determined
pursuant to Paragraph 13.7.
4.6.4
Claims and Timely Assertion of Claims: The party filing a notice of demand for arbitration must
assert in the demand all Claims then known to that part on which arbitration is permitted to be
demanded.
4.6.5
Judgment on Final Award: The award rendered by the arbitrator or arbitrators shall be final,
and judgment may be entered upon it in accordance with applicable law in any court having
jurisdiction thereof.
ARTICLE 5:
5.1
5.1.1
SUBCONTRACTORS
AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK
Unless otherwise stated in the Contract Documents or the bidding requirements, the
Construction Manager at Risk, 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
Page 82 of 128
materials or equipment fabricated to a special design and where applicable the name of the
installing Construction Manager at Risk), trades and proposed work scope for each portion of
the Work. The Owner will promptly reply to the Construction Manager at Risk in writing stating
whether or not the Owner, after due investigation, has reasonable objection to any such
proposed person or entity. All Subcontractors must meet all the required contracting licensing
and bonding requirements.
5.1.2
The Construction Manager at Risk shall not contract with a proposed person or entity to which
the Owner or Architect has made reasonable and timely objection. The Construction Manager
at Risk shall not be required to contract with anyone to whom the Construction Manager at Risk
has made reasonable objection.
5.1.3
If the Owner or Architect has reasonable objection to a person or entity proposed by the
Construction Manager at Risk, or Subcontractor, the Construction Manager at Risk shall propose
another to whom the Owner or Architect has no reasonable objection.
5.1.4
The Construction Manager at Risk shall furnish a complete list of Subcontractor changes, each
and every time a proposed change is to be requested by the Construction Manager at Risk. Any
substitutions of a Subcontractor will comply with the New Mexico Subcontractor Fair Practices
Act to the extent that the Subcontractors Fair Practices Act is applicable. The Construction
Manager at Risk shall not substitute a Subcontractor, person or entity previously selected if the
Owner makes reasonable objection to such substitution.
5.2
5.2.1
SUBCONTRACTURAL RELATIONS
By appropriate agreement, written where legally required for validity, the Construction
Manager at Risk shall require each Subcontractor, to the extent of the Work to be performed
by the Subcontractor, to be bound to the Construction Manager at Risk by terms of the Contract
Documents, and to assume toward the Construction Manager at Risk all the obligations and
responsibilities, including responsibility for safety of the Subcontractor’s Work, which the
Construction Manager at Risk, 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, and shall allow to the
Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit
of all rights, remedies and redress against the Construction Manager at Risk that the
Construction Manager at Risk, by the Contract Documents, has against the Owner. Where
appropriate, the Construction Manager at Risk shall require each Subcontractor to enter into
similar agreements with Sub-Subcontractors. The Construction Manager at Risk shall make
available to each proposed Subcontractor, prior to execution of the subcontract agreement,
copies of the Contract Documents to which the Subcontractor will be bound, and, upon written
request of the Subcontractor, identify to the Subcontractor terms and conditions of the
proposed subcontract agreement which may be at variance with the Contract Documents.
Subcontractors will similarly make copies of applicable portions of such documents available to
their respective proposed Sub-Subcontractors.
Page 83 of 128
5.2.2
All agreements between the Construction Manager at Risk and a Subcontractor or supplier shall
contain provisions whereby Subcontractor or supplier waives all rights against the Owner,
Construction Manager at Risk, Owner’s representative, Architect and all other additional
insureds for all losses and damages caused by, arising out of, or resulting from any of the perils
covered by property or builders risk insurance coverage required of the Construction Manager
at Risk in the Contract Documents. If insureds on any such policies require separate waiver
forms to be signed by any Subcontractors of any tier or suppliers, Construction Manager at Risk
shall obtain the same.
5.3
5.3.1
CONTINGENT ASSIGNMENT OF SUBCONTRACTS
Each subcontract agreement for a portion of the Work is assigned by the Construction Manager
at Risk to the Owner provided that:
5.3.1.1 assignment is effective only after termination of the Contract by the Owner for cause
pursuant to Paragraph 14.2 and only for those subcontract agreements which the
Owner accepts by notifying the Subcontractor and the Construction Manager at Risk
in writing; and
5.3.1.2 assignment is subject to prior rights of the surety, if any, obligated under bond
relating to the Contract.
5.3.2
Upon such assignment, if the Work has been suspended for more than 30 consecutive days, the
Subcontractor’s compensation shall be equitably adjusted for increases in cost resulting from
the suspension.
ARTICLE 6:
CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
6.1
6.1.1
OWNER’S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS
The Owner reserves the right to perform construction or operations related to the Project with
the Owner’s own forces, and to award separate contracts in connection with other portions of
the Project or other construction or operations on the site under Conditions of the Contract
identical or substantially similar to these including those portions related to insurance and
waiver of subrogation. If the Construction Manager at Risk claims that delay or additional cost
is involved because of such action by the Owner, the Construction Manager at Risk shall make
such Claim as provided in Paragraph 4.3.
6.1.2
When separate contracts are awarded for different portions of the Project or other construction
or operations on the site, the term “Contractor” in the Contract Documents in each case shall
mean the Contractor who executes each separate Owner-Contractor Agreement.
6.1.3
The Owner or Architect shall provide for coordination of the activities of the Owner’s own forces
and of each separate Contractor with the Work of the Construction Manager at Risk, who shall
cooperate with them. The Construction Manager at Risk shall participate with the other
separate Contractors, the owners’ forces and the Owner in reviewing and coordinating the
construction work and schedules. The Construction Manager at Risk shall make any revisions
to the construction schedule deemed necessary after a joint review and mutual agreement. The
construction schedules shall then constitute the schedules to be used by the Construction
Page 84 of 128
Manager at Risk, separate Contractors and the Owner until subsequently revised. The
Construction Manager at Risk shall complete the work correctly and at the proper time and not
delay or cause additional expense to another Contractor.
6.1.4
Unless otherwise provided in the Contract Documents, when the Owner performs construction
or operations related to the Project with the Owner’s own forces, the Owner shall be deemed
to be subject to the same obligations and to have the same rights which apply to the
Construction Manager at Risk under the Conditions of the Contract.
6.1.5
Owners Commissioning Agent: In addition to the Construction Manager at Risk’s equipment
start-up and operational testing as required by the Contract Documents, the Owner may enter
into separate contracts for Commissioning Services, the scope of which is generally contained
in the Contract Documents. The Construction Manager at Risk and the associated
Subcontractors shall fully support the Owners Commissioning activities as required by the
Contract Documents.
6.2
6.2.1
MUTUAL RESPONSIBILITY
The Construction Manager at Risk shall afford the Owner and separate Contractors reasonable
opportunity for introduction and storage of materials and equipment and performance of
activities, and shall connect and coordinate the Construction Manager at Risk’s construction
and operations with theirs as required by the Contract Documents.
6.2.2
If part of the Construction Manager at Risk’s Work depends for proper execution or results upon
construction or operations by the Owner or a separate Contractor, the Construction Manager
at Risk shall, prior to proceeding with that portion of the Work, promptly, so as not to delay the
project, report to the Architect and Owner apparent discrepancies or defects in such other
construction that would render it unsuitable for proper execution and results. The Construction
Manager at Risk’s failure to promptly, so as not to delay the project, report such discrepancies
or defects constitutes acknowledgement and acceptance that the Owner’s or separate
Contractor’s completed or partially completed Work is fit and proper to receive the
Construction Manager at Risk’s Work, except as to defects not then reasonably discoverable.
6.2.3
The Owner shall be reimbursed by the Construction Manager at Risk for costs incurred by the
Owner which are payable to a separate Contractor because of delays, improperly timed
activities or defective construction of the Construction Manager at Risk. The Owner shall be
responsible to the Construction Manager at Risk for costs incurred by the Construction Manager
at Risk because of delays, improperly timed activities and/or damage to the Work or defective
construction of the Owner or separate Contractor.
6.2.4
The Construction Manager at Risk shall promptly remedy damage caused by the Construction
Manager at Risk to completed or partially completed construction or to property of the Owner
or separate Contractors as provided in Subparagraph 10.2.5.
6.2.5
The Owner and each separate Contractor shall have the same responsibilities for cutting and
patching and clean up as are described for the Construction Manager at Risk in Subparagraph
3.14 and 3.4.4.
Page 85 of 128
6.3
6.3.1
OWNER’S RIGHT TO CLEAN UP
If a dispute arises among the Construction Manager at Risk, 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
allocate the cost among those responsible.
ARTICLE 7:
CLAIMS AND DAMAGES
7.1
7.1.1
GENERAL
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 among the Owner, Construction Manager at
Risk and Architect. A Construction Change Directive requires agreement among the Owner and
Architect and may or may not be agreed to by the Construction Manager at Risk; an order for a
minor change in the works may be issued by the Architecture alone.
7.1.3
Changes in the Work shall be performed under applicable provisions of the Contract
Documents, and the Construction Manager at Risk will proceed promptly, unless otherwise
provided in the Change Order, Construction Change Directive or order for a minor change in the
Work.
7.2
7.2.1
CHANGE ORDERS
A Change Order is a written instrument prepared by the Architect and signed by the Owner,
Construction Manager at Risk, and Architect, stating their agreement upon all of the following:
7.2.1.1 change in the Work;
7.2.1.2 the amount of the adjustment, if any, in the Contract Sum; and
7.2.1.3 the extent of the adjustment, if any, in the Contract Time.
7.2.2
Methods used in determining adjustments to the Contract Sum may include those listed in
Subparagraph 7.3.3.
7.2.3
With each proposal for a change in the Scope of Work, the Construction Manager at Risk will
submit an itemized breakdown of all increases or decreases in the cost of the Construction
Manager at Risk’s and all Subcontractor’s work to include the following detail in the order listed:
7.2.3.1 material quantities and unit costs.
7.2.3.2 labor amounts and hourly rates, (identified with specific items of material to be
placed or operation to be performed).
7.2.3.3 Labor Burden, including specific entries for Workman’s Compensation Insurance,
employee benefits, and employment taxes (Federal and State). The Labor Burden
total will not exceed 46% of labor amounts. Exceptions can be made to this 46%
limitation on a case by case basis. To request exceptions to the Construction Manager
at Risk must submit detailed justification showing the elements of cost that would
Page 86 of 128
7.2.3.4
7.2.3.5
7.2.3.6
7.2.3.7
7.2.4
cause the labor burden to exceed 46%. The Architect will review this justification for
accuracy and reasonableness and notify the Owner, in writing, regarding the
Architect’s recommendation concerning labor burdens above 46%.
equipment costs, if any, (cars and pick-up trucks will not be included as equipment).
bonds and Public Liability Insurance.
does not include New Mexico Gross Receipts Tax, which will be computed with each
Application for Payment.
overhead and profit.
Overhead and profit on Change Orders shall be applied as follows:
7.2.4.1 the overhead and profit charged by the Construction Manager at Risk shall be
considered to include, but not limited to, performance bond, builder’s risk and public
liability insurance, job site office expense, normal hand tools, incidental job
supervision, field supervision, company benefits, and general office overhead. The
percentages for overhead and profit charged on Change Orders shall be negotiated
and may vary according to the nature, extent, and complexity of the Work involved
but in no case shall exceed the following:
Subtotal before
applying
overhead and
profit:
Construction
Manager at Risk
(for
work
performed by
his own forces):
Under $500
Fee
percentage
proposed by
the
Constructio
n Manager
at Risk in
the Form of
Proposal
plus 22%.
Subcontractor
Maximum:
(for
work 22.40%
performed by
his own forces):
Construction
Fee
Manager at Risk percentage
(for
work proposed by
performed by the
Subcontractor): Constructio
n Manager
at Risk in
the Form of
$500
to
$5,000
$5,000
to
$25,000
Over $25,000
Fee
percentage
proposed
by
the
Constructio
n Manager
at Risk in
the Form of
Proposal
plus 15%.
Maximum:
16.80%
Fee
percentage
proposed by
the
Constructio
n Manager
at Risk in
the Form of
Proposal
plus 10%.
Maximum:
12.60%
Fee
percentage
proposed by
the
Construction
Manager
at
Risk in the
Form
of
Proposal plus
6%.
Maximum:
11.81%
Fee
percentage
proposed
by
the
Constructio
n Manager
at Risk in
the Form of
Fee
percentage
proposed by
the
Constructio
n Manager
at Risk in
the Form of
Fee
percentage
proposed by
the
Construction
Manager
at
Risk in the
Page 87 of 128
Proposal
plus 5%.
Proposal
plus 3%.
Proposal
plus 1%
Form
Proposal.
of
Not more than three mark-ups, not to exceed individual maximums shown above,
shall be allowed regardless of the number of tier Subcontractors. Overhead and profit
shall be shown separately for each Subcontractor of any tier and the Construction
Manager at Risk.
7.2.4.2
On proposals covering both increases and decreases in the amount of the Contract,
the application of overhead and profit shall be on the net change in direct cost for the
Contractor and Subcontractor of any tier performing the Work.
7.2.4.3
The percentages for overhead and profit credit to the Owner on Change Orders that
are strictly decreases in the quantity of Work or materials shall be negotiated and
may vary according to the nature, extent, and complexity of the Work involved, but
shall not be less than the following:
Overhead and Profit:
10% credit to the Owner from the Contractor or Subcontractor of any tier for Work
performed with their respective forces or materials purchased;
5% credit to the Owner from the Contractor on Work performed by other than his
forces; 5% credit to the Owner from the first tier Subcontractor on Work performed
by his Subcontractor of any tier.
7.2.4.4
If there is additional time granted in a Change Order, it strictly applies toward
liquidated damages. No additional money can be charged for overhead for time
extensions.
7.2.4.5
No overhead or profit will be allowed on FICA or FUTA taxes.
7.3
7.3.1
CONSTRUCTION CHANGE DIRECTIVES
A Construction Change Directive is a written order prepared by the Architect and signed by the
Owner and Architect, directing a change in the Work prior to agreement on adjustment, if any,
in the Contract Sum or Contract Time, or both. The Owner may by Construction Change
Directive, without invalidating the Contract, order changes in the Work within the general scope
of the Contract consisting of additions, deletions or other revisions, the Contract Sum and
Contract Time being adjusted accordingly.
7.3.2
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 Contract Sum, the
adjustment shall be based on one of the following methods:
7.3.3.1 mutual acceptance of a lump sum properly itemized and supported by sufficient
substantiating data to permit evaluation as outlined in 7.2.3.
7.3.3.2 unit prices stated in the Contract Documents or subsequently agreed upon.
Page 88 of 128
7.3.3.3
7.3.3.4
cost to be determined in a manner agreed upon by the parties and a mutually
acceptable fixed or percentage fee, or
as provided in Subparagraph 7.3.6.
7.3.4
Upon receipt of a Construction Change Directive, the Construction Manager at Risk shall
promptly proceed with the change in the Work involved and advise the Architect of the
Construction Manager at Risk’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.
7.3.5
A Construction Change Directive signed by the Construction Manager at Risk indicates the
agreement of the Construction Manager at Risk therewith including adjustment in the Contract
Sum and Contract Time or the method for determining them. Such agreement shall be effective
immediately and shall be recorded as a Change Order.
7.3.6
If the Construction Manager at Risk does not respond promptly or disagrees with the method
for adjustment in the Contract Sum, the method and the adjustment shall be determined by the
Architect on the change, including, in case of an increase in the Contract Sum, a reasonable
allowance for overhead and profit. In such case, and also under Clause 7.3.3, the Construction
Manager at Risk shall keep and present, in such form as the Architect may prescribe, an itemized
accounting together, with appropriate supporting data. Unless otherwise provided in the
Contract Documents, costs for the purposes of this Subparagraph 7.3.6 shall be limited to the
following:
7.3.6.1 costs of labor, including social security, old age, and unemployment insurance, fringe
benefits required by agreement or custom, and workers’ compensation insurance;
7.3.6.2 costs of materials, supplies and equipment, including cost of transportation, whether
incorporated or consumed.
7.3.6.3 rental costs of machinery and equipment, exclusive of hand tools, whether rented
from the Construction Manager at Risk or others.
7.3.6.4 costs of premiums for all bonds and insurance, permit fees, and sales, use or similar
taxes related to the Work; and
7.3.6.5 additional costs of supervision and field office personnel directly attributable to the
change.
7.3.7
The amount of credit to be allowed by the Construction Manager at Risk to the Owner for a
deletion or change that result in a net decrease in the Contract Sum shall be actual net cost as
confirmed by the Architect. 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.
7.3.8
Pending final determination of the total cost of a Construction Change Directive to the Owner,
amounts not in dispute for such changes in the Work shall be included in Applications for
Payment accompanied by a Change Order indicating the parties’ agreement with part or all of
such costs. For any portion of such cost that remains in dispute, the Architect will make an
interim determination for purposes of monthly certification for payment for those costs. That
Page 89 of 128
determination of cost shall adjust the Contract Sum on the same basis as a Change Order,
subject to the right of either party to disagree and assert a claim in accordance with Article 4.
7.3.9
When the Owner and Construction Manager at Risk agree with the determination made by the
Architect concerning the adjustments in the Contract Sum and Contract Time; or otherwise
reach agreement upon the adjustments, such agreement shall be effective immediately and
shall be recorded by preparation and execution of an appropriate Change Order.
7.4
7.4.1
CONSTRUCTION MANAGER AT RISK COMPLIANCE WITH THE CHANGE ORDER PROCESS
The Construction Manager at Risk shall provide Change Order Pricing and backup in a timely
manner. No claim for an addition to the Contract Sum will be valid unless authorized in writing
by the Owner.
7.4.2
No changes or additions to the work to be performed, materials to be furnished, or in the
provisions of the Contract will be authorized until execution and delivery by the Owner to the
Construction Manager at Risk of the written Change Order. Any work completed by the
Construction Manager at Risk outside the original project scope without written approval from
the Owner will be deemed as a waiver by the Construction Manager at Risk for additional
compensation for said work.
7.5
7.5.1
MINOR CHANGES TO THE WORK
The Architect will have authority to order minor changes in the Work not involving adjustment
in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of
the Contract Documents. Such changes shall be effected by written order and shall be binding
on the Owner and Construction Manager at Risk. The Construction Manager at Risk shall carry
out such written orders promptly.
ARTICLE 8:
TIME
8.1
8.1.1
DEFINITIONS
Unless otherwise provided, Contract Time is the period of time, including authorized
adjustments, allotted in the Contract Documents for Substantial Completion of the Work.
8.1.2
The date of commencement of the Work is the date established in the Agreement. The date
shall not be postponed by the failure of the Construction Manager at Risk or of persons or
entities for which the Construction Manager at Risk is responsible.
8.1.3
The date of Substantial Completion is the date certified by the Architect and the Owner in
accordance with paragraph 9.8.
8.1.4
The date of Final Completion is the date certified by the Architect and the Owner in accordance
with paragraph 9.10.
8.2
PROGRESS AND COMPLETION
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8.2.1
Time limits stated in the Contract Documents are the essence of the Contract. By executing the
Agreement the Construction Manager at Risk confirms that the Contract Time is a reasonable
period for performing the Work.
8.2.2
The Construction Manager at Risk 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 Construction Manager
at Risk and Owner. The date of commencement of the Work will not be changed by the effective
date of such insurance.
8.2.3
The Construction Manager at Risk shall proceed expeditiously with adequate forces and shall
achieve Substantial Completion within the Contract Time.
8.2.4
The Owner shall not be liable to the Construction Manager at Risk if the Construction Manager
at Risk submits a progress report or any construction schedule expressing an intention to
achieve completion of the Work prior to the Contract Time. No liability on the part of the Owner
shall be created or implied for failure of the Construction Manager at Risk to so complete the
Work.
8.3
8.3.1
DELAYS AND EXTENSIONS OF TIME
If the Construction Manager at Risk is delayed at any time in the commencement or progress of
the Work by an act or neglect of the Owner or Architect, or of a separate contractor employed
by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in
deliveries, unavoidable casualties or other causes beyond the Construction Manager at Risk’s
control, or by delay authorized by the Owner pending mediation and arbitration, or by other
causes which the Architect and the Owner determines may justify delay, then the Contract Time
may be extended by Change Order for such reasonable time as the Architect and the Owner
may determine.
8.3.2
Claims relating to time shall be made in accordance with applicable provisions of Paragraph 4.3
and the applicable provisions of Paragraph 7.3.
8.4
8.4.1
CONTRACT TIME AND LIQUIDATED DAMAGES
The Construction Manager at Risk agrees that the Work will be prosecuted regularly, diligently
and without interruption at such rate of progress as will ensure completion within the Contract
Time. It is expressly understood and agreed, by and between the Construction Manager at Risk
and the Owner, that the Contract Time is a reasonable time for completion of the Work, taking
into consideration the average climate range and usual industrial conditions prevailing in this
locality. If the Construction Manager at Risk neglects, fails or refuses to complete the Work
within the Contract Time, or any proper extension granted by the Owner, then the Construction
Manager at Risk agrees to pay to the Owner the amount specified in the Contract Documents,
not as a penalty, but as liquidated damages.
8.4.2
The parties agree that the amount of the likely damage to the Owner for such delay is difficult
to ascertain at the time of execution of this agreement, but that a reasonable estimate of such
damages for delay is set forth in the Contract Documents. Liquidated damages may be
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deducted from any monthly progress payments due to the Construction Manager at Risk or
from other moneys being withheld from the Construction Manager at Risk.
8.4.3
The Construction Manager at Risk and Surety are liable for liquidated damages over and above
moneys held by the Owner.
ARTICLE 9:
PAYMENTS AND COMPLETION
9.1
9.1.1
CONTRACT SUM
The Contract Sum is stated in the Agreement and, including authorized adjustments, is the total
amount payable by the Owner to the Construction Manager at Risk for performance of the Work
under the Contract Documents.
9.1.2
The Owner may withhold any payments to the Construction Manager at Risk if the Construction
Manager at Risk fails to perform any of its obligations or is in default under any of the Contract
Documents identified in Paragraph 9.5; provided, however, that any payments withheld will be
limited to an amount sufficient to cure any default or failure of performance by the Construction
Manager at Risk or as liquidated damages pursuant to paragraph 8.4.1.
9.2
9.2.1
SCHEDULE OF VALUES
Before the first Application for Payment, the Construction Manager at Risk shall submit to the
Architect and the Owner a schedule of values allocated to various portions of the Work,
prepared in such form and supported by such data to substantiate its accuracy as the Architect
and Owner may require. This schedule, upon acceptance by the Architect and the Owner shall
be used as a basis for reviewing the Construction Manager at Risk’s Applications for Payment.
No Applications for Payment will be processed until the schedule of values is received and
approved by the Architect and the Owner.
9.2.2
To protect the Owner from the significant liability and arduous accounting efforts required by
lingering documentation and close-out work, the Schedule of Values shall provide a separate
line item entitled “Documentation and Close-Out” to provide a value consistent with and
appropriate to required provisions throughout the Contract including, but not limited to:
Preparation and delivery of project record drawings; warranties; affidavits of training sessions
in the use of building equipment; operation and maintenance manuals; certification of
compliance with final commissioning reports; certification of conformity to final testing and
balancing of air handling systems; and delivery of close-out documentation required by Article
9.10.
For a total Contract
Amount excluding tax of:
Less than $20,000
20,001 – 75,000
75,001 – 100,000
Documentation and
Close-Out amount:
$0
6,000
8,000
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100,001 – 200,000
200,001 – 350,000
350,001 – 500,000
501,001 - 1,000,000
1,000,001 – 1,500,000
1,500,001 – 2,000,000
2,000,001 - 3,000,000
For each additional million dollars
10,000
15,000
25,000
50,000
70,000
90,000
120,000
add 30,000
9.3
9.3.1
APPLICATION FOR PAYMENT
By the date established as the end of each progress payment period, the Construction Manager
at Risk shall submit to the Architect and the Owner an itemized Application for Payment
completed in accordance with the schedule of values and accompanied by the Owner’s
Certificate for Payment form. The Application for Payment shall be notarized, and supported
by such data substantiating the Construction Manager at Risk’s right to payment as the Owner
or Architect may require, such as copies of requisitions from Subcontractors and material
suppliers.
9.3.1.1 As provided in Subparagraph 7.3.8 such applications may include requests for
payment on account of changes in the Work which have been properly authorized by
Construction Change Directives, or by interim determinations of the Architect or the
Owner, but not yet included in Change Orders.
9.3.1.2 Such applications may not include requests for portions of the Work for which the
Construction Manager at Risk does not intend to pay to a Subcontractor or material
supplier unless such Work has been performed by others whom the Construction
Manager at Risk intends to pay.
9.3.1.3 It is the Construction Manager at Risk’s responsibility to comply with the provisions
of the New Mexico Prompt Payment Act (NMSA 57-28-1-et. seq.).
9.3.1.4 It is the Construction Manager at Risk’s responsibility to comply with Section 57-285(C) of the New Mexico Prompt Payment Act requiring Contractors to make prompt
payment to Subcontractors for work performed within (7) seven days after receipt of
payment from the Owner or pay interest for failing to make prompt payment.
9.3.1.5 The Owner will pay 100% of the amount due the Construction Manager at Risk for
progress payments less those amounts identified through the procedures in
Paragraph 9.1.2.
9.3.2
Unless otherwise provided in the Contract Documents, payments shall be made for materials
and equipment delivered and suitably stored and insured at the site for incorporation in the
Work. Any payments for such materials or equipment shall be conditioned upon the
Construction Manager at Risk’s demonstrating that they are adequately protected from
weather, damage, vandalism and theft and that such materials or equipment have been
inventoried and stored in accordance with procedures established by or approved by the
Owner. If approved in advance by the Owner, payment may similarly be made for materials
and equipment suitably stored off the site at a secure location agreed upon in writing. Payment
for materials and equipment stored on or off the site shall be conditioned upon compliance by
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the Construction Manager at Risk with procedures satisfactory to the Owner to establish the
Owner’s title to such materials and equipment or otherwise protect the Owner’s interest, and
shall include the costs of applicable insurance, storage and transportation to the site for such
materials and equipment stored off the site.
9.3.3
The Construction Manager at Risk warrants that title to all Work covered by an Application for
Payment will pass to the Owner no later than the time of payment. The Construction Manager
at Risk further warrants that upon submittal of an Application for Payment all Work for which
Certificates for Payment have been previously issued and payments received from the Owner
shall, be free and clear of liens, claims, security interests or encumbrances in favor of the
Construction Manager at Risk, Subcontractors, material suppliers, or other persons or entities
making a claim by reason of having provided labor, materials and equipment relating to the
Work.
9.4
9.4.1
CERTIFICATE FOR PAYMENT
The Architect and the Owner, within seven days after receipt of the Construction Manager at
Risk’s Application for Payment, will issue a Certificate for Payment to the Construction Manager
at Risk, for such amount as the Architect and the Owner determines is properly due, or notify
the Construction Manager at Risk in writing of the reasons for withholding certification in whole
or in part as provided in Subparagraph 9.5.1.
9.4.2
The issuance of a Certificate for Payment will constitute a representation by the Architect to the
Owner that the Work has progressed to the point indicated and that, to the best of the
Architect’s knowledge, information and belief, 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 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
Construction Manager at Risk is entitled to payment in the amount certified.
9.4.3
The Owner will issue payment to the Construction Manager at Risk in the amount certified in
the approved Certificate for Payment within twenty-one (21) days from the end of the progress
payment period. This period is inclusive of the time for review of the Application for Payment
specified in paragraph 9.4.1.
9.5
9.5.1
DECISIONS TO WITHHOLD CERTIFICATION
The Architect or Owner may withhold a Certificate for Payment in whole or in part, to the extent
reasonably necessary to protect the Owner, if the representations to the Owner required by
Subparagraph 9.4.2 cannot be made. If the Construction Manager at Risk and Architect and
Owner 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 or subsequent observations, 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
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protect the Owner from loss for which the Construction Manager at Risk is responsible,
including loss resulting from acts and omissions described in Subparagraph 3.3.2, because of:
9.5.1.1 defective Work not remedied;
9.5.1.2 third party claims filed or reasonable evidence indicating probable filing of such
claims unless security acceptable to the Owner is provided by the Construction
Manager at Risk;
9.5.1.3 failure of the Construction Manager at Risk to make payments properly to
Subcontractors or for labor, materials or equipment;
9.5.1.4 reasonable evidence that the Work cannot be completed for the unpaid balance of
the Contract Sum;
9.5.1.5 damage to the Owner or another Construction Manager at Risk;
9.5.1.6 reasonable evidence that the Work will not be completed within the Contract Time,
and that the unpaid balance would not be adequate to cover actual or liquidated
damages for the anticipated delay; or
9.5.1.7 persistent failure to carry out the Work in accordance with the Contract Documents.
9.5.2
When the above reasons for withholding certification are removed, certification will be made
for amounts previously withheld.
9.6
9.6.1
PROGRESS PAYMENTS
After the Architect has issued a certificate for payment and the Owner has independently
verified the information and approved the certificate for payment, the Owner will make
payment in the manner and within the time provided in the Contract Documents.
9.6.2
The Construction Manager at Risk shall pay each Subcontractor, upon receipt of payment from
the Owner, the amount to which each Subcontractor is entitled in conformance with paragraph
9.3.1.4. The Construction Manager at Risk shall 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 information regarding percentages of
completion or amounts applied for by the Construction Manager at Risk and action taken by the
Architect and Owner on account of portions of the Work done by such Subcontractor.
9.6.4
Neither the Owner nor Architect shall have an obligation to pay nor to see to the payment of
moneys to a Subcontractor except as may otherwise be required by law.
9.6.5
Payment to material suppliers shall be treated in a manner similar to that provided in
Subparagraphs 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.
9.7
FAILURE OF PAYMENT
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9.7.1
If the Owner does not pay the Construction Manager at Risk the amount approved by the
Architect and the Owner, within thirty (30) days from the date specified in paragraph 9.4.3, then
the Construction Manager at Risk may, upon written notice to the Owner and Architect, stop
the Work until payment of such amount has been received. Unless Construction Manager at
Risk's action was improper or if the amount claimed is shown not to have been due, the Contract
Time may be adjusted appropriately and the Contract Sum may be increased by the amount of
the Construction Manager at Risk's reasonable costs of shut-down, delay and start-up, which
will be accomplished as provided in Article 7. Construction Manager at Risk will nevertheless be
liable to Owner for loss, damage, or expense caused by any wrongful stop-work by the
Construction Manager at Risk.
9.8
9.8.1
SUBSTANTIAL COMPLETION
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 and when
all required occupancy permits, if any, have been issued so the Owner can occupy and utilize
the Work for its intended use. The Construction Manager at Risk will secure and deliver to the
Owner written warranties and guarantees from its Subcontractors, Sub-Subcontractors and
suppliers bearing the date of Substantial Completion or some other date as may be agreed to
by the Owner and stating the period of warranty as required by the Contract Documents. The
Construction Manager at Risk is responsible for the warranty of all Work, whether performed
by it or by its Subcontractors at any tier. The Construction Manager at Risk will also participate
in a walk-through of the project within one year after Substantial Completion.
9.8.2
When the Construction Manager at Risk considers that the Work, or a portion thereof which
the Owner agrees to accept separately, is substantially complete, the Construction Manager at
Risk shall prepare and submit to the Architect and the Owner a comprehensive list of 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 Construction Manager at Risk to complete all Work in
accordance with the Contract Documents.
9.8.3
Upon receipt of the Construction Manager at Risk’s list, the Architect and the Owner will make
an inspection to determine whether the Work or designated portion thereof is substantially
complete. If inspection by the Architect or the Owner discloses any item, whether or not
included on the Construction Manager at Risk’s list, which is not sufficiently complete in
accordance with the requirements of the Contract, the Construction Manager at Risk shall
complete or correct such item. In such case, the Construction Manager at Risk shall then submit
a request for another inspection by the Architect and the Owner to determine Substantial
Completion.
9.8.4
When the Work or designated portion thereof is substantially complete, the Architect will notify
the Owner, and unless Owner disagrees with Architect’s opinion that Substantial Completion
has been reached, the Architect will prepare a Certificate of Substantial Completion which shall
establish the Date of Substantial Completion, shall establish the responsibilities of the Owner
and Construction Manager at Risk for security, maintenance, heat, utilities, damage to the Work
and insurance, and shall fix the time within which the Construction Manager at Risk shall furnish
all items on the list accompanying the Certificate. Warranties required by the Contract
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9.8.4.1
Documents shall commence on the Date of Substantial Completion of the Work or designated
portion thereof unless otherwise provided in the Certificate of Substantial Completion.
Owner may withhold approval of a Certificate of Substantial Completion of the Work until
building commissioning is successfully completed.
9.9
9.9.1
PARTIAL OCCUPANCY OR USE
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 Construction Manager
at Risk, provided such occupancy or use is consented to by the insurer as required under Clause
11.4.1.5 and authorized by public authorities having jurisdiction over the Work. Such partial
occupancy or use may commence whether or not the portion is substantially complete,
provided the Owner and Construction Manager at Risk have accepted in writing the
responsibilities assigned to each of them for payments, 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 Construction Manager at Risk considers a portion substantially complete, the
Construction Manager at Risk shall prepare and submit a list to the Architect and the Owner as
provided under Subparagraph 9.8.2. Consent of the Construction Manager at Risk 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 Construction Manager at
Risk.
9.9.2
Immediately prior to such partial occupancy or use, the Owner, Construction Manager at Risk
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
9.10.1
FINAL COMPLETION AND FINAL PAYMENT
Upon receipt of written notice from the Construction Manager at Risk that the Work is ready
for final inspection and acceptance, the Architect and the Owner will promptly make such
inspection and, when the Architect and the Owner finds the Work acceptable under the
Contract Documents and the Contract fully performed, the Architect will notify the Owner, and
unless the Owner disagrees with the Architect's opinion that Final Completion has been
reached, 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 the entire balance found to be due the Construction Manager
at Risk 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 Subparagraph 9.10.2
as precedent to the Construction Manager at Risk’s being entitled to final payment have been
fulfilled.
9.10.1.1
Final Completion of the Work shall be accomplished no later than thirty (30) days
following Substantial Completion except as noted in paragraph 9.10.3.
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9.10.1.2
If Final Completion is not accomplished thirty (30) days after Substantial
Completion, the Construction Manager at Risk will pay an amount specified in the
Contract Documents, not as a penalty, but as liquidated damages for Final
Completion until such time as Final Completion is accomplished and the conditions
of paragraph 9.10.1 and 9.10.2 are met. This provision is subject to the conditions
noted in paragraph 9.10.3.
9.10.2
Final payments shall not become due until the Construction Manager at Risk submits to the
Architect and the Owner (1) an affidavit that payrolls, bills for materials and equipment, and
other indebtedness connected with the Work for which the Owner or the Owner’s property
might be responsible or encumbered (less amounts withheld by Owner), have been paid or
otherwise satisfied, (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 the Construction Manager at Risk knows of no substantial reason that
the insurance will not be renewable to cover the period required by the Contract Documents,
(4) consent of surety, to final payment, (5) other data establishing payment or satisfaction of
obligations, such as receipts, releases and waivers of liens, claims, security interests or
encumbrances arising out of the Contract, to the extent and in such form as may be designated
by Owner, and (6) other closeout requirements noted in paragraph 9.2.2. If a Subcontractor
refuses to furnish a release or waiver required by the Owner, the Construction Manager at Risk
may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien. If such
lien remains unsatisfied after payments are made, the Construction Manager at Risk 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.
9.10.3
If, after Substantial Completion of the Work, final completion is materially delayed through no
fault of the Construction Manager at Risk or by issuance of Change Orders affecting final
completion, the Owner shall, upon application by the Construction Manager at Risk 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 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 Construction Manager at Risk 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.
9.10.4
The making of final payment shall constitute a waiver of Claims by the Owner except those
Claims arising from:
9.10.4.1
liens, Claims, security interests or encumbrances arising out of the Contract and
unsettled;
9.10.4.2
failure of the Work to comply with the requirements of the Contract Documents;
or,
9.10.4.3
terms of special warranties required by the Contract Documents.
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9.10.5
Acceptance of final payment by the Construction Manager at Risk, 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
10.1.1
SAFETY PRECAUTIONS AND PROGRAMS
The Construction Manager at Risk shall be responsible for initiating, maintaining and supervising
all safety precautions and programs in connection with the performance of the Contract.
10.1.2
The Construction Manager at Risk shall at all times conduct operations under this Contract in a
manner to avoid risk of bodily harm to persons or risk of damage to any property. The
Construction Manager at Risk shall promptly take precautions, which are necessary and
adequate against conditions created during the progress of the Work which involve a risk of
bodily harm to persons or a risk of damage to property. The Construction Manager at Risk shall
continuously inspect the Work, materials and equipment to discover and determine any such
conditions and shall be responsible for discovery, determination and correction of such
conditions. The Construction Manager at Risk shall comply and shall cause its Subcontractors
and others on the Project site to comply with applicable safety laws, standards, codes and
regulations of the jurisdiction in which the Project is located.
10.2
10.2.1
SAFETY OF PERSONS AND PROPERTY
The Construction Manager at Risk shall take reasonable precautions for safety of, and shall
provide reasonable protection to prevent damage, injury or loss to:
10.2.1.1
employees on the Work and other persons who may be affected hereby;
10.2.1.2
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 Construction
Manager at Risk or the Construction Manager at Risk’s Subcontractors or SubSubcontractors; and
10.2.1.3
other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks,
pavements, roadways, structures, and utilities not designated for removal,
relocation or replacement in the course of construction.
10.2.1.4
students, staff, faculty, visitors, and members of the general public on or in the
vicinity of Central New Mexico Community College property or facilities.
10.2.2
The Construction Manager at Risk shall give notices and comply with applicable laws,
ordinances, rules, 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 Construction Manager at Risk 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.
Page 99 of 128
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 Construction Manager at Risk shall
exercise utmost care and carry on such activities under supervision of properly qualified
personnel.
10.2.5
The Construction Manager at Risk 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 Paragraph 10.2 caused in whole or in part by the Construction Manager at Risk, 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 Construction Manager at Risk
is responsible, except damage or loss attributable solely 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
Construction Manager at Risk. The foregoing obligations of the Construction Manager at Risk
are in addition to the Construction Manager at Risk’s obligations stated elsewhere in the
Contract Documents.
10.2.6
The Construction Manager at Risk shall designate a responsible member of the Construction
Manager at Risk’s organization at the site whose duty shall be the prevention of accidents. This
person shall be the Construction Manager at Risk’s superintendent unless otherwise designated
by the Construction Manager at Risk in writing to the Owner and Architect.
10.2.7
The Construction Manager at Risk shall not load or permit any part of the construction or site
to be loaded so as to endanger its safety.
10.2.8
The Construction Manager at Risk shall promptly report in writing to the Owner and the
Architect all accidents arising out of or in connection with the Work which cause lost time injury,
personal injury, death or property damage, giving full details and statements of any witnesses.
In cases of serious bodily injury, death or serious property damage, Construction Manager at
Risk shall also contact Owner and Architect immediately by the most expeditious means.
10.2.9
The Construction Manager at Risk shall promptly notify the Owner and the Architect in writing
of any claims received by the Construction Manager at Risk for personal injury or property
damage related to the Work.
10.3
10.3.1
HAZARDOUS MATERIALS
If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to
persons resulting from a material or substance known by the Construction Manager at Risk to
be hazardous, including but not limited to asbestos, polychlorinated biphenyl (PCB), or other
substances listed by the EPA as hazardous, encountered on the site by the Construction
Manager at Risk, the Construction Manager at Risk shall, upon recognizing the condition,
immediately stop Work in the affected area, take steps to contain spread of the material and
immediately report the condition to the Owner and Architect in writing.
10.3.2
The Owner shall obtain the services of an agency certified to verify the presence or absence of
the material or substance reported by the Construction Manager at Risk and, in the event such
material or substance is found to be present, to verify that it has been rendered harmless. The
Page 100 of 128
Owner shall, at its own expense, employ persons to render material encountered on the Site
harmless. When the material or substance has been rendered harmless, Work in the affected
area shall resume upon written agreement of the Owner and Construction Manager at Risk.
The Contract Time and the Contract Sum shall be adjusted as provided in Article 7. “Rendered
Harmless” shall mean that the levels of such materials are less than any applicable exposure
standards set forth in OSHA or EPA regulations.
10.4
The Owner shall not be responsible under Paragraph 10.3 for materials and substances brought
to the site by the Construction Manager at Risk.
10.5
If, without negligence on the part of the Construction Manager at Risk, the Construction
Manager at Risk is held liable for the cost of remediation of a hazardous material or substance
solely by reason of performing Work as required by the Contract Document, the Contract shall
be adjusted in accordance with Article 7.
10.6
10.6.1
EMERGENCIES
In an emergency affecting safety of persons or property, the Construction Manager at Risk shall
use its best efforts to prevent threatened damage, injury of loss. Additional compensation or
extension of time claimed by the Construction Manager at Risk on account of an emergency
shall be determined as provided in Paragraph 4.3 and Article 7.
ARTICLE 11:
11.1
11.1.1
INSURANCE AND BONDS
CONSTRUCTION MANAGER AT RISK’S LIABILITY INSURANCE
The Construction Manager at Risk shall purchase from and maintain in a company or companies
lawfully authorized to transact insurance in New Mexico such insurance as will protect the
Construction Manager at Risk from claims set forth below which may arise out of or result from
the Construction Manager at Risk’s operations under the Contract and for which the
Construction Manager at Risk may be legally liable, whether such operations be by the
Construction Manager at Risk or by a Subcontractor or by anyone directly or indirectly employed
by any of them, or by anyone for whose acts any of them may be liable:
11.1.1.1 claims under workers’ compensation, disability benefit and other similar employee
benefit acts, which are applicable to the Work to be performed;
11.1.1.2 claims for damages because of bodily injury, occupational sickness or disease, or
death of the Construction Manager at Risk’s employees;
11.1.1.3 claims for damages because of bodily injury, sickness or disease, or death of any
person other than the Construction Manager at Risk’s employees;
11.1.1.4 claims for damages, other than to the Work itself, because of damage to or
destruction of tangible property, including loss of use resulting there from;
11.1.1.5 claims for damages because of bodily injury, death of a person or property, damage
arising out of ownership, maintenance, or use of a motor vehicle;
11.1.1.6 claims for bodily injury or property damage arising out of completed operations; and,
11.1.1.7 claims involving contractual liability insurance applicable to the Construction
Manager at Risk’s obligations under Paragraph 3.18.
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11.1.2
The insurance required by Subparagraph 11.1.1 shall be written for not less than limits of
liability specified herein or required by law, whichever coverage is greater. Coverage’s shall be
written on an occurrence basis and shall be maintained without interruption from date of
commencement of the Work until date of final payment and termination of any coverage
required to be maintained after final payment.
11.1.3
Certificates of insurance acceptable to the Owner shall be filed with the Owner prior to
commencement of the Work. These certificates and the insurance policies required by this
Paragraph 11.1 shall contain a provision that coverage’s afforded under the policies will not be
canceled or allowed to expire until at least 45 days’ prior written notice has been given to the
Owner. If any of the foregoing insurance coverage’s are required to remain in force after final
payment, and are reasonably available, an additional certificate evidencing continuation of such
coverage shall be submitted with the final Application for Payment as required by Subparagraph
9.10.2. The Construction Manager at Risk shall furnish information concerning reduction of
coverage on account of revised limits or claims paid under the General Aggregate, or both, with
reasonable promptness.
11.1.3.1
The Construction Manager at Risk will furnish the Owner one copy of each of the
Certificates of Insurance herein required for each copy of the Contract, showing the
coverage’s, limits of liability, covered operations, effective dates and dates of
expiration of policies of Insurance carried by the Construction Manager at Risk. The
Construction Manager at Risk will furnish to the Owner copies of any endorsements
that are subsequently issued amending coverage or limits. The Certificates of
Insurance will be in the form of AIA Document G705, or similar format acceptable
to the Owner. Such certificates will be filed with the Owner and will also contain
the following statements:
11.1.3.1.1
“the Governing Board of Central New Mexico Community College,
Central New Mexico Community College, its agents, servants and
employees are recognized as Additionally Insured.”
11.1.3.1.2
“the insurance coverage certified herein will not be canceled or
materially changed except after forty-five (45) calendar days written
notice has been provided to the Owner.”
11.1.3.1.3
“the insured will not violate, or permit to be violated, any conditions
of this policy, and will at all times satisfy the requirements of the
insurance copy transacting the policy.”
11.1.4
Minimum Required Coverage’s:
11.1.4.1
Compensation Insurance: During the life of this Contract the Construction Manager
at Risk will procure and will maintain Worker's Compensation Insurance as required
by applicable State law for all of the Construction Manager at Risk's employees to
be engaged at the site of the Project under this Contract and in case of any such
work being sublet, the Construction Manager at Risk will require the Subcontractor
or Sub-Subcontractor similarly to provide Worker's Compensation Insurance for all
of the Subcontractor's or Sub-Subcontractor's employees which are not covered
under the Construction Manager at Risk's Worker's Compensation Insurance. In
case any class of employee engaged in work on the Project under this Contract is
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11.1.4.2
11.1.4.3
11.1.4.4
not protected under the Worker's Compensation Statute, the Construction
Manager at Risk will provide and will cause each Subcontractor and SubSubcontractor to provide Employer's Insurance in an amount not less than
$1,000,000.
Construction Manager at Risk's Public Liability Insurance: The Construction
Manager at Risk will maintain liability insurance coverage equal to the maximum
liability amounts set forth in the New Mexico Tort Claims Act, Section 41-4-1 et seq.
NMSA 1978, as it now exists or may be amended. Limits as of the Effective Date are:
11.1.4.2.1 $400,000 per person, $750,000 per occurrence plus $300,000 for
medical, and $750,000 for property damage, for a total maximum liability of
$1,800,000 per occurrence.
Comprehensive Vehicle Liability: During the life of this Contract, including any
extensions to same, the Construction Manager at Risk will procure and will maintain
Vehicle Liability Insurance providing limits of liability not less than the following:
TYPE:
LIMIT OF LIABILITY:
Bodily Injury
$3,000,000 Each Occurrence
Property Damage
$3,000, 000 Each Occurrence
Subcontractor's and Sub-Subcontractor's Public Liability and Vehicle Liability
Insurance: The Construction Manager at Risk will either:
(a) Require each Subcontractor and Sub-Subcontractor to procure and maintain
during the life of the Subcontract or Sub-subcontract, Public Liability
Insurance of the types and amounts specified above, or
(b) Insure the activities of the Subcontractor and Sub-Subcontractor in the
Construction Manager at Risk’s policy as required under this Article.
11.2
11.2.1
OWNER’S LIABILITY INSURANCE
The Owner shall be responsible for purchasing and maintaining the Owner’s liability insurance.
11.3
11.3.1
PROJECT MANAGEMENT PROTECTIVE LIABILITY INSURANCE
Optionally, the Owner may require the Construction Manager at Risk to purchase and maintain
Project Management Protective Liability insurance from the Construction Manager at Risk’s
usual sources as primary coverage for the Owner’s, Construction Manager at Risk’s and
Architect’s vicarious liability for construction operations under the Contract. Unless otherwise
required by the Contract Documents, the Owner shall reimburse the Construction Manager at
Risk by increasing the Contract Sum to pay the cost of purchasing and maintaining such optional
insurance coverage, and the Construction Manager at Risk shall not be responsible for
purchasing any other liability insurance on behalf of the Owner. The minimum limits of liability
purchased with such coverage shall be equal to the aggregate of the limits required for
Construction Manager at Risk’s Liability Insurance under paragraphs 11.1 through 11.1.4.4.
11.3.2
To the extent damages are covered by Project Management Protective Liability insurance, the
Owner, Construction Manager at Risk and Architect waive all rights against each other for
damages, except such rights as they may have to the proceeds of such insurance. The policy
shall provide for such waivers of subrogation by endorsement or otherwise.
11.4
PROPERTY INSURANCE
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11.4.1
The Owner will provide property insurance written on a builder’s risk “all-risk” or equivalent
policy form in the amount of the initial Contract Sum, plus value of subsequent Contract
modifications and cost of materials supplied or installed by others, comprising total value for
the entire Project at the site on a replacement cost basis without optional deductibles. Such
property insurance shall be maintained, unless otherwise provided in the Contract Documents
or otherwise agreed in writing by all persons and entities who are beneficiaries of such
insurance, until final payment has been made as provided in Paragraph 9.10 or until no person
or entity other than the Owner has an insurable interest in the property required by this
Paragraph 11.4 to be covered, whichever is later. This insurance shall include interests of the
Owner, the Construction Manager at Risk, Subcontractors and Sub-Subcontractors in the
Project.
11.4.2
The Builder's Risk coverage to be furnished by the Owner is provided under the New Mexico
Public Schools Insurance Authority (NMPSIA), a copy of which is available for your perusal at the
office of CNM's Business Office. The Construction Manager at Risk is responsible for the
deductible which is $25,000.00
11.4.3
The policy does not insure for theft of any building materials or supplies. Nor is there coverage
provided for Construction Manager at Risk's, Subcontractor's or Sub-Subcontractor's tools,
machinery, or equipment. Any loss resulting there from will be borne by the Construction
Manager at Risk incurring the loss.
11.4.4
The Construction Manager at Risk will be responsible for the first deductible amount of any
insured loss.
11.4.5
If the Owner does not intend to purchase such property insurance required by the Contract and
with all of the coverage’s in the amount described above, the Owner shall so inform the
Construction Manager at Risk in writing prior to commencement of the Work. The Construction
Manager at Risk may then affect insurance, which will protect the interests of the Construction
Manager at Risk, Subcontractors and Sub-Subcontractors in the Work, and by appropriate
Change Order, the cost thereof shall be charged to the Owner. If the Construction Manager at
Risk is damaged by the failure or neglect of the Owner to purchase or maintain insurance as
described above, without so notifying the Construction Manager at Risk in writing, then the
Owner shall bear all reasonable costs properly attributable thereto.
11.4.6
Partial occupancy or use in accordance with Paragraph 9.9 shall not commence until the
insurance company or companies providing property insurance have consented to such partial
occupancy or use by endorsement or otherwise. The Owner and the Construction Manager at
Risk shall take reasonable steps to obtain consent of the insurance company or companies and
shall, without mutual written consent, take no action with respect to partial occupancy or use
that would cause cancellation, lapse or reduction of insurance.
11.4.7
Loss of Use Insurance: The Owner may provide such insurance as will insure the Owner against
loss of use of the Owner’s property due to fire or other hazards, however caused.
11.4.8
Waivers of Subrogation: The Owner and Construction Manager at Risk waive all rights against
(1) each other and any of their Subcontractors, sub-Subcontractors, agents and employees,
Page 104 of 128
each of the other, and (2) the Architect, Architect’s consultants, separate Construction Manager
at Risks described in Article 6, if any, and any of their Subcontractors, sub-Subcontractors,
agents and employees, for damages caused by fire or other causes of loss to the extent covered
by property insurance obtained pursuant to this Paragraph 11.4 or other property insurance
applicable to the Work, except such rights as they have to proceeds of such insurance held by
the Owner. The Owner or Construction Manager at Risk, as appropriate, shall require of the
Architect, Architect’s consultants, separate Construction Manager at Risks described in Article
6, if any, and the Subcontractors, sub-Subcontractors, agents and employees of any of them, by
appropriate agreements, written where legally required for validity, similar waivers each in
favor of other parties enumerated herein. The policies shall provide such waivers of
subrogation by endorsements or otherwise. A waiver of subrogation shall be effective as to a
person or entity even though that person or entity would otherwise have a duty of
indemnification, contractual or otherwise, did not pay the insurance premium directly or
indirectly, and whether or not the person or entity had an insurable interest in the property
damaged.
11.4.9
A loss insured under Owner’s property insurance shall be adjusted by the Owner and made
payable to the Owner for the insureds, as their interests may appear, subject to requirements
of any applicable mortgage clause and of Subparagraph 11.4.10. The Construction Manager at
Risk shall pay Subcontractors their just shares of insurance proceeds received by the
Construction Manager at Risk, and by appropriate agreements, written where legally required
for validity, shall require Subcontractors to make payments to their Sub-Subcontractors in
similar manner.
11.4.10
Cost of required bonds shall be charged against proceeds received. Proceeds so received, shall
be distribute by the Owner in accordance with such agreement as the parties in interest may
reach, or in accordance with an arbitration award in which case the procedure shall be as
provided in paragraph 4.5 and 4.6. If after such loss no other special agreement is made and
unless the Owner terminates the Contract for convenience, replacement of damaged property
shall performed by the Construction Manager at Risk after notification of a Change in the Work
in accordance with Article 7.
11.4.11
The Owner shall have power to adjust and settle a loss with insurers.
11.5
11.5.1
PERFORMANCE BOND AND PAYMENT BOND
As required by law, the Owner requires the Construction Manager at Risk to furnish bonds
covering faithful performance of the Contract and payment of obligations arising there under
as stipulated in bidding requirements or specifically required in the Contract Documents on the
date of execution of the Contract.
11.5.2
Upon the request of any person or entity appearing to be a potential beneficiary of bonds
covering payment of obligation arising under the Contract, the Construction Manager at Risk
shall promptly furnish a copy of the bonds or shall permit a copy to be made.
11.6
INDEMNIFICATION
The Construction Manager at Risk will defend, release, indemnify and save and hold harmless
the Owner, its officers, agents and employees from and against (1) any and all damages,
Page 105 of 128
including but not limited to loss of use, to property, or injuries to or death of any person or
persons, including property and officers, agents and employees of the Owner, and (2) any and
all claims, demands, suits, actions, liabilities, costs, expenses (including but not limited to
reasonable attorney fees, expert witness fees and all associated defense fees), causes of action,
or other legal, equitable or administrative proceedings of any kind or nature whatsoever, of or
by anyone whomsoever, regardless of the legal theory(ies) upon which premised, including but
not limited to contract, tort, express and/or implied warranty, strict liability, and workers
compensation, in any way resulting from, connected with, or arising out of, directly or indirectly,
actions or omissions of the Construction Manager at Risk or those performing under it in
connection with its operations or performance herewith or its use or occupancy of real or
personal property hereunder, including actions or omissions of Subcontractors and Suppliers,
and acts or omissions of officers, employees, agents, representatives, invitees or licensees of
the Construction Manager at Risk or its Subcontractors or Suppliers; provided however, that the
Construction Manager at Risk need not indemnify the Owner or its officers, agents and
employees from damages proximately caused by and apportioned to the negligence of the
Owner’s officers, agents and employees.
This indemnity clause will also cover the Owner’s defense costs, in the event that the Owner, in
its sole discretion elects to provide its own defense. The Owner retains the right to disapprove
counsel, if any, selected by Construction Manager at Risk to fulfill the forgoing defense
indemnity obligation, which right of disapproval will not be unreasonably exercised.
Insurance coverage requirements specified herein will in no way lessen or limit the liability of
the Construction Manager at Risk under the terms of this indemnification obligation. The
Construction Manager at Risk will obtain at its own expense any additional insurance that it
deems necessary for the Owner’s protection in the performance of this Agreement.
This defense and indemnification obligation will survive the expiration or termination of this
Agreement.
To the extent, if at all, Section 56-7-1 NMSA 1978 applies to this Contract, the indemnification
obligations in this Contract are subject to and limited by Section 56-7-1 NMSA 1978.
ARTICLE 12:
UNCOVERING AND CORRECTION OF WORK
12.1
12.1.1
UNCOVERING OF WORK
No work shall be covered until the Architect and Owner have been given written notice and
have had the opportunity to examine the Work.
12.1.2
If a portion of the Work is covered contrary to the Architect’s or Owner’s request or to
requirements specifically expressed in the Contract Documents, it must be uncovered for the
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Architect’s and Owner’s examination and be replaced at the Construction Manager at Risk’s
expense without change in the Contract Time.
12.1.3
If a portion of the Work has been covered which the Architect or Owner has not specifically
requested to examine prior to its being covered, the Architect or Owner may request to see
such Work and it shall be uncovered by the Construction Manager at Risk. 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, uncovering, correction and replacement shall be at the Construction
Manager at Risk’s expense. If the non-compliant condition was caused by the Owner, the
Owner shall be responsible for payment of such costs.
12.2
12.2.1
CORRECTION OF WORK
BEFORE OR AFTER SUBSTANTIAL COMPLETION
12.2.1.1
The Construction Manager at Risk shall promptly correct Work rejected by the
Architect or Owner 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 rejected
Work, including additional testing and inspections and compensation for the
Architect’s services and expenses shall be at the Construction Manager at Risk’s
expense.
12.2.2
AFTER SUBSTANTIAL COMPLETION
12.2.2.1
In addition to the Construction Manager at Risk’s obligations under Paragraph 3.6,
if, within one year after the date of Substantial Completion of the Work or
designated portion thereof or after the date for commencement of warranties
established under Subparagraph 9.9.1, 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 Construction
Manager at Risk shall correct it promptly after receipt of written notice from the
Owner or Architect to do so unless the Owner has previously given the Construction
Manager at Risk a written acceptance of such condition. The Owner or Architect
shall give such notice promptly after discovery of the condition. If the Construction
Manager at Risk fails to correct nonconforming Work within the time established in
Paragraph 2.4 the Owner may correct the Work in accordance with Paragraph 2.4.
12.2.2.2
The one-year period for correction of Work shall be extended with respect to
portions of Work first performed after Substantial Completion by the period of time
between Substantial Completion and Acceptance of the Work.
12.2.2.3
Corrected nonconforming Work shall have a new one-year period for correction,
starting when the corrected Work has been accepted by the Owner.
12.2.3
The Construction Manager at Risk shall remove from the site portions of the Work, which are
not in accordance with the requirements of the Contract Documents and are neither corrected
by the Construction Manager at Risk nor accepted by the Owner.
Page 107 of 128
12.2.4
The Construction Manager at Risk shall bear the cost of correcting damaged construction,
whether completed or partially completed, of the Owner or separate Construction Manager at
Risks caused by the Construction Manager at Risk’s correction or removal of Work which is not
in accordance with the requirements of the Contract Documents.
12.2.5
Nothing contained in this Paragraph 12.2 shall be construed to establish a period of limitation
with respect to other obligations which the Construction Manager at Risk might have under the
Contract Documents. Establishment of the one-year period for correction of Work as described
in Subparagraph 12.2.2 related only to the specific obligation of the Construction Manager at
Risk 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 Construction Manager at Risk’s liability
with respect to the Construction Manager at Risk’s obligations other than specifically to correct
the Work.
12.3
12.3.1
ACCEPTANCE OF NONCONFORMING WORK
If the Owner prefers to 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 Contract Sum will be adjusted as appropriate and equitable. Such adjustment
shall be effected whether or not final payment has been made.
ARTICLE 13:
MISCELLANEOUS PROVISIONS
13.1
13.1.1
GOVERNING LAW
The Contract shall be governed by the laws of the State of New Mexico.
13.2
13.2.1
SUCCESSORS AND ASSIGNS
The Construction Manager at Risk hereby binds itself, its partners, successors, assigns and legal
representatives to the Owner in respect to covenants, agreements and obligations contained in
the Contract Documents. Construction Manager at Risk shall not assign the Contract or
proceeds hereof without written consent of the Owner. If Construction Manager at Risk
attempts to make such an assignment without such consent, it shall be void and confer no rights
on third parties; the Construction Manager at Risk shall nevertheless remain legally responsible
for all obligations under the Contract. The Owner’s consent to any assignment is conditioned
upon Construction Manager at Risks entering into a written assignment which contains the
following language: “it is agreed that the funds to be paid to the assignee under this assignment
are subject to performance by the Construction Manager at Risk and to claims and to liens for
services rendered or materials supplied for the performance of the Work required in said
Contract in favor of all persons, firms, corporations rendering such services or supplying such
materials.” Except as provided in Subparagraph 13.2.2, 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 as assignment without such consent, that party shall nevertheless remain legally
responsible for all obligations under the Contract.
Page 108 of 128
13.2.2
The Owner may, without consent of the Construction Manager at Risk, assign the contract to
an institutional lender providing construction financing for the Project. In such event, the lender
shall assume the Owner’s rights and obligations under the Contract Document. The
Construction Manager at Risk shall execute all consents reasonably required to facilitate such
assignment.
13.3
13.3.1
WRITTEN NOTICE
All notices required to be given by the Construction Manager at Risk shall be made in writing.
Written notice, when served by the Owner, shall be considered served if delivered in person to
the Construction Manager at Risk, or delivered at or sent by registered or certified mail to the
last business address known to the party giving notice.
13.4
13.4.1
RIGHTS AND REMEDIES
Duties and obligations imposed by the Contract Documents and rights and remedies available
there under 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 Construction Manager at Risk shall
constitute a waiver of a right or duty afforded them under the Contract, nor shall such action or
failure to act constitute approval of or acquiescence in a breach thereunder, except as may be
specifically agreed in writing.
13.4.3
Construction Manager at Risk shall carry out the work and adhere to the current construction
schedule during all disputes or disagreements with the Owner. No work shall be delayed or
postponed pending resolution of any disputes or disagreements except as the Owner may
otherwise agree in writing.
13.4.4
Construction Manager at Risk shall specifically incorporate the obligations of this Article 13 into
the Subcontractor agreements, supply agreements and purchase orders for the Work and
require the same of any Subcontractors of any tier.
13.5
13.5.1
TEST AND INSPECTIONS
Test, inspections and approval of portions of the Work required by the Contract Document or
by laws, ordinances, rules, regulations or orders of public authorities having jurisdiction shall be
made at an appropriate time. Unless otherwise provided, the Construction Manager at Risk
shall make arrangements for such tests, inspections and approvals with the Owner’s designated
testing entity. The Construction Manager at Risk shall give the Owner and the Architect timely
notice of when and where tests and inspections are to be made so that the Owner and the
Architect may observe such procedures. The Owner shall bear cost of tests, inspections or
approvals.
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 Subparagraph
13.5.1, the Architect or the Owner will instruct the Construction Manager at Risk to make
arrangements for such additional testing, inspection or approval by the Owner’s independent
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testing entity, and the Construction Manager at Risk shall give timely notice to the Owner and
the Architect of when and where tests and inspections are to be made so that the Owner and
the Architect may observe such procedures. Such cost, except as provided in Subparagraph
13.5.3, shall be at the Owner’s expense.
13.5.3
If such procedures for testing, inspection or approval under Subparagraph 13.5.1 and 13.5.2
reveal failure of the portions of 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 Construction
Manager at Risk’s expense.
13.5.4
Required certificates of testing, inspections or approvals shall, unless otherwise required by the
Contract Documents, be secured by the Construction Manager at Risk and promptly delivered
to the Owner and the Architect.
13.5.5
If the Architect or the Owner are to observe test, inspections or approvals required by the
Contract Documents, the Architect or Owner will do so and, where practicable, at the normal
place of testing.
13.5.6
Test or inspections conducted pursuant to the Contract Documents shall be made to avoid
unreasonable delay in the Work.
13.6
13.6.1
COMMENCEMENT OF STATUTORY LIMITATION PERIOD
As between the Owner and Construction Manager at Risk
13.6.1.1 Before Substantial Completion: As to acts or failures to act occurring prior to the
relevant date of Substantial Completion, as described in Subparagraph 9.8.1, any
applicable statute of limitations shall commence to run and any alleged cause of
action shall be deemed to have accrued in any and all events not later than such
date of Substantial Completion;
13.6.1.2 Between Substantial Completion and final Certificate for Payment: As
to acts
or failures to act occurring subsequent to the relevant date of Substantial Completion
and prior to issuance of the final Certificate for Payment, any applicable statute of
limitations shall commence to run and any alleged cause of action shall be deemed
to have accrued in any and all events not later than the date of issuance of the final
Certificate for Payment; and
13.6.1.3 After Final Certificate for Payment: As to acts or failures to act occurring after the
relevant date of issuance of the Final Certificate for Payment, any applicable statute
of limitations shall commence to run and any alleged cause of action shall be deemed
to have accrued in any and all events not later than the date of any act or failure to
act by the Construction Manager at Risk pursuant to and Warrant provided under
Paragraph 3.5, the date of any correction of the Work or failure to correct the Work
by the Construction Manager at Risk under Paragraph 12.2, or the date of actual
commission of any other act or failure to perform any duty or obligation by the
Construction Manager at Risk or Owner, whichever occurs last.
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13.6.1.4 Equal Employment Opportunity: The Construction Manager at Risk agrees not to
discriminate against any employee or applicant for employment because or race,
color, religion, sex, national origin or sexual preference, in accordance with U.S.
Executive Order 11246, as amended, and N.M. Executive Order 85-15 or any other
basis prohibited by law. If the Contract constitutes a federally assisted construction
contract within the meaning of 41 C.F.R. 60-1.3 (1987), then the equal opportunity
clause of 41 C.F.R. 60-1.4 (b) is incorporated herein by reference.
13.7
WAGE RATES
13.7.1 Minimum Wage: Minimum wages will be paid as determined by the Secretary of Labor,
U.S. Department of Labor, Washington, D.C. 20210, or as determined by the Office of the Labor
Commissioner, State of New Mexico, Santa Fe, New Mexico, as following hereinafter. The
minimum wages to be paid on the project will be the higher of the Wage Determinations for
each class of laborers and mechanics. All rules and regulations pursuant to State and/or Federal
Labor Laws will apply to this work
13.7.2 Payment of Employees and Weekly Payrolls: Attention of bidders is called to the fact
that minimum wage rates to be paid various classes of laborers and mechanics, if based upon
wages determined by director of the Labor Relations Division of the New Mexico Department
of Workforce Solutions (the “Director”), will be in accordance with Section 13-4-11 N.M.S.A.
1978 Compilation.
13.7.2.1
The Construction Manager at Risk and every subcontractor, employer or
a person acting as a contractor shall pay all mechanics and laborers employed on
the site of the Project, unconditionally and not less often than once a week and
without subsequent unlawful deduction or rebate on any account, the full amounts
accrued at time of payment computed at wage rates and fringe benefit rates not
less than those determined pursuant to Subsection 13.7.2.2 of this section to be
the prevailing wage rates and prevailing fringe benefit rates issued for the Project.
13.7.2.2
The prevailing wage rates and prevailing fringe benefit rates to be paid
shall be posted by the Construction Manager at Risk in a prominent and easily accessible
place at the site of the Work; and it is further provided that there may be withheld from
the Construction Manager at Risk or contractor, subcontractor, employer or a person
acting as a contractor so much of accrued payments as may be considered necessary by
the Owner’s Representative to pay to laborers and mechanics employed on the Project
the difference between the prevailing wage rates and prevailing fringe benefit rates
required by the Director to be paid to laborers and mechanics on the work and the wage
rates and fringe benefit rates received by the laborers and mechanics and not refunded
to the Construction Manager at Risk, contractor, subcontractor, employer or a person
acting as a contractor or the contractor's, subcontractor's, employer's or person's
agents.
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13.8.3
NEW MEXICO STATUTE RELATING TO RESIDENCE REQUIREMENTS FOR PUBLIC EMPLOYEES
AND THOSE EMPLOYED ON PUBLIC WORK PROJECTS
13.8.3.1
Residential Preference: In accordance with Section 13-4-2, N.M.S.A. 1978, as
amended, any Bidder desiring the preference of “Resident Contractor” must
possess all required licenses and meet the residency requirements at the time the
contract is advertised for bids. Contractors seeking to qualify as a resident
Contractor must also have completed the application form and submitted it to the
state-purchasing agent prior to submission of their bid. The Resident Contractor’s
Certificate number must be received by the Construction Manager at Risk by the
time the Owner is ready to award the contract.
13.9
13.9.1
RECORDS
The Owner shall have access to and the right to examine any accounting or other records of the
Construction Manager at Risk involving transactions and Work related to this Contract for five
(5) years after final payment or five (5) years after the final resolution of any ongoing disputes
at the time of final payment. All records shall be maintained in accordance with generally
accepted accounting procedures, consistently applied. Subcontractors of any tier shall be
required by Construction Manager at Risk to maintain records and to permit audits as required
of Construction Manager at Risks herein.
13.10
13.10.1
MISCELLANEOUS GENERAL PROVISIONS
Any specific requirement in this Contract that the responsibilities or obligations of the
Construction Manager at Risk also apply to a Subcontractor is added for emphasis and are also
hereby deemed to include a Subcontractor of any tier. The omission of a reference to a
Subcontractor in connection with any of the Construction Manager at Risk’s responsibilities or
obligation shall not be construed to diminish, abrogate or limit any responsibilities or
obligations of a Subcontractor of any tier under the Contract Documents or the applicable
Subcontract agreement.
13.10.2
This Contract shall be interpreted, construed, enforced and regulated under and by the laws of
the State of New Mexico. Whenever possible, each provision of this Contract shall be
interpreted in a manner as to be effective and valid under applicable law. If, however, any
provision of this Contract, or a portion thereof, is prohibited by law or found invalid under any
law, only such provision or portion thereof shall be ineffective, without invalidating of affecting
the remaining provisions of this Contract or valid portions of such provision, which are hereby
deemed severable, provided the intent of the parties may still be given effect. Construction
Manager at Risk and Owner further agree that in the event any provision of this Contract, or a
portion thereof, is prohibited by law or found invalid under any law, this Contract shall be
reformed to replace such prohibited or invalid provisions or portion thereof with a valid and
enforceable provision which comes as close as possible to expressing the intention of the
prohibited or invalid provision.
13.10.3
Construction Manager at Risk and Owner each agree that the State of New Mexico District Court
of the County where the Project is located shall have exclusive jurisdiction to resolve all Claims
and any issue and disputes between Construction Manager at Risk and Owner. Construction
Manager at Risk agrees that it shall not file any petition, complaints, lawsuit or legal proceedings
Page 112 of 128
against Owner in any other court other than the State of New Mexico District Court for the
County where the Project is located.
13.10.4
Owner’s total liability to Construction Manager at Risk and anyone claiming by, through or
under Construction Manager at Risk for any Claim, cost, loss, expense or damage caused in part
by the fault of Owner and in part by the fault of Construction Manager at Risk or any other
entity or individual shall not exceed the percentage share that Owner’s fault bears to the total
fault of Owner, Construction Manager at Risk and all other entities and individuals as
determined on the basis of comparative fault principles.
13.10.5
Construction Manager at Risk agrees that Owner shall not be liable to Construction Manager at
Risk for any special, indirect, incidental, or consequential damage whatsoever, whether caused
by Owner’s negligence, fault, errors or omissions, strict liability, breach of contract, breach of
warranty or other cause or causes whatsoever. Such special, indirect, incidental or
consequential damages include, but are not limited to loss of profits, loss of savings or revenue,
loss of anticipated profits, labor inefficiencies, idle equipment, home office overhead, and
similar types of damages.
13.10.6
Nothing contained in this Contract or the Contract Documents shall create any contractual
relationships with or cause of action in favor of a third party against the Owner.
13.10.7
No member or office of the Governing Board of Central New Mexico Community College incurs
or assumes any individual or personal liability under the Contract or by reason of the default of
the Owner in the performance of any terms thereof. Construction Manager at Risk releases and
discharges all members or officers of the Governing Board of Central New Mexico Community
College from any liability as a condition of and as consideration for the award of the Contract
to Construction Manager at Risk.
13.10.8
Owner reserves the right to conduct building commissioning activities during the construction,
testing and acceptance phases of the Work.
13.10.8.1 If the Owner includes the building commissioning plan, including a building components testing
schedule, in the plans and specifications for the Project, Construction Manager at Risk shall
include all costs associated with commissioning support in the base bid for the Project and
Construction Manager at Risk’s schedule shall reflect all time associated with the commissioning
plan, including a building component testing schedule, commissioning and commissioning
support in Construction Manager at Risk’s schedule. The Construction Manager at Risk shall not
be entitled to a change in the Contract price or time for Owner’s commissioning activities unless,
without the fault of or delay by the Construction Manager at Risk or those for whom
Construction Manager at Risk is responsible, the commissioning agent fails to conduct the
component testing in accordance with the building component testing schedule. Should the
Construction Manager at Risk:
13.10.8.1.1
fail to complete component testing checklists in accordance with the
commissioning plan;
Page 113 of 128
13.10.8.1.2
13.10.8.1.3
install components or systems in such a manner that they fail to achieve the
minimum levels of performance set forth in the commissioning plan; or
fails to provide equipment and other components of systems that do not meet
the minimum performance levels required by the specifications or identified in
the submittals
Construction Manager at Risk shall not be entitled to any time extension or adjustment of the
contract price for correction of such conditions and shall be liable to Owner for any additional
costs of commissioning caused by such conditions in addition to any liquidated damages for delay
in Project completion.
13.10.8.2 If, after entering into the Agreement, the Owner determines that building commissioning shall
be required, the Contract shall be modified by Change Order or Construction Change Directive
as provided in Article 7.
ARTICLE 14:
TERMINATION OF THE CONTRACT
14.1
14.1.1
TERMINATION BY THE CONSTRUCTION MANAGER AT RISK
The Construction Manager at Risk may terminate the Contract if the Work is stopped for a
period of 30 consecutive days through no act or fault of the Construction Manager at Risk or a
Subcontractor, Sub-Subcontractor or their agents or employees or any other persons or entities
performing portions of the Work under contract with the Construction Manager at Risk, for any
of the following reasons:
14.1.1.1
Issuance of an order of a court or other public authority having jurisdiction, which
requires all Work to be stopped;
14.1.1.2
An act of government, such as a declaration of national emergency, which requires
all Work to be stopped;
14.1.1.3
The Work is stopped pursuant to Subparagraph 9.7.1.
14.1.2
The Construction Manager at Risk may terminate the Contract if, through no act or fault of the
Construction Manager at Risk or a Subcontractor, Sub-Subcontractor or their agents or
employees or any other persons performing portions of the Work under contract with the
Construction Manager at Risk, repeated suspensions, delays or interruptions of the entire Work
by the Owner as described in Paragraph 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. A condition to receiving the payment due under this Subparagraph 14.1.2,
Construction Manager at Risk shall execute and deliver to the Owner such documents requested
by the Owner, including the legal assignment of Construction Manager at Risk’s contractual
rights with respect to any Contracts or documents of Construction Manager at Risk pertaining
to the Work. In addition, Construction Manager at Risk shall return all drawings, plans,
specifications, and other materials pertaining to the Work to the Owner; and will further
execute a full release, waiver and assignment of Construction Manager at Risk’s rights in
interest on a form acceptable to the Owner.
Page 114 of 128
14.1.3
If one of the reasons described in Subparagraph 14.1.1 or 14.1.2 exists, the Construction
Manager at Risk may, upon seven days written notice to the Owner and Architect, terminate
the Contract and recover from the Owner payment for Work executed and for proven loss with
respect to materials, equipment, tools, construction equipment and machinery, including
reasonable overhead, profit, and damages.
14.1.4
If the Work is stopped for a period of 60 consecutive days through no act or fault of the
Construction Manager at Risk or a Subcontractor or their agents or employees or any other
persons performing portions of the Work under contract with the Construction Manager at Risk
because the Owner has persistently failed to fulfill the Owner’s obligations under the Contract
Document with respect to matters important to the progress of the Work, the Construction
Manager at Risk may, upon seven additional days written notice to the Owner and the Architect,
terminate the Contract and recover from the Owner as provided in Subparagraph 14.1.3.
14.2
14.2.1
TERMINATION BY THE OWNER FOR CAUSE
The Owner may terminate the Contract if the Construction Manager at Risk refuses or fails to
supply enough properly skilled workers or proper materials.
14.2.1.1
Fails to make payment to Subcontractors for materials or labor in accordance with
the respective agreements between the Construction Manager at Risk and the
Subcontractors, or otherwise fails to comply with the New Mexico Prompt Payment
Act (NMSA 57-28-1 et seq.).
14.2.1.2
Disregards laws, ordinances, rules, regulations, or orders of a public authority
having jurisdiction; or
14.2.1.3
Disregards the authority of the Owner’s Representative or Architect;
14.2.1.4
Fails to furnish the Owner with assurance satisfactory to the Owner evidencing the
Construction Manager at Risk’s ability to complete the work in compliance with all
the requirements of the Contract Documents.
14.2.1.5
Fails after commencement of the Work to proceed continuously with the
construction and completion of the Work for more than ten (10) consecutive days,
except as permitted under the Contract Documents;
14.2.1.6
Fails to maintain a satisfactory rate of progress with the Work or fails to comply
with approved progress schedules;
14.2.1.7
Otherwise is guilty of a substantial breach of the Contract Documents.
14.2.2
When any of the reasons described in Subparagraph 14.2.1.1 through 14.2.1.7 exist, the Owner,
may without prejudice to any other rights or remedies and after giving the Construction
Manager at Risk and the Construction Manager at Risk’s surety seven days written notice,
terminate employment of the Construction Manager at Risk and may, subject to any prior rights
of the surety;
14.2.2.1
Take possession of the site and of all materials, equipment, tools, and construction
equipment and machinery thereon owned by the Construction Manager at Risk;
14.2.2.2
Accept assignment of Subcontract agreement pursuant to Paragraph 5.4, and
14.2.2.3
Finish the Work by whatever reasonable method the Owner may deem expedient.
Page 115 of 128
14.2.3
When the Owner terminates the Contract for one of the reasons stated in Subparagraph 14.2.1,
the Construction Manager at Risk shall not be entitled to receive further payment until the Work
is finished.
14.2.4
If the unpaid balance of the Contract Sum exceeds cost of finishing the Work, including
compensation for the Architect’s services and other expenses and damages incurred by the
Owner and not expressly waived, such excess may be paid to the Construction Manager at Risk.
If such costs and damages exceed the unpaid balance, the Construction Manager at Risk shall
pay the difference to the Owner. The amount to be paid to the Construction Manager at Risk
or Owner, as the case may be, shall be certified by the Architect, upon application, and this
obligation for payment shall survive termination of the Contract.
14.2.5
In exercising the Owner’s right to secure completion of the Work under any of the provisions
hereof, the Owner shall have the right to exercise the Owner’s sole discretion as to the manner,
methods, and reasonableness of costs of competing the Work.
14.2.6
The rights of the Owner to terminate pursuant to Article 14.2 will be cumulative and not
exclusive and shall be in addition to any other remedy provided by law or the Contract
Documents.
14.2.7
Should the Construction Manager at Risk fail to achieve final Completion of the Work within
thirty (30) days following the date of Substantial Completion, the Owner may exercise its rights
under Article 14.2 or as mutually agreed between the parties.
14.3
14.3.1
SUSPENSION BY THE OWNER FOR CONVENIENCE
The Owner may, without cause, order the Construction Manager at Risk in writing to suspend,
delay or interrupt the Work in whole or in part for such period of time as the Owner may
determine.
14.3.2
The Contract Sum and the Contract Time may be adjusted for increases in cost and time caused
by suspension, delay or interruption as described in Subparagraph 14.3.1. Adjustment of the
Contract Sum may include profit. No adjustments shall be made to the extent.
14.3.2.1
That performance is, was or would have been so suspended, delayed or interrupted
by another cause for which the Construction Manager at Risk is responsible; or
14.3.2.2
That an equitable adjustment is made or denied under another provision of the
Contract.
14.4
14.4.1
TERMINATION BY THE OWNER FOR CONVENIENCE
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 Construction Manager at Risk shall;
14.4.2.1
Cease operations as directed by the Owner in the notice.
Page 116 of 128
14.4.2.2
14.4.2.3
Take actions necessary, or that the Owner may direct, for the protection and
preservation of the Work, and
Except for the Work directed to be performed prior to the effective date of
termination stated in the notice, terminate all existing Subcontract agreements and
purchase orders and enter into no further Subcontract agreements and purchase
orders.
In case of such termination for the Owner’s convenience, the Construction Manager at Risk shall be
entitled to receive payment for Work executed, and costs incurred by reason of such termination, along
with reasonable overhead and profit on the Work not executed.
Page 117 of 128
EXHIBIT B TO CMAR CONTRACT
CENTRAL NEW MEXICO COMMUNITY COLLEGE
GMP AMENDMENT TO CMAR CONTRACT
THIS AMENDMENT IS BETWEEN:
OWNER:
CENTRAL NEW MEXICO COMMUNITY COLLEGE
525 BUENA VISTA SE
ALBUQUERQUE, NM 87106
And:
_________________________________________
_________________________________________
_________________________________________
CONSTRUCTION MANAGER AT RISK
(" CMAR"):
The Project is:
Main Campus – Building “A” Renovation
Date of Original CMAR Contract ("Contract"):
Date of this Amendment:
The Owner and CMAR hereby amend the Contract as set forth below. Capitalized terms not otherwise used
herein shall have the meanings given in the Contract. Except as amended hereby, the Contract remains in
full force and effect.
1.
GMP. The parties agree that the GMP for the Project is $_______________, consisting of the
Preconstruction Fee, the Cost of the Work, the fixed amount for Specified General Conditions Work and the
CMAR Fee (stated as a fixed dollar lump sum amount), as follows:
Preconstruction Fee:
$ _______
The Cost of the Work:
$ _______
CMAR Fee (___% of the Cost of the Work):
$ _______
Specified General Conditions:
$________
GMP (Total of above categories):
$ _______
For purposes of determining the GMP, the Cost of the Work includes the CMAR’s GMP Contingency, the
Fixed Cost for CMAR Field Work, and the costs of all components and systems required for a complete, fully
functional facility.
2.
Basis of GMP. The GMP is based on the GMP Supporting Documents attached as
Attachments including the Allowances, assumptions, exclusions, unit prices, and alternates designated
Page 118 of 128
therein.
3.
Plans and Specifications. The Plans and Specifications for the Project are as listed in the GMP
Supporting Documents. CMAR shall perform Construction Phase Services in accordance with the Plans and
Specifications and the other Contract Documents.
4.
Substantial Completion Date. Notwithstanding any provision in the GMP Supporting Documents to
the contrary, the required date for Substantial Completion shall [NOTE-SELECT ONE: a) Remain that stated
in the Contract, b) Insert if different Substantial Completion Date has been agreed:
_________________________, 20__.]
THIS CONTRACT is executed in two original copies of which one is to be delivered to the CMAR
and the remainder to Owner.
CMAR FIRM: _________________________________________
BY: ____________________________________________
Signature
DATE: __________________
PRINTED NAME/TITLE: _________________________________________
CMAR's Federal I.D. No: ___________________
CMAR’s New Mexico Contractor’s License No: __________________
CMAR’s New Mexico Gross Receipt’s Tax No: __________________
OWNER: CENTRAL NEW MEXICO COMMUNITY COLLEGE
BY: _________________________________
DATE: _____________
Wanda Helms
TITLE: Executive Director of Purchasing and Materials Management
BY: _________________________________
DATE: _____________
Katherine Ulibarri
TITLE: Vice President for Finance and Operations
The following documents would be attached to the GMP Amendment when it is executed:
Attachment A: Plans, Specifications, Supplementary Conditions of the Contract, on which the Guaranteed
Maximum Price is based, pages ____ through ___ dated _______________.
Attachment B:
Allowance items, pages ____ through ____ dated _________________.
Page 119 of 128
Attachment C: Assumptions and clarifications made in preparing the Guaranteed Maximum Price, pages
___ through _____, dated ____________________.
Attachment D:
Completion schedule, pages _____ through ____, dated _____________.
Attachment E:
Alternate prices, pages ____ through ____, dated __________________.
Attachment F:
Unit prices, pages ____ through ____, dated ______________________.
Page 120 of 128
ATTACHMENT 1 TO CMAR CONTRACT
SUMMARY MATRIX OF COST ALLOCATION
ITEM
DOCUMENT REFERENCE
FEE
SPECIFIED GENERAL
CONDITIONS
DOCUMENT:
CONTRACT FOR CONSTRUCTION MANAGER AT RISK (CMAR CONTRACT)
CMAR Field Work
ARTICLE 1.6
Payment and
Performance Bond
ARTICLE 3.2.4
X
ARTICLE 3.3.63.3.13
X
Construction
Management Services
Construction
Management Services
ARTICLE 3.3.14
CMAR’s Project Staff
ARTICLE 4.5
Costs for Preconstruction
Services in excess of the
Allowance for Preconstruction ARTICLE 6.2
Determination of the GMP
ARTICLE 6.4.16.4.6, 6.4.8
COST
OF THE
WORK
X
X
X
X
X
Determination of the GMP
ARTICLE 6.4.7
(Contingency for development of Plans and Specs)
X
GMP Contingency
ARTICLE: 6.9
X
CMAR Fee
ARTICLE 8.2.1
Specified General
Conditions Work
ARTICLE 8.2.2
X
Small and Minority
Business Enterprise
Participation.
ARTICLE 11.1.2
X
Subcontractor selection
ARTICLE 11.3
X
X
Page 121 of 128
ITEM
DOCUMENT REFERENCE
FEE
SPECIFIED GENERAL
CONDITIONS
Protests
ARTICLE 11.6
X
Accounting: Audit Access
ARTICLE 12.1
X
DOCUMENT:
COST
OF THE
WORK
GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION MANAGER AT RISK
(CNM GENERAL CONDITIONS)
Review of Contract Documents
And Field Conditions
ARTICLE: 3.2.13.2.2
X
Supervision and Construction
Procedures
ARTICLE: 3.3
X
Clean Up
ARTICLE: 3.4.4
X
Permits and Fees
ARTICLE: 3.8.1
X
Allowances
ARTICLE: 3.9
X
Construction Schedule
ARTICLE: 3.10.13.10.2
X
ARTICLE 3.11.1
X*
Documents and
Samples at the site

- The cost to maintain record documents on site is a Specified General Condition. The cost
of the documents and samples is a COST OF THE WORK.
Shop Drawings, Product Data
And Samples

X*
ARTICLE 3.12.5
X*
X*
- The cost to review and submit shop drawings, product data and samples to the Architect
for review is a Specified General Condition. The cost of these documents is a COST OF THE
WORK.
Royalties and Licenses
ARTICLE: 3.15
X
Page 122 of 128
ITEM
DOCUMENT REFERENCE
FEE
SPECIFIED GENERAL
CONDITIONS
Resolutions of Claims
And Disputes
ARTICLE: 4.4
X
Mediation
ARTICLE: 4.5
X
Arbitration
ARTICLE: 4.6
X
Payments and Completion
ARTICLE 9
X
ARTICLE 10, except
ARTICLE 10.2.3
X
Protection of Persons
And Property
Protection of Persons
And Property
ARTICLE 10.2.3
Insurance
ARTICLE 11.1
X
Builder’s Risk Insurance
(Deductible)
ARTICLE 11.4.4
X
Bonds
ARTICLE 11.5
X
COST
OF THE
WORK
X
Page 123 of 128
ATTACHMENT A: FORM OF PROPOSAL FOR CMAR FEE AND SPECIFIED GENERAL
CONDITIONS FOR Central New Mexico Community College
Main Campus – Building “A” Renovation
The Undersigned submits the following proposal.
PROPOSAL
Pursuant to and in compliance with the Request for Proposal, the undersigned certifies, having carefully
examined the Contract Documents and conditions affecting the Work, and being familiar with the site:
proposes to furnish all labor, materials, equipment and services necessary to complete the work as follows:
1.
Percent Fee (Percentage of Total Estimated Cost of the Work):
_________% x $6,500,000.00 (COST OF THE WORK) _______________________
________________________________________________________Dollars
($______________________________)
(Dollar Amount for CMAR Fee)
2.
Specified General Conditions:
_______________________________________________________ Dollars
($______________________________)
TOTAL PROPOSAL (Total of 1 and 2 above)
__________________________________________________________ Dollars
($ _____________________________)
NMGRT:
Applicable New Mexico Gross Receipts Tax shall not be included in any amounts on this Proposal Form.
TIME FOR COMPLETION AND LIQUIDATED DAMAGES
The Undersigned hereby agrees, if awarded the Contract, to complete all of the Work und the Contract by
the time specified in Article 5 of the Contract for Construction Manager at Risk, and also agrees to the amount
specified for Liquidated Damages in that Article.
ACKNOWLEDGEMENTS
By submitting a proposal, Offeror acknowledges the following:
That they will provide, for the duration of the project, the full complement of staff that was designated/assigned
to this project it the written response to the Request for Qualifications.
Page 124 of 128
That they have taken steps reasonable necessary to ascertain the nature and location of the Work, and that
they have investigated and are satisfied as to the general and local conditions which can affect the Work or
the cost of the Work.
That any drawings and specifications that are made a part of this Proposal are for “information purposes
only” and shall not be used for construction.
That their Proposal is based upon a schedule and assumptions which incorporate the conditions set forth
above and in other Sections of the RFP as well as CNM Contract for Construction Manager at Risk, the Matrix
of Cost Allocation and the General Conditions for the Contract for Construction Manager at Risk attached as
SECTION C to the Request for Proposals and incorporated here by reference.
CONTRACT AND BOND
A proposal bond in the amount of five percent (5 %) of the MACC is attached.
For the purposes of calculating the costs of payment and performance bonds and insurance, the Offeror shall
assume a MACC as indicated in the Request for Proposals.
If Offeror is selected for award and a Preconstruction Fee is negotiated between Offeror and Owner, the
Undersigned agrees to execute a contract on CNM Contract for Construction Manager at Risk form.
If a Guaranteed Maximum Price (GMP) is agreed between the Owner and the Construction Manager at Risk,
the GMP will be established by GMP Amendment. The GMP shall equal the sum of the preconstruction fee,
the Negotiated COST OF THE WORK, the Percent Fee bid in this proposal times the Negotiated COST OF
THE WORK and the fixed dollar amount bid in this proposal for Specified General Conditions Work. The
Undersigned agrees to execute the GMP Amendment and to furnish bonds and insurance as required by the
Contract Documents.
ADDENDUM RECEIPT
Receipt of the all addenda to the Contract Documents must be acknowledged in Section E attached hereto.
NAME OF FIRM___________________________________________________
NEW MEXICO STATE CONTRACTOR’S LICENSE NO: __________________________
LABOR ENFORCEMENT FUND REGISTRATION NO: ___________________________
CONTRACTOR’S NEW MEXICO GROSS RECEIPTS TAX NO: ____________________
CONTRACTOR’S FEDERAL EMPLOYEE IDENTIFICATION NO: ___________________
SIGNED BY__________________________________________________________________
DATE
Page 125 of 128
OFFICIAL CAPACITY________________________________________________________
ADDRESS____________________________________________________________________
CITY AND STATE_____________________________________ZIP____________________
DATE_______________________________________TELEPHONE______________
FAX________________________________________E-MAIL__________________
Page 126 of 128
ATTACHMENT B: RFP PROPOSAL BOND
FOR
RFP #________________ for Construction Manager at Risk
PROJECT NAME: Main Campus – Building “A” Renovation
INSTRUCTIONS: This executed form must accompany your RFP submittal. Failure
to provide this executed form and a Proposal Bond per the terms and conditions
described herein shall render your RFP submittal as non-responsive.
The New Mexico Procurement Code, 13-1-124.4, Construction Manager at Risk delivery method
authorized; multiphase selection procedure, Para. C(4), requires per 13-1-146 NMSA 1978 Requirement
for bid security, that “bid security shall be required of bidders or offerors for construction contracts when
the price is estimated by the procurement officer to exceed $25,000, bid security in an amount equal to
at least five percent of the amount of the bid shall be a bond provided by a surety company authorized to
do business in this state, or the equivalent in cash, or otherwise supplied in a form satisfactory to the state
agency or a local public body.”
If the Offeror/undersigned, per the three-step process, is short-listed to receive a Request for Proposal,
the Offeror shall attach a Proposal Bond in the amount of 5% of the MACC as proposal security. And, if
the Offeror/undersigned herein is awarded a CNM Contract for Construction Manager at Risk (CMAR
Contract), the Proposal Bond attached herein shall be in effect until the pre-construction services are
satisfactorily completed per the contract, and the Guaranteed Maximum Price Amendment is executed.
If the contracted Offeror does not satisfactorily complete the terms and conditions of the Pre-construction
contract resulting in the execution of the Guaranteed Maximum Price Amendment, the Proposal Bond
shall be forfeited, except that if through no fault of the CMAR, the Owner chooses not to execute the
Guaranteed Maximum Price Amendment.
The undersigned, as an authorized representative for the Company named below, acknowledges that the
Offeror has examined this RFP with its related documents and is familiar with all the conditions
surrounding the Proposal Bond for CMAR projects per 13-1-124.1, Short title; NMSA 1978 of the NM
Procurement Code. Offeror hereby agrees to furnish a Proposal Bond in the amount of 5% of the MACC
for the referenced project that, if awarded a CMAR pre-construction contract, said Proposal Bond shall be
in effect as good faith to perform the required work.
Page 127 of 128
This acknowledgement and acceptance shall be signed and returned with the Proposal Bond as a part of
your RFP submittal.
FIRM: ___________________________________________________________________
REPRESENTED BY: __________________________________________________________
(Printed Name & Title)
ADDRESS: ___________________________________________________________________
CITY: _________________________ STATE: ___________ ZIP: ___________
TELEPHONE: ___________________ FAX: ___________________________
E-Mail: ___________________________________________________________
Signature:
Date:
____________________________________________________________
(Signature of Person authorized to sign for Firm)
NOTARY
SEAL:
DATE:
Page 128 of 128