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Dick Anderson Contract Weatherby BuildingCONSTRUCTION MANAGER AT RISK CONTRACT FOR PRECONSTRUCTION SERVICES BETWEEN THE SHERIDAN ECONOMIC & EDUCATION DEVELOPMENT AUTHORITY AND DICK ANDERSON CONSTRUCTION, INC. Parties. This Contract is made and entered into by and between the Sheridan Economic & Education Development Authority, [hereafter "SEEDA"] whose address is 55 Grinnell Plaza, Sheridan, WY 82801; and Dick Anderson Construction, Inc. "Construction Manager at- Risk", [hereafter "CMAR"], whose address is 2675 Heartland Drive, Sheridan, WY 82801. 2. Purpose of Contract. The purpose of this contract is to obtain preconstruction consultation services from CMAR, which shall entail evaluation of the design, planning, budgeting, scheduling, logistics, cost -estimating and other services set forth herein, to complete the preconstruction phase of Project Enterprise. CMAR's services shall require CMAR to propose to SEEDA a "Guaranteed Maximum Price" (hereafter "GMP"). SEEDA shall have the option to enter into a constriction contract with CMAR to construct Project Enterprise for the GMP. 3. Term of Contract and Required Approvals. This Preconstruction Contract is effective when all parties have executed it and all required approvals have been granted. This Preconstruction Contract shall continue through SEEDA's determination of satisfactory completion of CMAR's responsibilities as described herein. 4. Delivery_System. This Preconstruction Contract is entered in accordance with SEEDA's election to use a Construction Manager at Risk (CMAR) pursuant to Wyo. Stat. § 16-6- 701(a)(vii). 5. Payment,. SEEDA agrees to pay CMAR for the services described herein an amount not exceeding Twenty Six Thousand Dollars ($26,000.00). Final payment will be made upon satisfactory completion of the pre -construction phase as determined by SEEDA. CMAR shall submit to SEEDA monthly invoices requesting payment for services rendered to date and fully describing the services rendered. No payment shall be made for services billed before the date upon which the last required signature is affixed to this contract. In the event of conflict between the language contained in this Contract, and any language contained in any attachment, the language in this Contract shall control. 6. SEEDA_Proiect Supervisor and Architect. A. SEEDA Project Supervisor. SEEDA's Project Manager is Kent Andersen, Sheridan College Facilities Director. B. Architect. The Project Architect is Arete Design Group, LLC.(hereinafter referred to as "Architect"), whose address is 45 East Loucks Street, Suite 301, Sheridan, WY 82801. Contract.for Preconstruction Services Between SEEDA, and Dick Anderson Construction (CMAR) Page I of 9 7. Responsibilities of CINIAR. CMAR shall bean advocate for SEEDA, as determined by this Preconstruction Contract throughout the preconstruction phase. Asanadvocate, CMAR shall perform the following tasks, within the degree of care and skill as exercised by any member of CMAR's profession under similar circumstances, to SEEDA's satisfaction: A. Project Evaluation. CMAR shall provide SEEDA a written evaluation of the SEEDA's Project plans and budget. CMAR shall discuss any comments, concerns or recommendations regarding the Project's plans and budget with SEEDA. B. Scheduling. CMAR shall work closely with SEEDA's Architect and SEEDA Project Manager to develop and finalize a preconstruction and constriction schedule (Schedule), The Schedule will show each of the programming and design phases, identify critical milestone dates and outline decision making for SEEDA. CMAR shall evaluate site constraints, regulatory requirements, material and equipment deliveries, and workforce availability in establishing the Schedule. C. Cost Estimating. CMAR shall continuously provide cost modeling services during the pre -construction phase. CMAR will continuously evaluate the availability of labor, materials/equipment; cost sensitive aspects of the design; and other factors that may have a bearing on the Guaranteed Maximum Price and/or Project Schedule. D. Construction Management Plan. i. Pre mration of a Construction Mani enue�i� i'lan. CMAR, in collaboration with the Architect and the SEEDA's Project Manager, will prepare a Construction Management Plan (Plan) which shall include, but not be limited to, the following; a. Project Milestone Dates b. lnvestigations to be undertaken to ascertain subsurface conditions and physical conditions of existing surface and subsurface facilities and underground utilities e. Alternate strategies for fast -tracking and/or phasing the Construction d. Bidding documents for the procurement of equipment and/or materials e. Separate agreements to be awarded to subcontractors and suppliers L Permitting strategy g. Safety programs h. Construction quality control 1. Commissioning programs j. Value engineering k. Constructability and bidability strategies and procedures ii. Lipr ,ttin he (:ol15Ll'LIOun Management Plan. CMAR will update the Construction Management Plan as needed during the preconstruction phase so that the Plan is ready for implementation in the construction phase. The updates Contract, for Preconstruction Services Between. SEEDA, and Dick Anderson Construction (CMAR) Page 2 of 9 will take into account the following: a. Revisions in the Drawings and Specifications b. CMAR's examination of any additional reports of subsurface conditions, drawings of physical conditions of existing surface and subsurface facilities and documents of physical conditions of underground utilities, whether obtained by the SEEDA or CMAR c. Remaining issues concerning permitting d. Fast -tracking of the construction and the nurnber of separate bidding doctunents to be advertised e. The status of the early procurement of equipment and/or materials, subcontractors/suppliers. E. Design Document Review. CMAR will continuously (as a minimum, weekly) meet with SEEDA, Architect and SEEDA Project Manager to review the design during development of the Project. CMAR shall snake recommendations on construction costs, schedule, feasibility, constructability, bidability, functionality, and practicality of the design(s) to SEEDA; Architect and SEEDA Project Manager with respect to the selection of methods, materials, and systems and recommended cost reducing alternatives. CMAR will advise SEEDA, Architect and SEEDA Project Manager on the site improvements, excavation and foundation considerations and selection of materials, building systems and equipment. CMAR shall advise SEEDA, Architect and SEEDA Project Manager regarding concerns with respect to means and methods, labor and material availability and factors relating to the cost of the Work and coordination of the Drawings and Specifications. F. Cost Model. CMAR shall, based upon a review of the Project plans and budget and any other relevant documentation and/or investigation, develop a Cost Model which will be updated continuously throughout the preconstruction phase until a Guaranteed Maximum Price (GMP) is agreed upon. The Cost Model will be the best representation from CMAR of what the complete functional facility will cost. The Cost Model shall include all cost allowances and/or contingencies for potential additional quantities and/or additional work. G. Guaranteed Maximum Price (GMP) Proposal. The proposed GMP for the Work will be presented in a format acceptable to SEEDA and consistent with the SEEDA's "Request for GMP Proposal", when issued. H. Guaranteed Maximum Price Review and Approval. CMAR shall meet with SEEDA and Architect to review the GMP Proposal and the written statement of its basis. In the event that SEEDA or Architect discovers any inconsistencies or inaccuracies in the information presented, they shall promptly notify CMAR, who shall make appropriate adjustments to the GMP Proposal, its basis or both. Contract for Preconstniction Services Between SEEDA, and Dick Anderson Constncction (CMAR) Page 3 of 9 i. Upon recei ving the GMP Proposal from CMAR, SEEDA may submit the same documents that were used by CMAR in developing the GMP to an independent third party for review and verificative. The third party shall develop an independent cost of the Work estimate and review the Constiuction Schedule for the Project. ii. If CMAR's GMP Proposal is greater than project budget or otherwise not acceptable as originally submitted, SEEDA may require CMAR to reconfirm his Proposal. If CMAR's original GMP or revised GMP is within SEEDA's budget and is found to be otherwise acceptable, SEEDA may accept CMAR's GMP Proposal without comment. W. Phased GMP's. CMAR maybe requested to provide individual GMP Proposals for specific construction phases of this Project. These individual phase GMP Proposals shall be based on the specific phase Construction Documents, and will be prepared in accordance with the procedures identified in this Contract. 8. Responsibilities of SEEDA. SEEDA agrees to: A. Furnish CMAR with all available data and infonnation relative to policies, standards, criteria, studies, etc. B. Contract separately with one or more architects to provide architectural and/or engineering design services for the Project. C. Supply, without charge, all necessary copies of programs, reports, drawings, and specifications in existence required by CMAR. D. Provide CMAR with adequate information regarding SEEDA's requirements for the Project. E. Give prompt written notice to CMAR when SEEDA becomes aware of any default or defect in the Project or non-confonnance with the Drawings and Specifications. F. Authorize the SEEDA Project Manager to approve the Project Budget and schedules, and render decisions and furnish information to CMAR. 9. Special Provisions. A. Award of Construction Contract. SEEDA has sole discretion to undertake construction of Project Enterprise and shall in no way be bound or obligated to enter into a construction phase contract with CMAR or any other entity. Should SEEDA elect to enter into a Construction Contract, selection of a construction manager at risk or general contractor shall be at SEEDA's sole discretion. Contract for Preconstruction Services Between SEEDA, and Dick Anderson Construction (CMAR) Page 4 of 9 B. Award of Related Contracts. SEEDA may undertake or award supplemental or successor contracts for work related to this Preconstruction Contract. CMAR shall cooperate fully with other contractors and SEEDA. 10. Gener"I Provisions A. Amendments. Any changes, modifications, revisions or amendments to this Contract which are mutually agreed upon by the parties to this Contract shall be incorporated by written instrument, executed and signed by all parties to this Contract. B. Applicable Law/Venue. The construction, interpretation and enforcement of this Contract shall be governed by the laws of the State of Wyoming. The Courts of the State of Wyoming shall have jurisdiction over this Contract and the parties, and the venue shall be the Fourth Judicial District, Sheridan County, Wyoming. C. Assignment/Contract Not Used as Collateral. Neither party shall assignor otherwise transfer any of the rights or delegate any of the duties set forth in this Contract without the prior written consent of the other party. CMAR shall not use this Contract, or any portion thereof, for collateral for any financial obligation, without the prior written permission of the College. D. Audit/Access to Records. SEEDA and any of its representatives shall have access to any books, documents, papers, and records of CMAR which are pertinent to this Contract. E. Availability of Funds. Each payment obligation of SEEDA is conditioned upon the availability of government funds which are appropriated or allocated for the payment of this obligation. If funds are not allocated and available for the continuance of the services performed by CMAR, the contract may be terminated by SEEDA at the end of the period for which the funds are available. SEEDA shall notify CMAR at the earliest possible time of the services which will or may be affected by a shortage of funds. No penalty shall accrue to SEEDA in the event this provision is exercised, and SEEDA shall not be obligated or liable for any future payments due or for any damages as a result of termination under this section. This provision shall not be construed to permit SEEDA to terminate this Contract to acquire similar services from another party. F. Certificate of Good Standing. Contractor shall provide a Certificate of Good Standing verifying compliance with the unemployment insurance and workers, compensation programs prior to performing work under this Contract. G. Compliance with Laws. CMAR shall keep informed of and comply with all applicable federal, state and local laws and regulations in the performance of this Contract. ContractforPreconstruction Services Between SEEDA, and Dick Anderson Construction (CMAR) Page 5 of 9 H. Entirety of Contract. 1. Contract Documents. This Preconstruction Contract shall consist of this document, consisting of nine (9) pages. CMAR warrants that it has carefully examined and understands all of the Contract Documents listed above. ii. Totalily of Documentati n. This Preconstruction Contract represents the entire and integrated Preconstruction Contract between the parties and supersedes all prior negotiations, representations, and agreements, whether written or oral, I. Force Majeure. Neither party shall be liable for failure to perform under this Contract if such failure to perform arises out of causes beyond the control and without the fault or negligence of the nonperforming party. Such causes may include, but are not limited to, acts of God or the public enemy, fires, floods, epidemics, quarantine restrictions, freight embargoes, and unusually severe weather. This provision shall become effective only if the party failing to perform immediately notifies the other party of the extent and nature of the problem, limits delay in performance to that required by the event, and takes all reasonable steps to minimize delays. This provision shall not be effective unless the failure to perform is beyond the control and without the fault or negligence of the nonperforming party. , J. Indemnification. CMAR shall indemnify, defend and hold harmless SEEDA, and their officers, agents, employees, successors and assignees from any and all claims, lawsuits, losses and liability arising out of Contractor's failure to perform any of Contractor's duties and obligations hereunder or in connection with the negligent performance of CMAR's duties or obligations, including but not limited to any claims, lawsuits, losses or liability arising out of CMAR's malpractice. K. Independent Contractor. CMAR shall fiinction as an independent contractor for the purposes of this Contract, and shall not be considered an employee of SEEDA for any purpose. CMAR shall assume sole responsibility for any debts or liabilities that may be incurred by CMAR in fulfilling the terms of this Contract, and shall be solely responsible for the payment of all federal, state and local taxes which may accrue because of this Contract. Nothing in this Contract shall be interpreted as authorizing CMAR or its agents and/or employees to act as an agent or representative for or on behalf of SEEDA, or to incur any obligation of any kind on the behalf of SEEDA. CMAR agrees that no health/hospitalization benefits, workers' compensation and/or similar benefits available to SEEDA employees will inure to the benefit of CMAR or CMAR's agents and/or employees as a result of this Contract. Contract for Preconstruction Services Between SEEDA, and Dick Anderson Construction (CMAR) Page 6 of 9 L. Notices. All notices arising out of, or from, the provisions of this Contract shall be in writing and given to the parties at the address provided under this Contract, either by regular mail, facsimile, e-mail, or delivery in person. M. Notice and Approval of Proposed Sale or Transfer of CMAR. CMAR shall provide SEEDA with the earliest possible advance notice of any proposed sale or transfer or any proposed merger or consolidation of the assets of CMAR. Such notice shall be provided in accordance with the notice provision of this Contract. N. Ownership of Documents/Work Product. All documents, reports, records, field notes, materials, and data of any kind resulting from performance ofthis Contract are at all times the property of SEEDA. O. Patent or Copyright Protection. CMAR recognizes that certain proprietary matters or techniques maybe subject to patent, trademark, copyright, license or other similar restrictions, and warrants that no work performed by CMAR or its subcontractors will violate any such restriction. CMAR shall defend and indemnify SEEDA for any violation or alleged violation of such patent, trademark, copyright, license or other restrictions. P. 1'ut)licity. Any publicity given to the program or services provided herein, including, but not limited to, notices, information, pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for CMAR, shall identify SEEDA as the sponsoring agency and shall not be released without prior written approval from SEEDA. Q. Severability. Should any portion of this Contract be judicially determined to be illegal or unenforceable, the remainder of the Contract shall continue in full force and effect, and either party may renegotiate the terms affected by the severance. R. Sovereign Immunity. SEEDA does not waive sovereign immunity by entering into this Contract and specifically retain all iimnunities and defenses available to them as sovereigns pursuant to Wyo. Stat. § 1-39-104(a) and all other state law. Designations of venue, choice of law, enforcement actions, and similar provisions should not be construed as a waiver of sovereign immunity. S. Taxes. CMAR shall pay all taxes and other such amounts required by federal, state and local law, including but not limited to federal and social security taxes, workers' compensation, unemployment insurance and sales taxes. T. Termination of Contract. This Contract may be terminated, without cause, by SEEDA upon sixty (60) days written notice. This Contract may be tenninated immediately for cause if CMAR fails to perform in accordance with the terms of this Contract.forPreconstruction Services Between SEEDA, and DiclrAnderson Conslraiction (CMAR) Page 7 of 9 Contract. U. Third Party Beneficiary Rights. The parties do not intend to create in any other individual or entity the -status of third party beneficiary, and this Contract shall not be construed so as to create such status. The rights, duties and obligations contained in this Contract shall operate only between the parties to this Contract, and shall inure solely to the benefit of the parties to this Contract. The provisions of this Contract are intended only to assist the parties in determining and performing their obligations under this Contract. V. Titles Not Controlling. Titles of paragraphs are for reference only, and shall not be used to construe the language in this Contract. j W. Waiver. The waiver of any breach of any term or condition in this Contract shall not ` be deemed a waiver of any prior or subsequent breach. Failure to object to a breach i shall not constitute a waiver. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK Contract for Preconstruction Services Between SEEDA, and Dick Anderson Construction (CMAR) Page 8 of 9 11. Sianatures, In witness thereof, the parties to this Contract, either personally or through their duty authorized representatives, have executed this Contract on the days and dates set out below, and certify that they have read, understood, and agreed to the terms and conditions of this Contract. The effective date of this Contract is the date of the signature last affixed to this page. CONTRACT MANAGER AT RISK 01-04-18 Brian Bolton, Vice President Date SHERIDAN ECONOMIC & EDUATION DEVELOPMENT AUTHORITY I,. � a- 1/. Dr. lyaul Young, Pre��t Date Contract for Preeonstniction Services Between SEEDA, and Dick Anderson Construction (CMAR) Page 9 of 9