2021-02-23_PERMIT FILE - M2021014 (3)

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VVI,UOKYI I rTI IVCIUFIC ILJ..7VOLJ I UOr-IJLOCWL I V-MJUV-Uoor/WovCHI. 3.2 AVAILABLE FUNDS 3.2.1 The Parties expressly recognize and agree that this Agreement is subject to and contingent upon the continuing availability of federal and state funds for the purposes hereof. If the State does not receive such funds or any part thereof, the State's performance hereunder is contingent upon the continuing availability of such funds and the State may immediately terminate this Agreement without liability, including liability for termination costs. In the event of termination, the Contractor is entitled to payment, in accordance with this Agreement, for Work completed on the Project as of the date of the termination. 3.2.2 The Contractor acknowledges that the State is limited in the funds available to design and construct the Project. Should funding of a lesser amount be made available for the Project, it is the obligation of the Principal Representative to revise the Project scope consistent with the ultimate appropriation. 3.2.3 Payments pursuant to this Agreement shall be made only from available funds encumbered for this Agreement and the State's liability for such payments shall be limited to the amount remaining of such encumbered funds. 3.3 BUDGETING AND FIXED LIMIT OF CONSTRUCTION COST 3.3.1 The Contractor shall assist the Design Consultant in evaluating the Principal Representative's preliminary budget. Based on consultation with the Design Consultant and the Contractor, the Principal Representative shall furnish a Fixed Limit of Construction Cost to the Contractor which shall set forth a dollar amount available for the total OPCC(s) of the Project and include contingencies for bidding and construction, shared risk contingency pools, force account items, and the CM/GC Management Price Percentage. 3.3.2 The Fixed Limit of Construction Cost may be revised only by approved Amendments. 3.4 COST ESTIMATING AND PROJECT MANAGEMENT SOFTWARE Cost estimating shall be conducted by three entities during the Preconstruction Phase of the Project. The Principal Representative and Contractor shall maintain their own OPCCs through the Preconstruction Phase. The Principal Representative will provide an Independent Cost Estimator or ICE that will develop an Independent Cost Estimate. At each agreed upon Milestone and after any LLTP CAP, or any Construction CAP proposals are submitted by the Contractor, the Principal Representative's Engineer's Estimate, and the Contractor's OPCC will be compared to the Independent Cost Estimate provided by the ICE. If the Owner's Estimate, or Independent Cost Estimate in lieu of the Owner's estimate, and Contractor's CAP are not within a percentage acceptable by the Principal Representative for any LLTP CAP, or any Construction CAP proposal (as applicable), the Principal Representative will conduct a review to determine where the cost estimates differ and what assumptions or details were used to determine each difference. For any LLTP CAP or Construction CAP to be accepted by the Principal Representative, the Owner's Estimate and the Contractor's CAP must be within a percentage acceptable to the Principal Representative, which shall be demonstrated by the Principal Representative's issuance of a "CAP Acceptance Letter" to Contractor. 3.4.1 The Contractor shall maintain an open and accurate Cost Model that shall include all details of the OPCC and any LLTP CAP or any Construction CAP proposal when submitted. These details include, but are not limited to labor, materials, equipment, Subcontractor and Supplier quotes, assumptions, risk, direct, mobilization, as listed in the Contractor's Proposal. Page 13 of 75