RFP 22-752-025 Revised Appendix E - Master Agreement for Program Management Services- EX - September 9, 2024 - DCSD Board Meeting Archive

MASTER AGREEMENT FOR PROGRAM

MANAGEMENT SERVICES

BETWEEN

THE DEKALB COUNTY BOARD OF EDUCATION

AND

Project Name: ACERM Program Management, A Joint
Venture (the ACERM Team)

Project #: RFP: 22-752-025

Cost Code: 423.75.95.00.605423.752.0000 (SPLOST V)
TBD (SPLOST VI)

Dated:_September 20, 2022___
TABLE OFCONTENTS

ARTICLE 1 DEFINITIONS ..................................................................................................................... 1

ARTICLE 2 REPRESENTATIONS ......................................................................................................... 4
2.1 Specific Representations ...................................................................................... 4
2.2 Enumerated Representations Not Exhaustive ..................................................... 4

ARTICLE 3 PROGRAM MANAGER’S PERFORMANCE: GENERAL PROVISIONS ........................... 4
3.1 Standard Of Care ................................................................................................. 4
3.2 Owner’s Agent ...................................................................................................... 4
3.3 Time Of The Essence ........................................................................................... 5
3.4 Compliance With Applicable Laws ....................................................................... 5
3.5 Duty To Correct Defective Services ..................................................................... 5
3.6 Program Manager’s Performance Not Discharged By Duties Of Others ............. 5
3.7 Cooperation With Project Participants; Relationship of Parties. .......................... 5
3.8 Program Manager Not To Perform Design Or Construction ................................ 6

ARTICLE 4 PROGRAM MANAGER’S BASIC SERVICES .................................................................... 6
4.1 Generally .............................................................................................................. 6
4.2 Consultation With Owner ...................................................................................... 6
4.3 Review Applicable Laws ....................................................................................... 6
4.4 Owner’s Execution Plan ....................................................................................... 6
4.5 Monthly Reports ................................................................................................... 6
4.6 Attendance At Meetings ....................................................................................... 7
4.7 Program Schedule ................................................................................................ 7
4.8 Budget and Cash Flow Analysis .......................................................................... 8
4.9 Communications And Reporting........................................................................... 8
4.10 Document Control ................................................................................................ 8
4.11 Maintenance Of Construction Contract Documents ............................................. 8
4.12 Project Reviews With Project Architect. ............................................................... 8
4.13 Verify Project Architect’s Insurance ..................................................................... 8
4.14 Twice Monthly Meetings With Project Architect. .................................................. 8
4.15 Review Cost-Saving Recommendations With Owner .......................................... 9
4.16 Review Of Geotechnical Reports ......................................................................... 9
4.17 Review And Certification Of Project Architect’s Pay Requests ............................ 9
4.18 Review Of Preliminary Design.............................................................................. 9
4.19 Review of Design For Construction ...................................................................... 9
4.20 Design Reviews……………………………………………………………………….10
4.21 Services During Bidding ..................................................................................... 10
4.22 Reducing Bid Or Proposal Amounts .................................................................. 11
4.23 Notice To Proceed .............................................................................................. 11
4.24 Conduct Preconstruction Conference. ............................................................... 11
4.25 Procurement Of Special Services ...................................................................... 12
4.26 Perform Owner’s Obligations Under Construction Contract. ............................. 12
4.27 Permits And Licenses ......................................................................................... 12
4.28 Contractor’s Bonds And Insurance Requirements ............................................. 12
4.29 Review Of Construction Schedule. .................................................................... 12
4.30 Construction Schedule Updates ......................................................................... 12

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4.31 Review Contractor’s Schedules Of Values ........................................................ 12
4.32 Project Administration ........................................................................................ 12
4.33 Contract Administration By Project Architect. .................................................... 12
4.34 Safety; Violations ................................................................................................ 12
4.35 Job Site Meetings ............................................................................................... 13
4.36 Review Of RFI’s ................................................................................................. 13
4.37 Review Of Contractor’s Pay Requests ............................................................... 13
4.38 Change Order Review ........................................................................................ 13
4.39 Project Manager’s Daily Log .............................................................................. 13
4.40 Testing And Startup ............................................................................................ 14
4.41 As-Built Drawings ............................................................................................... 14
4.42 Owner Training ................................................................................................... 14
4.43 Punchlist And Defective Work; Certificates of Completion ................................ 14
4.44 Transfer Of Project To Owner ............................................................................ 14
4.45 Claims Assistance .............................................................................................. 14
4.46 Warranty Work ................................................................................................... 15
4.47 Final Payment And Accounting ...…………………………………………………. 15
4.48 Project Architect Or Contract Default ……………………………………………...15
4.49 Submission Of Documents to Reviewing Agencies ...……………………………15

ARTICLE 5 ADDITIONAL SERVICES ................................................................................................. 15
5.1 Generally ............................................................................................................ 15
5.2 Changes In The Program ................................................................................... 16
5.3 Owner’s Insurance ............................................................................................. 16
5.4 Owner Requested Services................................................................................ 16

ARTICLE 6 OWNER’S OBLIGATIONS OTHER THAN PAYMENT ..................................................... 16
6.1 Provide Program And Project Information .......................................................... 16
6.2 Owner’s Representative ..................................................................................... 16
6.3 Review Of Documents ........................................................................................ 16
6.4 Access To The Site And The Work .................................................................... 16
6.5 Cooperation To Secure Permits ......................................................................... 16
6.6 Timely Performance ........................................................................................... 16
6.7 Owner’s Reviews, Inspections, Approvals, And Payments ................................ 16
6.8 Non-Waiver......................................................................................................... 17
6.9 Program Manager’s Notice Of Nonperformance ................................................ 17
6.10 Office Space ………………………………………………………………...………..17

ARTICLE 7 PAYMENTS TO PROGRAM MANAGER ......................................................................... 17
7.1 Basis Of Compensation ...................................................................................... 17
7.2 Additional Services ............................................................................................. 17
7.3 Reimbursable Expenses .................................................................................... 18
7.4 Taxes and Fees .................................................................................................. 18
7.5 Program Manager’s Pay Request…………………………………………………..18
7.6 Releases Of Claims ............................................................................................ 18
7.7 Certification Relating To Pay Requests ............................................................. 18
7.8 Payment Of Pay Requests ................................................................................. 18
7.9 Withholding Of Payment ..................................................................................... 19
7.10 Disputed Pay Request ........................................................................................ 19
7.11 Conditions Precedent To Payment .................................................................... 19

ARTICLE 8 CHANGE ORDERS .......................................................................................................... 20
8.1 Owner’s Authority To Order Changes ................................................................ 20
8.2 Adjustments To Compensation By Change Order Only .................................... 20
8.3 Increases To Program Manager’s Compensation ............................................. 20
8.4 Reductions In Program Manager’s Compensation ............................................ 20
8.5 Payment ............................................................................................................. 20
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8.6 Change Orders Final .......................................................................................... 20

ARTICLE 9 PERSONNEL, SUBCONTRACTORS AND CONSULTANTS .......................................... 21
9.1 Generally………………………………………………………………………………21
9.1.1 Background Checks…………………………………………………………………22
9.2 Approval Of Program Manager’s Subcontractors Required/
Required Subcontract Terms ............................................................................. 22
9.3 Program Manager Responsible For Acts of Subcontractors .............................. 22
9.4 Program Manager’s Personnel........................................................................... 22
9.5 Removal Of Personnel And Subcontractors ...................................................... 23
9.6 Employment Taxes ............................................................................................. 23

ARTICLE 10 PROGRAM AND PROJECT DOCUMENTS ..................................................................... 22
10.1 Use And Ownership ........................................................................................... 22
10.2 Availability Of Program And Project Records To Owner .................................... 22
10.3 Maintenance Of Program And Project Records ................................................. 22

ARTICLE 11 INDEMNITY ...................................................................................................................... 23

ARTICLE 12 INSURANCE ..................................................................................................................... 23
12.1 Coverage Required ............................................................................................ 23
12.2 Owner As Additional Insured .............................................................................. 23
12.3 Certificates Of Insurance/Cancellation Notice .................................................... 23
12.4 Subcontractor/Consultant Coverage .................................................................. 24
12.5 No Limitation On Program Manager’s Liability ................................................... 24

ARTICLE 13 SUSPENSION ................................................................................................................... 24
13.1 Owner’s Right To Suspend ................................................................................ 24
13.2 Ceasing Performance Upon Suspension ........................................................... 24
13.3 Resumption Of Work After Suspension ............................................................. 24
13.4 Claim For Costs Of Suspension ......................................................................... 24

ARTICLE 14 TERMINATION ................................................................................................................. 25
14.1 Termination For Convenience ............................................................................ 25
14.2 Ceasing Performance Upon Termination ........................................................... 25
14.3 Compensation For Termination For Convenience ............................................. 25
14.4 Termination For Cause ....................................................................................... 25
14.5 Erroneous Termination For Cause ..................................................................... 25
14.6 Completion By Owner And Survival Of Obligations ........................................... 25
14.7 Termination By Program Manager ..................................................................... 26

ARTICLE 15 MISCELLANEOUS PROVISIONS .................................................................................... 26
15.1 Publicity By Program Manager ......................................................................... 26
15.2 Notices .............................................................................................................. 26
15.3 Successors And Assigns .................................................................................. 26
15.4 No Third Party Beneficiaries ............................................................................. 26
15.5 Severability ....................................................................................................... 26
15.6 Headings ........................................................................................................... 26
15.7 Exhibits ............................................................................................................. 26
15.8 “Including” ......................................................................................................... 27
15.9 Governing Law; Jurisdiction And Venue ........................................................... 27
15.10 Entire Agreement/Amendments In Writing ....................................................... 27
15.11 Hazardous Materials......................................................................................... 27
15.12 Delays Beyond Reasonable Control ................................................................ 27

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SCHEDULE OF EXHIBITS

EXHIBIT “A” SCHEDULE OF HOURLY RATES
EXHIBIT “B” PARTIAL WAIVER AND RELEASE OF CLAIM RIGHTS
EXHIBIT “C” FINAL WAIVER AND RELEASE OF CLAIM RIGHTS
EXHIBIT “D” CONTRACTOR AFFIDAVIT
EXHIBIT “E” SUBCONTRACTOR AFFIDAVIT
EXHIBIT “F” LIST OF PROPOSED DOCUMENTS FOR THE PROJECT
EXHIBIT “G” OWNER’S CRITERIA AND NARRATIVE SCOPE OF WORK
EXHIBIT “H” CONTRACTOR’S SUBMITTAL
EXHIBIT “I” JOINT VENTURE AGREEMENT

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MASTER AGREEMENT FOR PROGRAM MANAGEMENT SERVICES

This MASTER AGREEMENT FOR PROGRAM MANAGEMENT SERVICES (the
"Agreement") is made and entered into by and between: The DeKalb County Board of Education
(the "Owner"), and ACERM Program Management, A Joint Venture (the ACERM Team),
comprised of two entities: AECOM Technical Services, Inc. (AECOM) and Corporate
Environmental Risk Management (CERM) (the "Program Manager").

This Agreement shall commence as of the Effective Date and shall continue until
September 30, 2027, unless earlier terminated as provided herein.

For and in consideration of the mutual promises, covenants and agreements set forth
herein, and for other good and valuable consideration, the sufficiency of which is hereby
acknowledged, Owner and Program Manager agree as follows:

ARTICLE 1

DEFINITIONS

1.1 “Additional Services” means those services, duties, obligations and responsibilities
set forth in Article 5 of this Agreement.

1.2 "Applicable Laws" means all laws, statutes, ordinances, codes, regulations, rules,
orders and resolutions of all national, administrative, state, local, municipal, and other governing
bodies, relating to or affecting a Project including, without limitation, all environmental, health,
safety, building, and employment laws.

1.3 “Basic Services” means all Services required of Program Manager by this
Agreement, excepting only Additional Services.

1.4 "Change Order" means a written order to Program Manager executed by Owner
in accordance with Article 8 of this Agreement authorizing and directing an addition to, deletion
from, adjustment, revision, or a combination thereof, to the Services required of, or the
compensation payable to, Program Manager.

1.5 "Construction Contract": (a) in respect of a Project that is not a Design/Build
Project, a contract between Owner and a Contractor for the performance of all or any portion of
the Work for a Project, including all documents defined by such contract as “Contract Documents”,
all documents incorporated into such contract by reference, and all additional documents, if any,
defined by such contract as constituting a part thereof; and (b) in respect of a Design/Build Project,
“Construction Contract” means the Design/Build Contract.

1.6 "Construction Phase": (a) in respect of a Project that is not a Design/Build Project,
“Construction Phase” means the phase of a Project commencing upon the completion of the
Design Phase, or any particular phase thereof if Owner has approved staging of the design in
phases, or the award of the first Construction Contract for such Project, whichever occurs first,
and ending upon Owner's execution of a Certificate of Final Completion for such Project; (b) in
respect of a Design/Build Project, “Construction Phase” means the phase of a Project
commencing upon the completion of the Design Phase, or any particular phase thereof if Owner
has approved staging of the design in phases, and ending upon Owner’s execution of a Certificate
of Final Completion for such Project.
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1.7 "Contractor": (a) in respect of a Project that is not a Design/Build Project,
“Contractor” means a person or entity, including, without limitation, general contractors, trade or
specialty contractors, and construction managers, with whom Owner contracts for performance
of all or part of the Work for a Project; (b) in respect of a Design/Build Project, “Contractor” means
the Design/Builder.

1.8 “Design/Build Contract” means a contract between Owner and a Design/Builder
for design of a Project and performance of related architectural, engineering and other customary
and related services and for the performance of all or any portion of the Work for a Project,
including all documents defined by such contract as “Contract Documents”, all documents
incorporated into such contract by reference, and all additional documents, if any, defined by such
contract as constituting a part thereof.

1.9 “Design/Build Project” means a Project for which the design/build construction
delivery method is utilized.

1.10 “Design/Builder” means a person or entity with whom Owner contracts for design
of a Project and performance of related services and for performance of all or part of the Work for
a Project.

1.11 “Design Contract”: (a) in respect of a Project that is not a Design/Build Project,
“Design Contract” means a contract between Owner and a Project Architect for design of a Project
and performance of related architectural, engineering and other customary and related services,
and includes all documents incorporated into such contract by reference and all documents
defined by such contract as constituting a part thereof; (b) in respect of a Design/Build Project,
“Design Contract” means the Design/Build Contract.

1.12 “Design For Construction“ means the complete and final design and construction
documents, including, without limitation, plans, drawings, specifications, manuals, related
materials, and all addenda, changes, and modifications thereto, prepared or provided by a Project
Architect pursuant to a Design Contract for use in constructing a Project, or any particular phase
thereof if Owner has approved staging of the design in phases, performing the Work for such
Project, or such phase if applicable, and rendering such Project, or such phase if applicable, fully
operational and usable for its intended purpose.

1.13 "Design Phase" means the phase of a Project commencing with the execution of
a Design Contract for such Project, or Owner’s authorization to the Project Architect to commence
design services for such Project, whichever occurs first, and ending upon completion of the
Design for Construction for such Project, or any particular phase thereof if Owner has approved
staging of the design in phases.

1.14 “Effective Date” means October 1, 2022.

1.15 “Execution Plan” means the manual of processes and procedures adopted and
utilized by Owner to monitor Projects.

1.16 "Final Completion" means the completion of all Work required by, and in strict
compliance with, the Construction Contract for a Project, including start-up, testing, permitting,
and all preparations necessary to open and operate such Project for its intended purpose.

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1.17 “Life Cycle Cost“ means the sum of all costs of a Project over its useful life, and
includes the cost of design, construction, acquisition, operation, maintenance, and salvage/resale
value.

1.18 "Owner's Representative" means the individual named by Owner, in writing, to act
on Owner's behalf in the administration of this Agreement. The initial Owner’s Representative
shall be Owner’s Executive Directly of Facility Management.

1.19 "Preliminary Design" means all design documents constituting the preliminary
design of a Project as required by and defined in the Design Contract for such Project.

1.20 “Program” means the program for the design, construction and repair work as to
existing and new schools in the Owner’s school system, as set forth more particularly in the
Owner’s Capital Improvement Plan (“CIP”) which is attached hereto as Exhibit “D” and which is
incorporated herein by referenced; provided, however, that the Program and CIP are subject to
modification by addition, deletion, elimination or other revision, at the sole and absolute discretion
of Owner’s Board of Education.

1.21 "Project" means a school or other facility design and construction or renovation or
addition undertaking.

1.22 “Project Architect “: (a) in respect of a Project that is not a Design/Build Project,
“Project Architect” means a person or entity with whom the Owner contracts for design of a Project
and performance of related services; (b) in respect of a Design/Build Project, “Project Architect”
means the Design/Builder.

1.23 “Reimbursable Expenses” means, and shall be limited to, those items set forth
herein or in Exhibit ”A”, attached hereto.

1.24 "Services" means all the services, duties, obligations and responsibilities required
of Program Manager pursuant to the terms of this Agreement.

1.25 "Subcontractor" means any person or entity hired by Program Manager to perform
any portion of the Services.

1.26 "Substantial Completion": (a) in respect of a Project that is not a Design/Build
Project, “Substantial Completion” means that point at which, as certified in writing by the Project
Architect, a Project is at a level of completion in strict compliance with the Construction Contract
such that the Owner can enjoy beneficial use or occupancy, and can use or operate it in all
respects, for its intended purpose; and (b) in respect of a Design/Build Project, “Substantial
Completion” means that point at which, as certified in writing by the Program Manager, a Project
is at a level of completion in strict compliance with the Construction Contract such that the Owner
can enjoy beneficial use or occupancy, and can use or operate it in all respects, for its intended
purpose.

1.27 “Value Engineering “means the detailed analysis of systems, equipment,
materials, services, facilities, and supplies required by a Construction Contract for the purpose of
achieving the desired and essential functions of Owner’s Project at the lowest Life Cycle Cost
consistent with required and necessary performance, reliability, quality and safety.

1.28 "Work" means any and all labor, supervision, work, supplies, fixtures, furnishings,
vehicles, equipment, services, tools, materials, computers, utilities, items, documents and things
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required by a Construction Contract to construct, test, certify, permit and render a Project, and
every component thereof, operational and usable for its intended purpose.

ARTICLE 2

REPRESENTATIONS

2.1 Specific Representations. By executing this Agreement and undertaking to
perform the Services, Program Manager makes the following express representations and
warranties to Owner upon which Owner may fully rely:

2.1.1 Program Manager is professionally qualified to act as the program manager
for the Program and the Projects and has, and shall maintain, any and all licenses, permits,
and other authorizations necessary to act as Program Manager for the Program and
Projects and to perform the Services required hereunder.

2.1.2 Program Manager has become familiar with the local conditions under
which the Program and the Projects are to be implemented and undertaken.

2.1.3 Program Manager has the skill, capability, and experience, including
sufficient qualified and competent personnel, to effectively, efficiently, and timely perform
the Services and manage the Program. Program Manager will continuously furnish
sufficient personnel to progress the Program and perform the Services in a timely and
proper manner.

2.1.4 Program Manager shall comply with all Applicable Laws governing the
performance of the Services.

2.1.5 Program Manager assumes full responsibility to Owner for the acts and
omissions of its officers, employees, agents, Subcontractors, consultants, and others
employed or retained by it in connection with the Project and performance of the Services.

2.2 Enumerated Representations Not Exhaustive. Nothing contained in this Article 2
shall in any manner supersede, limit, or restrict any other duty, responsibility, representation, or
warranty created by this Agreement or by law.

ARTICLE 3

PROGRAM MANAGER'S PERFORMANCE: GENERAL PROVISIONS

3.1 Standard Of Care. Program Manager shall perform all Services at a level, and to
a standard of care, consistent with the standards and quality prevailing among first-class,
nationally recognized program, project and construction management firms of superior
knowledge, skill and experience engaged in programs and projects of similar size and complexity
to the Program. Program Manager shall carry out and complete all Services in an efficient,
thorough, timely and economical manner, and in strict accordance with the terms of this
Agreement.

3.2 Owner's Agent. Program Manager shall be Owner’s agent in performing the
Services, shall promote and protect Owner’s interests, and shall have a fiduciary obligation of
undivided loyalty and trust to Owner in connection therewith, and by executing this Agreement
expressly accepts the relationship of trust and confidence placed in Program Manager by Owner.
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Unless otherwise directed by Owner in writing, the Program Manager shall act as Owner's agent
to each Project Architect and Contractor. In performing services under this Agreement, the
Program Manager is an independent contractor to the Owner and is not an employee of or joint
venture with the Owner.

3.3 Time Of The Essence. Program Manager acknowledges that time is of the
essence to the Program and each Project and in the performance of Program Manager’s
Services. Program Manager shall perform and complete the Services in a timely manner in
accordance with the Program Schedule.

3.4 Compliance With Applicable Laws. Without assuming the responsibility of the
Project Architect for the accuracy, adequacy and completeness of design, and without assuming
the responsibility of the Contractor for the performance of any construction work, Program
Manager shall reasonably ensure that each Project is designed and constructed in a manner to
meet the requirements of all Applicable Laws. Program Manager shall immediately report to
Owner in writing any known actual or potential violation of any Applicable Law by any person or
entity, including, without limitation, the Project Architect and/or the Contractor.

3.5 Duty To Correct Defective Services. Program Manager shall promptly correct any
errors, omissions, and deficiencies in its performance of the Services, at its own cost and without
additional compensation or reimbursement, and Program Manager shall not be compensated for
performing any Services necessitated by its failure to perform in accordance with this Agreement.

3.6 Program Manager’s Performance Not Discharged By Duties Of Others. Program
Manager’s Services under this Agreement shall not be changed, altered, discharged, released or
satisfied by any duty, obligation or responsibility of a Project Architect or a Contractor. Program
Manager is not a third-party beneficiary of any agreement by and between Owner and any Project
Architect or Contractor. It is expressly acknowledged and agreed that Program Manager’s
Services to Owner are independent of, and are not diminished by, any duties owed to Owner by
any Project Architect or Contractor.

3.7 Cooperation With Project Participants; Relationship Of Parties. Program Manager
shall cooperate fully with each Project Architect with respect to the duties, obligations,
responsibilities and services of such Project Architect, including those set forth in any applicable
Design Contract, with each Contractor with respect to the duties, obligations, responsibilities and
services of such Contractor. Such duty of cooperation includes, as the Program’s or any Project’s
needs may require, furnishing information and documents to, meeting with, and consulting with,
the Project Architect and/or Contractor with respect to inspection, testing and analysis of any
Work. In providing the Services hereunder, Program Manager shall endeavor to maintain a
working relationship with each Project Architect and each Contractor on behalf of Owner.
However, nothing in this Agreement shall be construed to mean or imply that Program Manager
assumes any of the responsibilities or duties of each Project Architect or Contractor. Each Project
Architect shall be solely and exclusively responsible for the design of the aspects of each of the
Projects for which it is retained. Each Project Architect shall design and inspect the Projects in
accordance with the respective Design Contract between each Project Architect and Owner
relating to the Projects. Each Contractor shall be solely and exclusively responsible for the
construction of the aspects of the Projects for which each Contractor shall be retained, including
all means, methods, techniques, sequences and procedures used in construction of the Projects
and for the safety of personnel and property at the site of the Projects during such construction,
and shall construct the Projects in accordance with the respective Construction Contract between
each Contractor and Owner relating to the Projects.

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3.8 Program Manager Not To Perform Design Or Construction. Unless expressly
authorized in writing by Owner’s Representative, neither Program Manager nor any subsidiary,
affiliate or joint venture partner of Program Manager shall perform, or enter into any agreement
to perform, any design or construction work in connection with the Program, any Project or any
other design, construction, consulting or other project undertaken by Owner outside of the
Program.

ARTICLE 4

PROGRAM MANAGER’S BASIC SERVICES

4.1 Generally. At all times during the term hereof, Program Manager shall perform the
Basic Services set forth in, or reasonably implied by or inferable from, this Article 4. Program
Manager agrees to furnish efficient business administration and management services in
connection with the performance of all Services.

4.2 Consultation With Owner. Program Manager shall consult in detail with Owner in
order to:

(a) Review Owner’s existing facilities as applicable to the scope of the Program;

(b) Learn Owner’s needs and objectives;

(d) Review Owner’s educational specifications.

4.3 Review Applicable Laws. Program Manager shall review all Applicable Laws and
notify Owner’s Representative in writing of any areas that may be of concern or difficulty in
compliance.

4.4 Owner’s Execution Plan. Program Manager shall review and comply with Owner’s
Execution Plan.

4.5 Monthly Reports. Program Manager shall prepare and submit to Owner’s
Representative on the tenth day of each month a written report summarizing the progress of the
Program and each Project during the preceding month (the “Monthly Report“). The Monthly
Report shall set forth, in detail reasonably satisfactory to Owner, significant facts and events
occurring during the preceding month, such that Owner will be fully informed of the progress of
the Program and each Project. The Monthly Report shall describe any problems or obstacles that
may adversely affect the budget or schedule of the Program or any Project or the quality of design
and construction work being performed. The Monthly Report shall include, without limitation, the
following:

(a) An update for each Project schedule, which shall identify any delays to each
Project, as well as the cause and extent of such delays, and shall make
recommendations for eliminating or minimizing such delays and the effects thereof;

(b) Updates of the budget and cash flow analysis for the Program and each Project,
subdivided into design and construction phases, showing costs incurred in the

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preceding month as well as month-by-month projection and forecast of future
anticipated costs and payments by Owner;

(c) A summary of all change orders approved for each Project during the preceding
month, which summary shall indicate the cost and cause of each such change
order, and shall give the cumulative total costs of all change orders approved to
date for each Project, expressed in gross dollars and as a percentage of the
Construction Contract price;

(d) A summary of all requests or claims for additional compensation or time extensions
received from any Project Architect or Contractor.

Concurrent with submission of the Monthly Report, the Program Manager shall submit an
executive summary thereof to Owner’s Chief Operating Officer. The executive summary shall
note any significant impediments and delays to any Project, as well as all claims for additional
compensation or time made by any Project Architect or Contractor. Within five (5) days after
submission of the Monthly Report, the Program Manager shall meet with Owner’s Representative
to review the Monthly Report and address any issues or concerns related to the Program or any
Project.

4.6 Attendance At Meetings. Program Manager shall attend such meetings as
Owner’s Representative requests and shall attend any and all other meetings as necessary to
protect the interests of the Program, each Project and the Owner. In addition to all meetings
Program Manager is otherwise required to attend pursuant to this Agreement, Program Manager
shall schedule and attend meetings with each Project Architect, Contractor and others that
Program Manager, in the exercise of its professional judgment, deems necessary or in the
interests of each Project or Owner. Program Manager shall give Owner not less than twenty-four
(24) hours prior written notice of any meeting scheduled by Program Manager. Owner shall give
Program Manager not less than twenty-four (24) hours prior notice of any meeting scheduled by
Owner. At every meeting Program Manager is required to attend, Program Manager shall be
represented at such meeting by, at a minimum, Program Manager’s representative for each
subject being discussed at such meeting.

4.6.1 Preparation And Distribution of Meeting Minutes. At every meeting
Program Manager attend, Program Manager shall keep written minutes of the meeting
and distribute typed copies of same to Owner and all in attendance at such meeting, as
well as anyone else Program Manager believes, in the exercise of its professional
judgment, should review such minutes.

4.7 Program Schedule. Program Manager shall prepare and submit to Owner’s
Representative within thirty (30) days of receipt of the date hereof, a schedule for the Program in
such form as Owner may require (the “Program Schedule“). The Program Schedule shall
establish and show milestones, including start and finish dates, for critical phases and events for
the overall Program and for the design and construction of each Project. Program Manager shall
continually update the Program Schedule throughout the duration of the Program, including
updating the Program Schedule as updates are made to each Project schedule

4.7.1 Notice Of Delays To Program and Project Schedules. Program Manager
shall, in writing, immediately notify Owner’s Representative of delays or anticipated
potential delays to the Program Schedule or any Project schedule and make
recommendations for eliminating or minimizing such delays and the effects thereof.

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4.8 Budget And Cash Flow Analysis. Program Manager shall prepare and submit to
Owner’s Representative, on at least a quarterly basis, a budget and anticipated cash flow analysis
for the Program and each Project, subdivided into design and construction phases for each
Project. Site acquisition costs shall be shown separately. Program Manager shall continually
update such analysis throughout the duration of the Program.

4.9 Communications And Reporting. All communications from Program Manager to
Owner, excepting only ordinary and routine communications, shall be in writing and shall be
directed to the Owner’s Representative, with copies to such other persons as designated from
time to time by Owner.

4.10 Document Control. Program Manager shall be responsible for Owner’s document
control for the Program and each Project, including reviewing all documents received by Owner
and Program Manager, copying and distribution of documents as necessary, and storage and
retrieval of documents. Program Manager shall confirm that Owner receives all documents
required to be submitted to Owner and that Owner acquires copies of all documents that it is in
the Owner’s interest to acquire.

4.10.1 Computerized System. Program Manager shall implement and utilize a
computerized system for management and control of documents and information. Such
system shall be capable of, at a minimum, cataloging, sorting, searching and retrieving all
permits, correspondence, transmittals, pay requests, change orders, requests for
information, meeting minutes, and progress reports. Owner shall have access to such
system at all times, and all databases created with the system shall be the property of
Owner.

4.11 Maintenance Of Construction Contract Documents. Program Manager shall
maintain on behalf of, and for use by, Owner a complete and current set of all documents
comprising or incorporated in the Construction Contract for the Project.

4.12 Project Reviews With Project Architect. Upon execution of a Design Contract,
Program Manager shall meet with the Project Architect to review the Project analysis, the design
criteria, the Project budget, the design schedule, the Project Schedule, Applicable Laws affecting
the Project, and channels for communications and reporting.

4.13 Verify Project Architect’s Insurance. Program Manager shall review all insurance
certificates and policies submitted by each Project Architect for compliance with the Design
Contract, and shall seek compliance by the Project Architect where necessary. Program Manager
shall verify such compliance to Owner in writing. Program Manager shall not permit a Project
Architect to commence or continue with performance or provision of design services if the Project
Architect is not in full compliance with insurance requirements but shall immediately notify Owner
in writing of such noncompliance.

4.14 Twice Monthly Meetings With Project Architect. During the Design Phase of each
Project, Program Manager shall meet not less than twice every month with the Project Architect
to review the progress of design work and identify any delays or potential delays to the design
schedule, deviation from Owner’s design and budget criteria, and constructability problems.

4.14.1 Identification of Potential Cost Savings. During and after such meetings,
Program Manager shall study and evaluate the construction materials, building systems,
and equipment called for in the design for the purpose of identifying any potential savings
that may be achieved through Value Engineering, commonality or similarity of materials
8
and equipment, procurement by Owner, bulk purchasing and economies of scale.
Program Manager shall also evaluate the design for the purpose of achieving maximum
efficiency and cost-effectiveness in construction and installation, future expandability of
the Project, Life Cycle Costs, ease of maintenance, and economy of operation.

4.14.2 Written Reports To Owner. Within three (3) working days after each such
meeting, Program Manager shall submit to Owner’s Representative and Project Architect
a written report setting out in detail:

(a) Any actual or potential problems, delays or impediments to the successful and
timely completion of the design or the Project, and making recommendations for
eliminating or minimizing same; and

(b) Any potential cost savings, as well as potential improvements in constructability
and operation of the Project and making recommendations regarding same.

4.15 Review Cost-Saving Recommendations With Owner. Program Manager shall
consult with Owner regarding all potential cost-saving measures recommended or identified by
Program Manager. Upon Owner’s written authorization, Program Manager shall implement, or
direct implementation of, such cost-saving measures as Owner approves.

4.16 Review Of Geotechnical Reports. Program Manager shall review all geotechnical
reports submitted in a timely manner and promptly report to Owner in writing any impact upon
cost or timely completion indicated by such reports, along with Program Manager’s
recommendation for cost savings and avoidance of delay.

4.17 Review And Certification Of Project Architect’s Pay Requests. Program Manager
shall review each pay request submitted by a Project Architect and, within seven (7) days of
receiving same, certify to Owner the amount that, in Program Manager’s professional judgment,
is due such Project Architect pursuant to the applicable Design Contract. Such certification by
Program Manager shall be a representation to Owner that the amount certified is currently owed
to such Project Architect under the terms of the Design Contract and that the Program Manager
knows of no reason why any portion of such amount should be withheld.

4.18 Review Of Preliminary Design. Program Manager shall review the Preliminary
Design for the Project upon submission by the Project Architect and shall evaluate same for
completeness, accuracy, clarity, compliance with Project requirements, compliance with Owner’s
design criteria and budget, errors and omissions, coordination of drawings, constructability and
compliance with Applicable Laws.

4.18.1 Written Report To Owner. Upon completion of such review, Program
Manager shall submit to Owner a written report that identifies with respect to the
Preliminary Design any problems or areas of concern and any deviations from the Project
requirements and makes recommendations for eliminating or minimizing same. Such
report shall include Program Manager’s estimate, in such detail as Owner may reasonably
require, of the cost of construction of the Project, and shall identify any deviations from the
original Project budget and the cause of same, as well as any impact upon the Project
budget. The report shall make recommendations for eliminating or minimizing such
deviations, by Value Engineering or other means.

4.19 Review Of Design For Construction. Program Manager shall review the Design
for Construction for the Project upon submission by the Project Architect and shall evaluate same
9
for completeness, accuracy, clarity, compliance with Project requirements, compliance with
Owner’s design criteria and budget, errors and omissions, coordination of drawings,
constructability and compliance with Applicable Laws.

4.19.1 Written Report To Owner. Upon completion of such review, Program
Manager shall submit to Owner a written report that identifies with respect to the Design
for Construction any problems or areas of concern and any deviations from the Project
requirements, and makes recommendations for eliminating or minimizing same. Such
report shall include Program’s Manager’s estimate, in such detail as Owner may
reasonably require, of the cost of construction of the Project, and shall identify any
deviations from the original Project budget and the cause of same, as well as any impact
upon the Project budget. The report shall make recommendations for eliminating or
minimizing such deviations, by Value Engineering or other means.

4.20 Design Reviews. Program Manager shall make recommendations to the Owner
and Project Architects with respect to constructability, construction cost, sequence of
construction, scheduling and separation of the Project into contracts for various categories of
work. Comments of the Program Manager during any Design reviews shall be advisory and not
directives. All reviews shall be provided with due care; provided, however, that the performance
of these reviews will not: (i) relieve the Project Architects of their responsibility to provide sound
designs and to prepare the Construction Documents properly or (ii) make the Program Manager
responsible for, or an insurer of, the designs prepared by the Project Architects and/or the
performance of the Project Architects.

4.21 Services During Bidding. During the bidding or proposing for construction of the
Project, Program Manager shall perform the following services:

4.21.1 In consultation with Owner and, if applicable, the Project Architect, prepare
all necessary bid and proposal forms and documents.

4.21.2 In consultation with Owner, prepare and publish advertisements for bids or
proposals for construction, or in the case of Design/Build Projects, for design and
construction. In scheduling bid or proposal dates, Program Manager shall monitor the
local construction market, noting in particular the bid or proposal dates of other significant
construction projects. To the fullest extent possible consistent with Owner’s scheduling
needs, Program Manager shall avoid setting bid or proposal dates for the Project which
conflict with bid or proposal dates for other construction projects in the area, it being
Owner’s desire to have the maximum possible interest in bidding or proposing on its
Projects.

4.21.3 As necessary, or upon request by Owner, stimulate bidder or offeror
interest by direct contact with qualified contractors and construction managers and
design/builders.

4.21.4 Monitor and expedite the bidding or proposal process by tracking recipients
of bid or proposal documents, obtaining and facilitating answers to bidders’ or offerors’
questions and furnishing necessary information, and facilitating the issuance of addenda.
At the request of Owner, assist Owner in conducting pre-bid or pre-proposal conferences
and attend all site visits.

4.21.5 In respect of Projects that are not Design/Build Projects, assist the Project
Architect in preparing addenda in consultation with the Owner, as necessary. In respect
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of Design/Build Projects, prepare addenda in consultation with the Owner, as necessary.
Review all addenda for accuracy and completeness, compliance with Project criteria,
constructability and impact on the construction schedule and cost, and report any
significant cost or schedule impacts and any problems and areas of concern to Owner
prior to issuance of addenda.

4.21.6 Analyze all bids or proposals received for completeness, responsiveness,
price and compliance with bid bond requirements.

4.21.7 Investigate the background of all bidders or offerors, including such
bidders’ or offerors’ experience in the local construction market, experience in
construction, and if applicable, design, of educational facilities, qualifications to construct,
and if applicable, design, the Project being bid or proposed, financial and bond capacity,
and claims history.

4.21.8 In consultation with the Owner, evaluate bids or proposals and make
recommendations regarding selection of the Contractor.

4.21.9 Program Manager shall assist Owner in negotiating the Construction
Contract with the Contractor selected by Owner. Nothing herein shall be construed to
indicate that the Program Manager shall be engaged in the practice of law, or the giving
of legal advice.

4.21.10 Program Manager shall comply with all Applicable Laws and Owner
policies and procedures in connection with all solicitations of bids and submissions,
interviews and negotiations with all Project Architects, Contractors and other Project
participants.

4.22 Reducing Bid Or Proposal Amounts. In the event that the lowest acceptable bid
or proposal for construction of a Project, or the lowest acceptable bid or proposal for design and
construction in the case of a Design/Build Project, exceeds the construction portion of the Project
budget, or exceeds the design and construction portions of the Project budget in the case of a
Design/Build Project, Program Manager shall, in consultation with the Owner, negotiate with the
lowest responsible, responsive bidder or offeror to lower the bid or proposal to an amount
acceptable to Owner. If such negotiations are unsuccessful in lowering the bid or proposal to an
amount acceptable to Owner, Program Manager shall, in cooperation with the Project Architect if
applicable, advise Owner on means of Value Engineering or lowering the cost of construction
and, if applicable, design. Program Manager shall assist in implementing any measure decided
upon by Owner to achieve such savings.

4.23 Notice To Proceed. Program Manager shall prepare and, after obtaining Owner’s
written approval, issue the notice to proceed to the Contractor.

4.24 Conduct Preconstruction Conference. Program Manager shall conduct a
preconstruction conference with the Project Architect and the Contractor for the purpose of
reviewing any special requirements related to site access, safety, coordination with school
activities, communications and reporting procedures, scheduling, submittals, pay requests,
change orders, inspections and any other matters relevant to the performance of the Program
Manager, Project Architect, and Contractor. Within three (3) business days after the
preconstruction conference, Program Manager shall prepare detailed minutes of the conference
and distribute same to Owner and all attendees.

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4.25 Procurement Of Special Services. Program Manager shall, as Owner’s agent,
procure, coordinate and supervise the services of surveyors, testing laboratories, and other
special consultants required for each Project. Program Manager shall monitor all test results and
notify Owner and Project Architect in writing of any known or observed problems.

4.26 Perform Owner’s Obligations Under Construction Contract. Unless otherwise
directed by Owner, Program Manager shall coordinate with Owner to schedule, coordinate, assist
with and facilitate the performance of, all of Owner’s duties under the Construction Contract. In
addition, and without limiting the generality of the foregoing, and any provision hereof to the
contrary notwithstanding, the Program Manager shall perform, as Basic Services, all of the duties
of the “Owner’s Representative”, as that term is defined in a Design/Build Contract, under each
Design/Build Contract. Program Manager shall coordinate with Owner to schedule and
coordinate the procurement, delivery and security of any materials, furnishings and equipment to
be furnished to the Project or any Project by Owner. Program Manager will monitor and assist in
expediting the progress of the Work.

4.27 Permits And Licenses. Program Manager shall confirm that all permits and
licenses that are required by contract or Applicable Laws are obtained. Program Manager shall
not permit the Contractor to perform any Work requiring a permit or license unless the permit or
license has been obtained.

4.28 Contractor’s Bonds And Insurance Requirements. Program Manager shall review
all insurance certificates and policies, payment bonds and performance bonds submitted by the
Contractor for compliance with requirements of the Construction Contract, and Program Manager
shall maintain on file copies of same. Program Manager shall verify to Owner in writing
Contractor’s compliance with such requirements. Program Manager shall not permit any
Contractor to commence or continue with performance of the Work under the Construction
Contract if such Contractor is not in compliance with all insurance and bond requirements and
shall immediately notify Owner in writing of such noncompliance.

4.29 Review Of Construction Schedule. Program Manager shall review the construction
schedule submitted by the Contractor. Program Manager shall verify that such schedule is
reasonable and practical and conforms with the requirements of the Construction Contract and
the Project schedule, and Program Manager shall represent same to Owner in writing prior to
approving Contractor’s use of such construction schedule. Program Manager shall furnish Owner
a summary of the construction schedule showing the Contractor’s critical path logic and shall keep
the construction schedule and updates thereof available for Owner’s use and review. When
approved by Program Manager, a construction schedule shall be a basis for measuring progress
of a Project and payment to the Contractor.

4.30 Construction Schedule Updates. Program Manager shall obtain and review all
monthly updates of the construction schedules. Program Manager shall verify that such updates
are consistent with the actual progress of construction as observed by Program Manager.
Program Manager shall notify Owner in writing if an update indicates slippage in a construction
schedule or delays to Project completion, and shall make recommendations for eliminating or
minimizing such delays and the effects of same, as well as appropriate withholding of payment
from the Contractor pursuant to the Construction Contract.

4.31 Review Contractor’s Schedules Of Values. Upon receipt from the Contractor,
Program Manager shall examine the Contractor’s schedule of values together with all supporting
documentation that may be required by the Construction Contract. The purpose of such
examination shall be to protect Owner from an unbalanced schedule of values which allocates
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greater value to certain elements of the Work than is indicated by such supporting documentation,
or than is reasonable under the circumstances. If the schedule of values is not found to be
appropriate, or if the supporting documentation is deemed to be inadequate, Program Manager
shall notify Owner and the Project Architect in writing. After making its examination, if the
schedule of values is found by Program Manager to be appropriate as submitted, or if necessary,
as revised, Program Manager shall sign the schedule of values thereby indicating its informed
belief that the schedule of values constitutes a reasonable, balanced basis for payment of the
Construction Contract price to the Contractor. Program Manager shall not sign such schedule of
values in the absence of such belief.

4.32 Project Administration. Program Manager shall provide a management team to
administer the Projects as an agent of Owner. Program Manager shall establish and implement
a program to monitor the quality of the Work. Said program shall be adequate to allow Program
Manager to determine if the quality of the Work for each Project meets the requirements of the
Construction Contract. Program Manager will not issue instructions contrary to the Construction
Contract. The Project administration services performed by Program Manager and the monitory
by the Program Manager of the quality of the construction will in no way release or relive
Contractor from any obligation to perform the Work in accordance with the Construction Contract.
Program Manager will exercise due care in reviewing the quality of the Work, provided however,
that the performance of such quality review:

(a) Shall not relieve Contractor of any obligation to perform the Work in strict conformity
with the Construction Contract and in strict conformity with all Applicable Laws; and

(b) Shall not indicate or imply that Program Manager is in control or charge of any
construction means, methods, techniques or sequences or any safety procedures or
programs in connection with the Work.

Program Manager shall promptly notify Owner in writing of any known material breach of a
Construction Contract by a Contractor and shall take all steps necessary to remedy such breach
and to minimize or eliminate the effect of such breach on the timely and proper completion of the
Work. Program Manager shall coordinate communication between all parties involved in
construction of the Project. Program Manager shall monitor all construction activities and,
through Owner’s Representative and, where applicable, the school principal, coordinate same
with school activities and functions and other needs of the Owner.

4.33 Contract Administration By Project Architect. Program Manager shall monitor the
performance of Construction Contract administration duties by the Project Architect, including,
without limitation, the timeliness of the Project Architect’s review of submittals, change orders and
Contractor pay requests. Owner may require Program Manager to perform, as an Additional
Service unless set forth elsewhere in this Agreement as a Basic Service, all contract
administration duties that would otherwise be performed by the Project Architect.

4.34 Safety; Violations. Program Manager will ascertain that Contractor has safety and
accident prevention programs and procedures in place which cover all construction activities and
all persons at the Project site, including subcontractors, visitors and suppliers or material and
equipment. Without assuming the responsibility of the Project Architect for the accuracy,
adequacy and completeness of design, and without assuming the responsibility of the Contractor,
Program Manager shall immediately notify Owner’s Representative in writing of any known,
observed or suspected safety violations and hazardous conditions occurring or existing anywhere
in the Project.

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4.35 Job Site Meetings. Program Manager shall schedule and conduct regular job-site
meetings with the Project Architect, Contractor, and as necessary, major subcontractors and/or
testing firms. Such meetings shall be scheduled and held with such frequency as may be
appropriate for the Project, but in no event less frequent than monthly. The purpose of such
meetings shall be to address all matters and issues relating to quality, quantity and progress of
the Work. Within three (3) business days after each such meeting, Program Manager shall
prepare and deliver to Owner and all in attendance at such meeting detailed minutes of same.

4.36 Review Of RFI’s. Program Manager shall review all requests for information and
interpretation submitted by Contractors. Where appropriate, Program Manager shall provide
information to Contractors on behalf of Owner. With respect to any interpretation rendered by the
Project Architect of a requirement of the Construction Contract, Program Manager shall carefully
review such interpretation and shall immediately advise Owner in writing if Program Manager
disagrees with any such interpretation. Program Manager shall maintain a log of all requests for
information and interpretation, which shall record the date of receipt of, a description of, and date
of response to, each request.

4.37 Review Of Contractor’s Pay Requests. In respect of Projects that are not
Design/Build Projects, Program Manager shall review each Contractor pay request upon receipt
from the Project Architect, and shall certify to Owner the amount that, in Program Manager’s
professional judgment, is due the Contractor. In respect of Design/Build Projects, Program
Manager shall review each pay request submitted by the Design/Builder and, within seven (7)
days of receiving same, certify to Owner the amount that, in Program Manager’s professional
judgment, is due such Design/Builder pursuant to the Design/Build Contract. Program Manager
shall notify Owner in writing of any disagreement with the Project Architect’s certification and any
reasons for such disagreement. Program Manager’s certification of any Contractor pay request
shall be a representation to Owner that, to the best of the Program Manager’s knowledge,
information and belief, the Work has progressed to the point indicated, the quality of the Work is
in accordance with the Contract Documents, the amount certified is currently owed to the
Contractor under the terms of the Construction Contract and that Program Manager knows of no
reason why any portion of such amount should be withheld.

4.38 Change Order Review. Program Manager shall review all change order requests
or proposals submitted, and, within ten (10) days after receipt thereof, or more expeditiously if
necessary to avoid delay to the construction schedule, shall, after consultation with the Project
Architect, advise Owner in writing as to the cause, necessity, purpose, advantages and
disadvantages, likely cost, likely effect on the construction schedule and the construction
schedule and all other impacts and problems that may result from the issuance or nonissuance
of a change order. Program Manager shall advise Owner of any reasonable alternatives to the
change order request or proposal and shall recommend a course of action. Program Manager
shall negotiate on Owner’s behalf, cost increases and decreases and time extensions resulting
from each change order with the party requesting the change order. Program Manager shall
maintain a log of all change order requests and proposals, the amounts of same, all actions taken
thereon, and the dates thereof. Program Manager will prepare monthly, or more frequently if
reasonably required, a change order report to Owner identifying all additional professional
services, increases in scope, increases in budget and time extensions for each Project.

4.39 Program Manager’s Daily Log. During construction, Program Manager shall
maintain a daily log of events and job site conditions of which the Program Manager is aware,
including, without limitation, adverse weather, specific Work accomplished, equipment
breakdowns and failures, procurement and delivery problems, accidents and injuries, safety
violations and citations, and any other events or circumstances impacting the progress, cost or
14
quality of the Project; provided, however, that Program Manager shall not be required to maintain
a full time presence on the site of the Project, subject to the following provisions of this paragraph
4.39. The Program Manager shall maintain a person on the site of a new school Project for not
less than one half (1/2) day during each and every day there is Work performed on the site of
such new school Project. Subject to the Owner’s rights under paragraph 9.4 of this Agreement,
the Program Manager shall exercise its best efforts to ensure to the fullest extent practicable that
the person referred to in the immediately preceding sentence in respect of a new school Project
is the same person for the duration of such new school Project. Without assuming the
responsibilities of the Project Architect and without assuming the responsibilities of the Contractor,
and subject to those provisions in this Agreement concerning the duties belonging to Contractor,
such person shall affirmatively inquire into the matters described in this paragraph 4.39. Such
person shall maintain a daily log in accordance with the first sentence of this paragraph 4.39 and
shall submit a copy of such log to the Owner not less frequently than weekly.

4.40 Testing And Startup. Program Manager shall observe the testing and startup of
all utilities, operating systems and equipment and shall report the results of same to Owner in
writing. The Project Architect and Contractor shall provide schematic drawings and specifications
and appropriate operational charts relating to mechanical and electrical systems for posting in the
mechanical equipment rooms. Program Manager shall deliver to Owner all written material such
as operations and maintenance manuals for all equipment, and all warranties and guaranties
required by the Construction Contract.

4.41 As-Built Drawings. Program Manager shall review all as-built drawings and shall
certify to Owner that all as-built drawings are adequate and complete based on the Program
Manager’s investigation, knowledge and belief.

4.42 Owner Training. Program Manager shall arrange for training of Owner’s personnel
in the maintenance and operation of all equipment and systems.

4.43 Punchlists And Defective Work; Certificates Of Completion. Program Manager
shall, with the assistance of the Project Architect, make determinations as to whether all or
significant portion of the Work are Substantially Complete and will prepare a punchlist and notify
Contractor of any observed incomplete or defective Work. When incomplete or defective Work
has been remedied by Contractor, Program Manager will advise Owner of the acceptability and
completeness of all or significant portions of the Project and, together with the Architect, issue a
Certificate of Substantial Completion pertaining to completed Work. Program Manager shall, in
conjunction with the Project Architect and after the correction of all punchlist items, make a final
comprehensive inspection of the Project and, in conjunction with the Project Architect, make a
report to Owner which will indicate whether the Program Manager and Architect find the Work to
be acceptable and in accordance with the Construction Contract. Program Manager shall report
to Owner on a weekly basis and in writing the Contractor’s progress in curing and completing
punchlist Work.

4.44 Transfer Of Project To Owner. Program Manager shall assist Owner in the transfer
of the completed Project to Owner. Such assistance shall include, without limitation, procuring
keys to the Project, transfer of Project security, obtaining the certificate of occupancy and all other
matters relating to Owner’s initial occupation and possession of the Project.

4.45 Claims Assistance. Program Manager shall review and evaluate any and all claims
for additional compensation or time extensions submitted by the Contractor or the Project
Architect. Program Manager shall consult with Owner with respect to the nature, basis and merits

15
of such claims. If requested by Owner in writing, Program Manager shall negotiate such claims
with the claimant on Owner’s behalf.

4.46 Warranty Work. During the one (1) year period after Substantial Completion of
each Project, Program Manager will provide evaluation services for the purpose of determining
the cause and potential solutions for any significant Project problems and finding a solution to
such problems. Any evaluation service performed by Program Manager shall be conducted in
conjunction with the Project Architect. The Program Manager will conduct follow-up inspections
as required to verify that all warranty items have been corrected. Program Manager shall conduct
monthly meetings with the principals of schools that are under warranty for the purpose of
identifying and addressing construction related issues that arise during the warranty period.
Program Manager shall develop a tracking list of issues identified and maintain an ongoing status
of the resolution of the issues identified. Program Manager shall report to Owner in writing all
such warranty work performed and any problems experienced with the delivery and quality of
such performance.

4.47 Final Payment and Accounting. Program Manager will assemble all final lien
releases provided by Contractor and will recommend to Owner whether to make final payment to
Contractor. Program Manager will, based upon information provided to Program Manager by the
Project Architect and Contractor, prepare a final cost accounting report for each Project. If, after
final payment to a Contractor, including final payment to a Contractor which is terminated or which
has abandoned a Project, it is determined that the Contractor has received total payments in
excess of the amount to which it is entitled based on Program Manager’s approval of an
application for payment or a recommendation for final payment, the Program Manager shall
demand reimbursement of said payment from the Contractor. In the event Contractor fails to
make said reimbursement within thirty (30) days after said demand and the Program Manager did
not exercise the standard of care required of it under this Agreement in approving the application
or making the recommendation that led to the excess payment, Program Manager shall be
responsible to reimburse Owner for said payment. As to any such reimbursement made by
Program Manager, Program Manager shall be subrogated to Owner’s rights against the
Contractor and surety.

4.48 Project Architect Or Contractor Default. In the event of a default by a Project
Architect or Contractor, Program Manager shall perform services made necessary solely by the
default of a Project Architect or a Contractor including, without limitation, evaluating, reporting and
documenting the existing status of the Work, assisting Owner with evaluating proposals for
replacement Project Architects and/or Contractors, developing recovery schedules, and assisting
Owner with any claims made by or against any defaulting party; provided, however that Program
Manager shall not be required to act as a replacement Project Architect or Contractor hereby.

4.49 Submission Of Documents To Reviewing Agencies. Program Manager shall
ensure that all required submissions of documents to reviewing agencies, both governmental and
otherwise, are complete, timely and in compliance with the requirements of such agencies.

ARTICLE 5

ADDITIONAL SERVICES

5.1 Generally. During the planning, design and construction of the Project, and at all
times relevant thereto, Program Manager shall perform the services, duties, obligations and
responsibilities set forth in, or reasonably implied by or inferable from, this Article 5, if authorized

16
and directed by written Change Order executed by Owner pursuant to Article 8 herein. Program
Manager agrees to and accepts this scope of Additional Services.

5.2 Changes In The Program. Program Manager shall perform such services as may
reasonably be required due to significant changes made in the Program after execution of this
Agreement.

5.3 Owner’s Insurance. Program Manager shall, in cooperation with Owner’s risk
management representative, determine Owner's insurance needs for the Program and each
Project and assist Owner as needed in procuring necessary coverage.

5.4 Owner Requested Services. Program Manager shall perform such other services
related to the Program and the intent of this Agreement as Owner may reasonably request.

ARTICLE 6

OWNER'S OBLIGATIONS OTHER THAN PAYMENT

6.1 Provide Program And Project Information. Owner shall provide Program Manager
with adequate information regarding Owner's requirements for the Program and each Project,
including any desired or required schedules and any budgetary requirements.

6.2 Owner’s Representative. The Owner’s Representative shall serve as Owner’s
Representative for the duration of the Program unless and until replaced by Owner, with written
notice of such replacement furnished to Program Manager. Owner’s Representative is the only
representative of Owner entitled to act on behalf of Owner with respect to this Agreement and the
requirements hereof. However, Owner’s Representative does not have authority to waive or
modify any requirement, condition or term of this Agreement.

6.3 Review Of Documents. Owner shall review any documents submitted by Program
Manager requiring Owner's decision and shall render any required decisions pertaining thereto.

6.4 Access To The Site And The Work. Owner shall provide Program Manager access
to each Project site and to the Work as necessary for Program Manager to perform this
Agreement.

6.5 Cooperation To Secure Permits. Owner shall cooperate with Program Manager in
securing any necessary licenses, permits, certificates, approvals or other necessary
authorizations for the construction and occupancy of each Project.

6.6 Timely Performance. Owner shall perform those obligations set forth in the
Agreement in a reasonably expeditious fashion so as to permit the orderly progress of Program
Manager's Services, the Program and each Project.

6.7 Owner's Reviews, Inspections, Approvals, And Payments. Owner's review,
inspection, or approval of any Preliminary Design, Design for Construction, Construction Contract,
any other design or construction documents, any Work, any schedules, or any documents
prepared or submitted by Program Manager shall be solely for the purpose of determining whether
same are generally consistent with the Program or Project and Owner's requirements, therefore.
No review, inspection, or approval by Owner of such Designs, Work or documents shall relieve
Program Manager of its responsibility for the strict performance of its obligations under this
Agreement or for the accuracy, adequacy, fitness, suitability, or coordination of its Services and
17
work product. Payment by Owner pursuant to this Agreement shall not constitute a waiver of any
of Owner's rights under this Agreement or at law.

6.8 Non -Waiver. It is expressly agreed that Owner's failure to exercise any right or
remedy or to require Program Manager’s strict compliance with Program Manager’s obligations
under this Agreement shall not be a waiver or an estoppel of the right to exercise such right or
remedy or to insist on such compliance at any other time or on any other occasion.

6.9 Program Manager’s Notice Of Nonperformance. If Program Manager believes that
Owner is failing, or has failed, to perform properly and timely any of Owner’s obligations
hereunder, Program Manager shall promptly furnish written notice of same to Owner with copies
to the Superintendent of Schools, Owner’s Representative and to Owner’s legal counsel. Failure
by Program Manager to comply with the requirement of this paragraph 6.9 shall constitute a
waiver of, and estoppel of the right to assert, any claim or defense related to such failure of
performance by Owner.

6.10 Office Space. Owner shall provide office space, office telephones, furniture, office
supplies and filing cabinets for the Program Manager at the Sam A. Moss Service Center or such
other location as Owner may from time to time designate. All other costs of Program Manager’s
office shall be borne by the Program Manager and are included in the fee for Basic Services.

ARTICLE 7

PAYMENTS TO PROGRAM MANAGER

7.1 Basis Of Compensation. Owner shall pay, and Program Manager shall accept, as
full and complete compensation for Program Manager’s performance of Basic Services, a fee of
$_15,185,671.64_, as such fee may be increased or decreased for changes in scope as set forth
herein. The fee shall be payable to Program Manager in sixty (60) equal monthly installments.
Payment of the fee in full is contingent upon and requires Program Manager to complete all of the
Projects in the CIP. In the event all of the Projects are not completed within such sixty (60) month
period through no fault of the Contractor, Contractor shall be entitled to the full fee. In the event
all of the Projects are not completed within such sixty (60) month period and Program Manger’s
fault is a contributing cause of the delay, the parties shall negotiate in good faith an equitable
adjustment to the Program Manager’s compensation and a credit to Owner. In the event that the
Owner elects not to commence any Project in the CIP or otherwise materially changes the scope
of such Projects, the parties shall negotiate in good faith an equitable adjustment to the Program
Manager’s compensation.

7.2 Additional Services. Owner and Program agree to negotiate in good faith the
additional compensation payable for additional services. Any Additional Services and the
compensation therefore shall be set forth in a written amendment to this Agreement.

7.2.1 In the event that Owner and Program Manager agree upon a specific scope
of work to be performed as Additional Services, they may agree to perform the work on a
lump sum basis. In the event the parties agree to payment on a lump sum basis, the
amendment to this Agreement shall include the time within which the Additional Services
are to be provided, and the total agreed-upon compensation shall be divided equally over
the number of months such Additional Services are to be provided.

7.2.2 Owner may elect to pay for Additional Services based upon the hourly fee
schedule attached as Exhibit “A” to this Agreement. In such event, Program Manager
18
shall submit detailed monthly bills on a monthly basis setting forth the name, job category,
billing rate and hours worked on each day for all individuals performing work associated
with the Additional Services. Such payments shall be paid monthly in arrears.

7.3 Reimbursable Expenses. Program Manager shall be reimbursed at cost and
without mark-up for reasonable out-of-town travel expenses if approved in advance by Owner.
The cost of printing, for drawings, specifications and bid packages shall be paid directly by Owner.

7.4 Taxes And Fees. Program Manager’s compensation shall be deemed to include,
and Program Manager shall be responsible for payment of, all federal, state and local taxes,
assessments and fees related to this Agreement and the performance thereof which are enacted
and effective as of the date of this Agreement.

7.5 Program Manager’s Pay Request. On or before the fifth day of each month after
Program Manager commences performance of the Basic Services, Program Manager shall
submit to Owner a request for payment (“Pay Request“) for the Services performed by Program
Manager for the preceding month. The Pay Request shall be supported by such documentation
as Owner may require, including certified time sheets for all of Program Manager’s personnel and
other persons who have performed Services for which payment is requested on an hourly fee
basis. Copies of paid receipts for expenses for which Program Manager seeks reimbursement
shall be furnished as part of the Pay Request. Unless otherwise directed by Owner’s
Representative, Pay Requests shall be submitted to Owner’s Representative for approval in
triplicate.

7.6 Releases Of Claims. All Pay Requests shall be accompanied by Program
Manager’s executed release and waiver of claims in the form attached hereto as Exhibit ”B”.
Program’s Manager’s Pay Request for final payment shall be accompanied by an executed
release and waiver of claims in the form attached hereto as Exhibit ”C”.

7.7 Certification Relating To Pay Requests. Each Pay Request shall bear the
signature of Program Manager's Program Director, which signature shall constitute Program
Manager's representation to Owner that the Basic Services and/or Additional Services indicated
in the Pay Request have been properly and timely performed as required herein, that the
Reimbursable Expenses included in the Pay Request have been actually, reasonably and
properly incurred, that all obligations of Program Manager covered by prior Pay Requests have
been paid in full, and that, to the best of Program’s Manager's knowledge, information and
informed belief, the amount requested is currently due and owing, there being no reason known
to Program Manager that payment of any portion thereof should be withheld. Submission of
Program Manager's Pay Request for final payment shall further constitute Program Manager's
representation to Owner that, upon receipt from Owner of the amount requested, all obligations
of Program Manager to others incurred in connection with the Project, will be paid in full. In the
event that Owner becomes credibly informed that any of the foregoing representations by
Program Manager are wholly or partially inaccurate, Owner may withhold payment of sums then
or in the future otherwise due to Program Manager until the inaccuracy, and the cause thereof, is
corrected to Owner's reasonable satisfaction.

7.8 Payment Of Pay Requests. Owner shall make payment to Program Manager of
all sums properly invoiced and approved under the provisions of this Article 7, less any withheld
amount authorized by this Agreement and less any amounts owed by Program Manager to
Owner, not more than thirty (30) days following Owner’s receipt of the Pay Request, provided that
the Pay Request is in proper order, is supported by all required documentation, and that all

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conditions precedent to payment have been satisfied; otherwise, the time for payment of such
Pay Requests shall be extended by the amount of time required to cure such deficiencies.

7.9 Withholding Of Payment. Any provision hereof to the contrary notwithstanding,
Owner shall not be obligated to make a payment or payments to Program Manager otherwise due
or thereafter to become due, to the extent that any one or more of the following conditions exists:

(a) Program Manager’s Pay Request is not in the form or supported by the
documentation required by this Agreement;

(b) Program Manager is in default of any of its obligations hereunder or under the
applicable Project Order;

(c) Any part of such payment is attributable to performance by Program Manager
which Owner adjudges to be deficient or not conforming with the requirements of
this Agreement; provided, however, that payment shall be made as to the part
thereof attributable to performance which is rendered in accordance with this
Agreement and is not deficient, subject to other provisions hereof;

(d) Program Manager has failed to make payments promptly to its Subcontractors,
consultants, employees, or others performing Services in connection with the
Program in accordance with any agreement therefor, or any person has filed a
claim that Program Manager has failed to make payments due to such person; or

(e) Any person has asserted a claim against Owner in whole or in part on account of
alleged acts or omissions of Program Manager.

In the event that any of the foregoing conditions exist, Owner shall be entitled to retain from any
sum then due or thereafter to become due an amount sufficient in the judgment of Owner to
satisfy, discharge, and defend against such claims, to make good any losses, prospective losses,
costs, attorney’s fees, and other expenses which may result from the existence of such conditions.

7.10 Disputed Pay Request. In the event Owner's Representative disagrees with or
questions all or any portion of any Pay Request, the amount due to Program Manager, or the
sufficiency of the information and documentation submitted by Program Manager, Owner's
Representative shall notify Program Manager in writing and Owner shall pay the undisputed parts
of such Pay Request. If Owner's Representative and Program Manager are able to agree on the
amount due under the disputed part of any Pay Request, payment will be made by the payment
due date on the original Pay Request or ten (10) days after receipt of a new Pay Request
representing the agreed amount, whichever is later.

7.11 Conditions Precedent To Payment. In addition to all other conditions contained in
this Agreement, it shall be a condition precedent to any payment otherwise due hereunder that:
(a) Program Manager not be in material breach of this Agreement; (b) Program Manager has
submitted all documents required by this Agreement; and (c) Program Manager has submitted its
Pay Requests and backup documentation in the time, form, and manner required by this
Agreement.

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ARTICLE 8

CHANGE ORDERS

8.1 Owner’s Authority To Order Changes. Owner may, without affecting the validity or
enforceability of this Agreement, direct changes in the Services, including additions, deletions,
modifications, and revisions thereto, and direct Program Manager to perform Additional Services.
Program Manager shall promptly proceed with the performance of the Additional Services in
accordance with Owner’s directions, and failure to agree on the specific terms of a Change Order
shall not be cause for Program Manager’s failure to perform the Services or to proceed with any
directed change, so long as Owner and Program Manager agree that there has been a change
to the Services.

8.2 Adjustments To Compensation By Change Order Only. Adjustments to the
Program Manager’s compensation for the Services may be made only by Change Order in
accordance with the terms of this Article.

8.3 Increases To Program Manager’s Compensation. If Owner directs a change in the
time or scope of the Services required of Program Manager, or if Owner directs Program Manager
to perform Additional Services, then Program Manager’s compensation shall be equitably
adjusted by a Change Order; provided, however, and on condition that:

(a) No upward adjustment shall be made to the Program Manager’s compensation
and no payment of Reimbursable Expenses shall be authorized if such change in
the time or scope of the Services, or the need for Additional Services, is caused
by the fault, in whole or in part, of Program Manager; and

(b) Program Manager gives Owner written notice within seven (7) days after the
occurrence of the event or commencement of the condition giving rise to the claim
for additional compensation and promptly thereafter submits to Owner its
documented claim for additional compensation and makes available to Owner all
pertinent information requested by Owner relating to such claim, and such request
is approved by Owner, which approval shall not be unreasonably withheld.

8.4 Reductions In Program Manager’s Compensation. If the Program Manager’s
Services are reduced in time or scope, the Program Manager’s compensation shall be equitably
adjusted by Change Order.

8.5 Payment. Payment for Services performed pursuant to a Change Order shall be
requested and made in accordance with, and shall be subject to, the provisions of Article 7.

8.6 Change Orders Final. The parties’ agreement on any Change Order shall
constitute a final settlement on all items covered by such Change Order, as well as all issues and
matters related in any way to the circumstances forming the basis for the Change Order.

ARTICLE 9

PERSONNEL, SUBCONTRACTORS AND CONSULTANTS

9.1 Generally. In addition to any and all other duties, obligations and responsibilities
of the Contractor set forth in this Contract, the Contractor shall have and perform the following
duties, obligations and responsibilities to the Owner:
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9.1.1 Background Checks. A criminal background check must be performed on
all contractors, consultants, subcontractors, volunteers and vendors (hereinafter jointly referred
to as "Individuals") who provide services on DCSD premises, supervise services on DCSD
premises, or has contact with students. These Individuals shall undergo the same criminal
background check, within the last 365 days, as required by DCSD employees. Such background
checks will be performed by DCSD at the expense of the Individual at a cost of $45.00 per
individual. Additionally, any charges against the Individual, may be deemed unacceptable in
DCSD’s sole discretion regardless of whether dismissed, expunged, sealed, removed from the
record, treated as a “first offender” or dead docketed. Upon receipt and evaluation of DCSD’s
background check results, DCSD may demand that the Individual have no contact with DCSD
students or parents, or provide services to DCSD premises. Any failure of the contractor to obtain
a criminal records background check through DCSD, as stated herein, may result in termination
of any resulting contract between contractor and DCSD.

9.2 Approval Of Program Manager's Subcontractors Required/Required Subcontract
Terms. Program Manager shall not subcontract to any person or entity (including affiliates of
Program Manager) any part of the Services to be rendered by Program Manager under this
Agreement without Owner's prior written approval. Program Manager shall provide Owner with
such information as Owner deems necessary in order to determine whether to approve any such
subcontracts. All such subcontracts shall afford Program Manager rights against its
Subcontractors and consultants which correspond to the rights afforded to Owner against
Program Manager herein, including, without limitation, those rights of contract suspension,
termination, replacement of unsatisfactory personnel at Owner's request, and documentation of
Subcontractor and consultant charges as set forth herein.

9.3 Program Manager Responsible For Acts Of Subcontractors. Should Program
Manager subcontract all or any part of the Services required under this Agreement, such
subcontracting of the Services shall not relieve Program Manager from any liability or obligation
under this Agreement or under any Applicable Law, and Program Manager shall be responsible
for any and all acts, defaults, omissions and negligence of its Subcontractors and consultants. It
is expressly agreed that no relationship of agency, employment, contract, obligation or otherwise
shall be created between Owner and any Subcontractor or consultant of Program Manager, and
a provision to this effect shall be inserted into all agreements between Program Manager and its
Subcontractors and consultants.

9.4 Program Manager’s Personnel. Program Manager shall assign only qualified
personnel to perform the Services and any functions related to the Program and any Project.

9.4.1 Engineers. Without assuming the responsibility of the Project Architect for
the accuracy, adequacy and completeness of design, and without assuming the
responsibility of the Contractor, Program Manager shall at all times have available to
provide Additional Services to the Program and each Project at least one (1) engineer,
licensed in the State of Georgia, for each of the following disciplines: civil, electrical,
mechanical, and structural. Owner may, in its sole discretion, elect to waive the licensing
requirement in favor of a person with an acceptable level of experience.

9.4.2 Chief Executive. Upon forty-eight (48) hours notice from Owner, Program
Manager’s Chief Executive Officer, or equal, shall be made available for consultation with
Owner as Owner, in its sole discretion, deems necessary.

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9.4.3 Prior Approval By Owner. Program Manager shall not assign any
personnel to the Program without first obtaining written approval of such assignment from
Owner’s Representative. In order to permit Owner to evaluate Program Manager’s
prospective personnel assignments, Program Manager shall make all such personnel
available for interviews by Owner and Owner’s staff, at Owner’s place of business, and
shall furnish resumes of prospective personnel. At the time of execution of this
Agreement, the individuals listed in Exhibit ”A” have been approved by Owner.
Subsequent personnel assignments shall be added to Exhibit ”A”, upon approval in
accordance with this paragraph 9.3. Individuals listed in Exhibit “A”, shall not be changed
unless: (a) Owner exercises its rights set forth in paragraph 9.4, (b) Owner gives prior
written authorization for such change, or (c) any such individual ceases to be employed
or retained by Program Manager or any parent, affiliate, subsidiary, or joint venture partner
thereof, in which case immediate written notice of same shall be given to Owner.

9.4.4 Continuity of Staff. In addition to the Owner’s rights under subparagraph
9.4.3, and subject to the Owner’s rights under paragraph 9.4, Program Manager shall
exercise its best efforts to ensure to the fullest extent practicable that the individuals
assigned by Program Manager to staff the Program remain the same, and in their same
positions, for the duration of the Project(s) to which they are assigned. Program Manager
acknowledges that such continuity of staff is of material importance to the Owner, and that
the failure of such continuity may result in inefficiency and cause damage to the Owner.

9.5 Removal Of Personnel And Subcontractors. If at any time during the course of the
Program, Owner reasonably determines that the performance or conduct of any member of
Program Manager's staff or any of Program Manager’s Subcontractors or consultants working on
the Program or any Project is unsatisfactory, Owner's Representative may require Program
Manager to remove such staff member or terminate such Subcontractor or consultant from the
Project immediately and replace the staff member or Subcontractor or consultant, subject to
approval in accordance with paragraph 9.3, at no cost or penalty to Owner for delays or
inefficiencies the change may cause.

9.6 Employment Taxes. Program Manager shall be responsible for payment of all
unemployment compensation, social security, and other similar taxes and benefits covering its
employees.

ARTICLE 10

PROGRAM AND PROJECT DOCUMENTS

10.1 Use And Ownership. All Preliminary Designs, Designs for Construction, schedules
and schedule updates, Construction Contracts, including, but not limited to, drawings, plans,
specifications, and other documents or things pertaining to the Program and the Projects are the
sole property of Owner. Such drawings, specifications and other documents and things shall not
be used by Program Manager for any purpose other than the design and construction of the
Projects unless Owner shall first agree otherwise in writing. Program Manager shall indemnify
and save Owner harmless from any and all liabilities, costs, claims, damages, losses and
expenses, including reasonable attorneys’ fees, arising out of, or resulting from, any unauthorized
use of said documents and things by Program Manager.

10.2 Availability Of Program And Project Records To Owner. All records, documents
and things relating to the Projects which are in the possession of Program Manager, including
without limitation Program Manager’s books and records relating to the Program and the Projects,
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shall be made available to Owner, its designee, and any governmental authority for auditing,
inspection and copying upon written request made by Owner. Such records also include, without
limitation, all drawings, plans, specifications, Construction Contracts, Submittals, daily logs and
dairies, correspondence, minutes and notes of meetings, memoranda, audio or video tape
recordings, computer-based files and storage instruments, and other writings or things which
document each Project, its design, and its construction.

10.3 Maintenance Of Program And Project Records. Program Manager shall maintain
and protect all Program and Project-related documents, records and things for not less than five
(5) years after the termination of this Agreement. Program Manager shall give Owner thirty (30)
days written notice prior to disposal or destruction of any such documents, records and things.

ARTICLE 11

INDEMNITY

Program Manager shall, to the fullest extent permitted by law, indemnify and hold
harmless Owner from and against all liability, claims, losses, damages, costs and expense of any
nature or kind, including without limitation, attorneys’ fees, costs of investigation and all litigation-
related expenses, sustained or incurred by Owner to the extent arising out of and attributable to
the negligent or wrongful performance of Services, or breach of this Agreement by Program
Manager, or negligent or wrongful acts and omissions of Program Manager, its Subcontractors,
employees, agents or consultants. This duty to indemnify Owner shall extend to, but not be limited
to, claims for bodily injury (including death), for damage to or loss of property, and for
environmental damage and liabilities, incurred or sustained by Owner or any third person to the
extent resulting from and attributable to any breach of contract, negligent or wrongful acts or
omissions of Program Manager, its employees, Subcontractors, agents, and consultants.

ARTICLE 12

INSURANCE

12.1 Coverage Required. Program Manager shall, throughout the duration of this
Agreement, and for a period of two (2) years after the termination of this Agreement, maintain at
its own expense the following insurance, in the minimum limits set forth below, , written by insurers
acceptable to Owner and in a form acceptable for Owner:

12.1.1 Workers' Compensation to statutory limits.

12.1.2 Employers Liability, One Million dollars ($1,000,000) per occurrence.

12.1.3 Comprehensive General Liability, with combined limit for bodily injury,
sickness or disease, death, and property damage of not less than One Million dollars
($1,000,000) per occurrence, One Million dollars ($1,000,000) annual aggregate.

12.1.4 Automobile Liability covering all owned, non-owned or hired vehicles, with
combined single limit of One Million dollars ($1,000,000) per occurrence, Two Million
dollars ($2,000,000) annual aggregate.

12.1.5 Excess/Umbrella Liability in excess of items 12.1.2, 12.1.3, 12.1.4 and
12.1.5 above, in the amount of Five Million dollars ($5,000,000) per occurrence.

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12.1.6 Professional Errors and Omissions insurance, with a limit of Three Million
dollars ($3,000,000.00), per occurrence, Three Million dollars ($3,000,000) annual
aggregate.

12.2 Owner As Additional Insured. Owner shall be included as an additional insured by
endorsement to include a 30-day intent to cancel on the coverages specified in subparagraphs
12.1.3, 12.1.4 and 12.1.5, and shall be indicated as such on certificates of insurance required
herein.

12.3 Certificates Of Insurance/Cancellation Notice. Not later than ten (10) days after
execution of this Agreement, Program Manager shall furnish to Owner original signed certificates
of insurance showing that the insurance required by this Article 12 is in force. Such certificates
shall provide for thirty (30) days written notice to Owner prior to cancellation or material change
in any insurance coverage or policy.

12.4 Subcontractor/Consultant Coverage. Unless expressly waived by Owner in
writing, Program Manager shall permit no Subcontractor or consultant retained by Program
Manager to enter upon any Project site or perform any Services unless such Subcontractor or
consultant is and remains insured in accordance with the requirements of paragraphs 12.1, 12.2
and 12.3. Program Manager shall indemnify Owner for any loss or damage suffered by Owner
as a result of the failure of any of Program Manager’s Subcontractors or consultants to be so
insured.

12.5 No Limitation On Program Manager's Liability. The obligations of the Program
Manager to procure and maintain insurance shall not be construed to waive or restrict other
obligations, including but not limited to Program Manager’s indemnification obligations, and it is
understood that insurance in no way limits the liability of the Program Manager whether or not
same is covered by insurance.

ARTICLE 13

SUSPENSION

13.1 Owner’s Right To Suspend. Owner may for any reason whatsoever suspend, in
whole or in part, the Program, any Project, the performance of any Work, and performance of
Program Manager’s Services under this Agreement. Owner shall give written notice of such
suspension to Program Manager specifying when such suspension is to become effective and
the scope thereof.

13.2 Ceasing Performance Upon Suspension. From and upon the effective date of any
suspension ordered by Owner, Program Manager shall incur no further expense or obligations in
connection with the suspended portion of the Program, Project or Services, and Program
Manager shall cease performing Services as directed by Owner. Program Manager shall also
promptly suspend any of its open or outstanding contracts, subcontracts, or purchase orders
related to the suspended portion of the Program, Project or the Services.

13.3 Resumption Of Work After Suspension. If Owner lifts the suspension it shall do so
in writing, and Program Manager shall promptly resume performance of the Services required by
this Agreement unless, prior to receiving the notice to resume the Services, Program Manager
has exercised its right of termination as provided in Paragraph 14.8 herein.

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13.4 Claim For Costs Of Suspension. Within forty-five (45) days after either the
resumption of the suspended portion of the Program, any Project or Services or termination by
Program Manager pursuant to paragraph 14.8, Program Manager may submit an itemization of
expense and time expended as a result of the suspension, together with costs, pricing or other
data required by Owner. Program Manager's failure to provide such itemized information within
such forty-five (45) day time period shall constitute a waiver of any claim to compensation relating
to the suspension of Program Manager's work under this Agreement. Owner shall promptly
review Program Manager's itemization and shall issue a Change Order providing for payment to
Program Manager of such amounts as may be due on account of the suspension, which amounts
shall be limited to direct costs resulting from the suspension and shall not include lost profits or
other consequential damages related to or resulting from the suspension.

ARTICLE 14

TERMINATION

14.1 Termination For Convenience. Owner may for any reason whatsoever terminate,
in whole or in part, the Program, one or more Projects, this Agreement, or Program Manager’s
employment under this Agreement, for Owner’s convenience. Owner shall give written notice of
such termination to Program Manager specifying when termination becomes effective and the
scope of the termination.

14.2 Ceasing Performance Upon Termination. Program Manager shall incur no further
obligations in connection with the terminated portion of the Program, a Project or this Agreement
and Program Manager shall cease performance of Services when and to the extent such
termination becomes effective.

14.3 Compensation For Termination For Convenience. As full compensation to
Program Manager for any termination for convenience, Owner shall pay Program Manager all
due or unpaid fees through the date of termination.

14.4 Termination For Cause. If Program Manager fails and/or refuses to perform its
Services and responsibilities under this Agreement in a timely manner, supply enough properly
skilled personnel, make prompt payment to its Subcontractors or consultants, or comply with
Applicable Laws, or if Program Manager is otherwise guilty of a material breach of this Agreement
or any representations or warranty made herein, then Owner may, by written notice to Program
Manager, and without prejudice to any other right or remedy, terminate in whole or in part, one or
more Projects, this Agreement or the employment of Program Manager under this Agreement,
and take possession of all design documents, Construction Contracts, and all other Program and
Project-related documents and things in the possession of Program Manager, and finish the
Program and Projects by whatever methods it deems expedient. In such event, Owner shall be
under no obligation to make further payment to Program Manager until Owner has been
indemnified from any and all loss.

14.5 Erroneous Termination For Cause. In the event the employment of Program
Manager is terminated by Owner for cause and it is subsequently determined by a court or other
tribunal of competent jurisdiction that such termination was, for any reason, without just or proper
cause, then such termination shall thereupon be deemed a Termination for Convenience under
paragraph 14.1 and the provisions of paragraph 14.3 regarding compensation shall apply.

14.6 Completion By Owner And Survival Of Obligations. Following any termination,
whether for convenience or for cause and whether in whole or in part, Owner may complete the
26
Program, any Projects and the Services by whatever means Owner deems most expedient.
Program Manager’s obligations and all provisions of this Agreement shall continue in full force
and effect as to all Services performed prior to the effective date of the termination and as to that
portion of the Program, Projects and Services not affected by the termination.

14.7 Termination By Program Manager. If the Program is suspended for a period of
more than ninety (90) consecutive days by governmental authority or by direction or neglect of
Owner's Representative, and through no fault of Program Manager, or if Owner fails to pay
Program Manager any undisputed amount due on any undisputed invoice within thirty (30) days
after receipt of written notification from Program Manager that such payment is overdue, then
Program Manager may, upon seven (7) days prior written notice to Owner, terminate its Services
hereunder.

ARTICLE 15

MISCELLANEOUS PROVISIONS

15.1 Publicity By Program Manager. Signs and advertisements of Program Manager
or any of its Subcontractors or consultants will not be allowed on any Project site or any building
or structure thereon without Owner’s prior written approval.

15.2 Notices. Any notice required to be given herein shall be deemed to have been
given to the other party if (a) given by first class mail, registered air express mail, courier service,
or hand delivery; or (b) by telex or fax or email, provided that such notice is also confirmed by first
class mail, registered air express mail, courier service, or hand delivery, to the following
addresses:

To Owner: DeKalb County Board of Education
1780 Montreal Road
Tucker, Georgia 30084
Attention: Richard H. Boyd____
Title: Interim Chief Operating Officer__
Email: _richard_boyd@dekalbschoolsga.org__

To Program Manager
or other designee with authority:

All notices shall be effective upon receipt.

15.3 Successors And Assigns. Program Manager shall not assign its rights hereunder,
excepting its right to payment, nor shall it delegate any of its duties hereunder without Owner’s
prior written consent. Owner shall have the right to assign its rights under this Agreement, but
any such assignment shall not relieve Owner of its obligations hereunder. Subject to the
provisions of the immediately preceding sentence, Owner and Program Manager, respectively,
bind themselves, their successors, assigns and legal representatives to the other party to this
Agreement and to the successors, assigns and legal representatives of such other party with
respect to all terms and conditions of this Agreement.

15.4 No Third-Party Beneficiaries. Nothing contained in this Agreement shall create a
contractual relationship with, or any rights in favor of, any third party, including, without limitation,
any Project Architect, Contractor, supplier, subcontractor or consultant.

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15.5 Severability. In the event any provision of this Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction or other competent tribunal or rendered
invalid by any legislative or regulatory enactment, the remaining provisions of this Agreement
shall remain in full force and effect, and such holding or enactment shall not invalidate or render
unenforceable any other provision hereof.

15.6 Headings. The headings used in this Agreement are merely for convenience and
have no other force or effect.

15.7 Exhibits. All exhibits annexed hereto are incorporated by reference and made a
part of this Agreement.

15.8 ”Including”. The terms” including“, ”includes“, and their derivatives are not intended
as terms of limitation, and shall be deemed in each instance to be followed by the phrase ”without
limitation. ”

15.9 Governing Law; Jurisdiction And Venue. This Agreement shall be governed by the
laws of the State of Georgia without regard to principles of conflict of law. The Owner and the
Program agree that jurisdiction and venue of any legal action relating to the interpretation or
enforcement of this Agreement or to the provision of Services under this Agreement shall be
proper only in the Superior Court of DeKalb County, Georgia, and each agrees to irrevocably
submit to the exclusive jurisdiction of the Superior Court of DeKalb County, Georgia for the
purpose of any such action.

15.10 Entire Agreement/Amendments In Writing. This Agreement represents the entire
agreement between Owner and Program Manager and supersedes all prior communications,
negotiations, representations, or agreements, either written or oral. This Agreement may be
amended only by written instrument signed by both Owner and Project Program.

15.11 Hazardous Materials. Program Manager and its consultants will have no
responsibility for the discovery, presence, handling, removal or exposure of persons to hazardous
materials in any form at any Project site.

15.12 Delays Beyond Reasonable Control. Neither Owner nor Program Manager will be
responsible for any delays beyond its reasonable control.

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SCHEDULE OF EXHIBITS
TO MASTER AGREEMENT FOR PROGRAM MANAGEMENT SERVICES

EXHIBIT “A” Schedule of Hourly Rates

EXHIBIT “B” Partial Waiver and Release of Claim Rights

EXHIBIT “C” Final Waiver and Release of Claim Rights

EXHIBIT “D” Contractor Affidavit

EXHIBIT “E” Subcontractor Affidavit

EXHIBIT “F” List of Proposal Documents for the Project

EXHIBIT “G” Owner’s Criteria and Narrative Scope of Work

EXHIBIT “H” Contractor’s Submittals

EXHIBIT “I” Joint Venture Agreement

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EXHIBIT “A”

SCHEDULE OF HOURLY RATES

Fee Structure

The rate of compensation to the Program Manager for each individual performing Services at an
hourly rate is set forth below. The rates set forth shall constitute the Program Manager’s sole
compensation and include adequate amounts to cover the cost of personnel, home and field office
overhead, and profit.

Program Director Mel Butler Jr. $_____209.90 /hourly
Deputy Program Director Brian Albanese $_____175.50_/hourly
Senior Project Manager Ryan Fernandez $_____128.81_/hourly
Senior Project Manager Atiba Nunnally $_____150.98_/hourly
Project Manager Michael Hall $_____137.18_/hourly
Project Manager Lamonte Artis $_____157.50_/hourly
Project Manager Carl Henry $_____116.39_/hourly
Project Engineer Jorge Molina $_____149.85_/hourly
Project Engineer Bianca George $_____135.00_/hourly
Construction Cost Estimating Daniel Castellon & Team $_____200.03_/hourly
Project Controls Manager David Wood $_____207.00_/hourly
Project/Accounting Specialist Rajvee Rathod $_____ 73.13 _/hourly
Procurement Specialist Jacqueline Knight $_____109.40_/hourly
Design (Peer)Reviewer Angel Flores & Team $_____156.38_/hourly
Quality Assurance Manager Eno Aboagye-Atta $_____160.09_/hourly
Administrative Assistant Patti Boston $______74.72_/hourly
Clerical $______63.00_/hourly
Safety Coordinator David Killingsworth $_____139.50_/hourly
Program Scheduler/P6 Natalie DuQuesney $_____179.17 /hourly

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EXHIBIT “B”
PARTIAL WAIVER AND RELEASE OF CLAIM RIGHTS

The undersigned does hereby forever release, waive and discharge any and all claim
rights and claims, and any and all equitable rights and claims for all labor, subcontract work,
equipment, materials and services supplied to the DeKalb County Board of Education through the
date indicated below, excepting only those claims for which the DeKalb County Board of
Education has received, prior to the date indicated below, written notice furnished in strict
compliance with paragraph 6.9 of Article 6 of the Master Agreement for Program Management
Services Between the DeKalb County Board of Education and __________________________
dated _______________________.

This RELEASE and WAIVER shall inure to the benefit of, and may be relied upon by, the
DeKalb County Board of Education.

The undersigned further warrants that all persons employed by the undersigned and all
persons supplying materials or renting equipment, or both, to the undersigned have been paid in
full.

DATED: ______________________ FIRM: _________________________

BY: ___________________________

TITLE: _________________________

STATE OF __________________
COUNTY OF ________________

Subscribed to and sworn before me this ____ day of _____________, 20___.

____________________________
Notary Public

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EXHIBIT “C”
FINAL WAIVER AND RELEASE OF CLAIM RIGHTS

This RELEASE and WAIVER shall inure to the benefit of, and may be relied upon by, the
DeKalb County Board of Education.

The undersigned further warrants that all persons employed by the undersigned and all
persons supplying materials or renting equipment, or both, to the undersigned have been paid in
full.

DATED: ______________________ FIRM: _________________________

BY: ___________________________

TITLE: _________________________

STATE OF __________________
COUNTY OF ________________

Subscribed to and sworn before me this ____ day of _____________, _____.

____________________________
Notary Public

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EXHIBIT “D”
CONTRACTOR AFFIDAVIT

By executing this affidavit, the undersigned Contractor verifies its compliance with
O.C.G.A. 13-10-91, and attests under oath that:

(1) the individual, firm, or corporation (“Contractor”) which is contracting with the
DeKalb County Board of Education has registered with, is authorized to use, uses, and will
continue throughout the contract term to use and participate in, a federal work authorization
program [any of the electronic verification of work authorization programs operated by the
United States Department of Homeland Security or any equivalent federal work authorization
program operated by the United States Department of Homeland Security to verify information
of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA),
P.L. 99-603], in accordance with the applicability provisions and deadlines established in
O.C.G.A. 13-10-91, as amended. As of the effective date of O.C.G.A. 13-10-91, the applicable
federal work authorization program is the “EEV/Basic Pilot Program” operated by the U. S.
Citizenship and Immigration Services Bureau of the U.S. Department of Homeland Security,
in conjunction with the Social Security Administration (SSA).

(2) Contractor’s correct user identification number and date of authorization is set
forth herein below.

(3) Contractor agrees that the Contractor will not employ or contract with any
subcontractor(s) in connection with the physical performance of services pursuant to this
contract with the DeKalb County Board of Education, unless at the time of the contract said
subcontractor:

(a) is registered with and participates in the federal work authorization
program;

(b) provides Contractor with a duly executed, notarized affidavit with the
same affirmations, agreements, and information as contained herein and in
such form as required under applicable law; and

(c) agrees to provide Contractor with notice of receipt and a copy of every sub-
subcontractor Affidavit or other applicable verification procured by subcontractor
at the time of contract with the sub-subcontractor(s) within five (5) business days
after receiving the said Affidavit or verification.

Contractor agrees to maintain records of such compliance and to provide notice of receipt
and a copy of each such subcontractor Affidavit or other permissible verification to the DeKalb
County Board of Education at the time the subcontractor(s) is retained to perform such service or
within five (5) days after receiving the said Affidavit or verification, whichever first occurs.

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(4) Contractor further agrees to and shall provide DeKalb County Board of Education
with copies of all other affidavits or other applicable verification received by Contractor (i.e.: sub-
subcontractor affidavits and all other lower tiered affidavits) within five (5) days of receipt.

__________________________________________ _______________________________
EEV/Basic Pilot Program User Identification Number Date of Authorization

If an applicable Federal work authorization program as described above is used, other than the
EV/Basic Pilot Program, please identify the program.

Company Name / Contractor Name Date

BY: Signature of Authorized Officer or Agent Date

Title of Authorized Officer or Agent of Contractor

Printed Name of Authorized Officer or Agent

SUBSCRIBED AND SWORN
BEFORE ME ON THIS THE
______ DAY OF_____________________, 20____

Notary Public
My Commission Expires:

35
EXHIBIT “E”
SUBCONTRACTOR AFFIDAVIT

By executing this affidavit, the undersigned subcontractor verifies its
compliance with O.C.G.A. 13-10-91, and attests under oath that:

(1) the undersigned individual, firm or corporation (“Subcontractor”) is engaged in
the physical performance of services under a contract with
_________________________________ (name of Contractor), which has a contract with the
DeKalb County Board of Education.

(2) Subcontractor has registered with, is authorized to use, uses, and will continue
throughout the contract term to use and participate in, a federal work authorization program [any
of the electronic verification of work authorization programs operated by the United States
Department of Homeland Security or any equivalent federal work authorization program operated
by the United States Department of Homeland Security to verify information of newly hired
employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), P.L. 99-603],
in accordance with the applicability provisions and deadlines established in O.C.G.A. 13-10-
91. As of the effective date of O.C.G.A. 13-10-91, the applicable federal work authorization
program is the “EEV/Basic Pilot Program” operated by the U. S. Citizenship and Immigration
Services Bureau of the U.S. Department of Homeland Security, in conjunction with the Social
Security Administration (SSA).

(3) Subcontractor’s correct user identification number and date of authorization is set
forth herein below.

(4) Subcontractor agrees that the Subcontractor will not employ or contract with any sub-
subcontractor(s) in connection with the physical performance of services pursuant to this
subcontract or the contract with the DeKalb County Board of Education, unless said sub-
subcontractor:

(a) is registered with and participates in the federal work authorization
program;

(b) provides Subcontractor with a duly executed, notarized affidavit
with the same affirmations, agreements, and information as contained herein
and in such form as required under applicable law; and

(c) agrees to provide Subcontractor with notice of receipt and a copy of
every sub-subcontractor Affidavit or other permissible verification procured by sub-
subcontractor at the time the sub-subcontractor(s) is retained to perform such
service or within five (5) days after receiving the said Affidavit or verification,
whichever first occurs.

36
Subcontractor agrees to maintain records of such compliance and to provide notice of receipt
and a copy of each such sub-subcontractor Affidavit or other applicable verification to the
Contractor at the time the sub-subcontractor(s) is retained to perform such service or within five
(5) days after receiving the said Affidavit or verification, whichever first occurs.

EEV/Basic Pilot Program User Identification Number Date of Authorization

If an applicable Federal work authorization program as described above is used, other than the
EEV/Basic Pilot Program, please identify the program.

BY: Authorized Officer or Agent Date

_________________________________________
(Subcontractor Name)

Title of Authorized Officer or Agent of Subcontractor

Printed Name of Authorized Officer or Agent

SUBSCRIBED AND SWORN
BEFORE ME ON THIS THE
_____ DAY OF _____________________, 20____

Notary Public
My Commission Expires:

37
EXHIBIT “F”
LIST OF PROPOSAL DOCUMENTS FOR THE PROJECT

Addendum No. 1 Dated March 16, 2022
Attachments:

A. Program Management Services
Mandatory Pre-Proposal Conference Minutes (2 Pages)

B. Program Management Services
Mandatory Pre-Proposal Conference Sign-In Sheet (3) Pages)

Addendum No. 2 March 29, 2022
Attachments:

A. Program Management Services
Revised RFP 22-752-025 (27 Pages)

B. Program Management Services
Revised Attachment A-Program Manager Checklist and Certification (2 pages)

C. Program Management Services
Revised Appendix A-Owner’s Criteria and Narrative Scope (6 Pages)

D. Program Management Services
Revised Appendix E-Master Agreement for Program Management Services (37 Pages)

E. Program Management Services
Revised Exhibit B-Proposed E-SPLOST VI Project List (1 Page)

F. Program Management Services
RFC No. 1 (3 pages)

38
EXHIBIT G
Owner’s Criteria and Narrative Scope of Work

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EXHIBIT H
Contractor’s Submittal

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EXHIBIT “I”
JOINT VENTURE AGREEMENT

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Agenda Item