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13 <br /> Orange County, NC I CONSTRUCTION MANAGER AT RISK CONTRACT I CONFIDENTIAL DRAFT <br /> Upon Final Completion, if the total of the actual Cost of the Work plus the CMAR Fee plus the actual General <br /> Conditions is less than the final approved GMP (excluding the Owner's Contingency and the Early Completion <br /> Bonus Fund, if any), the resulting savings shall be allocated as follows: <br /> (a) Seventy-five percent (75%) of Shared Savings to the Owner; <br /> (b) Twenty-five percent(25%) of Shared Savings to the CMAR. <br /> (c) The CMAR's Shared Savings payment shall be included in the final payment and shall be subject to <br /> the following conditions: <br /> (d) The CMAR has achieved Substantial Completion on or before the required date, as extended by duly <br /> executed Change Order; <br /> (e) No unresolved warranty claims or warranty defaults exist at the time of final payment; <br /> (f) No open Change Order disputes or outstanding claims by the Owner against the CMAR exist at the <br /> time of final payment; <br /> (g) The CMAR has satisfied all closeout requirements of Article 16; <br /> (h) The Owner's final audit confirms the actual cost figures supporting the savings calculation. <br /> If any of the foregoing conditions are not met at the time of final payment, the Owner shall withhold the CMAR's <br /> Shared Savings share until the conditions are satisfied. If conditions remain unsatisfied for more than one <br /> hundred eighty (180)days after Final Completion, the Owner may apply the CMAR's withheld Shared Savings <br /> share to outstanding claims or warranty costs. <br /> Shared Savings shall not exceed 5 % of the final GMP. Any savings in excess of this cap shall be retained <br /> solely by the Owner. <br /> The unused CMAR-GMP Contingency is not subject to the Shared Savings split. Upon Final Completion, thirty <br /> percent(30%)of unused CMAR-GMP Contingency shall be paid to the CMAR and seventy percent(70%)shall <br /> be retained by the Owner, provided the CMAR has satisfied all conditions in this Section. <br /> 7.4 Early Completion Bonus <br /> It is the CMAR's responsibility to meet the required construction completion dates, as extended by the Owner <br /> in accordance with the Contract. As an inducement to the CMAR to meet the required substantial completion <br /> date for the Project, the Owner will include in the Total Construction Budget an Early Completion Bonus Fund <br /> amount of one percent (1.0%)of the actual Project GMP, which shall be payable to the CMAR as an Early <br /> Completion Bonus if the Project is completed prior to the substantial completion date, as extended in <br /> accordance with this Contract and further provided that the Project is completed under budget and so long as <br /> including payment of the Early Completion Bonus Fund does not result in an amount that exceeds the Total <br /> Construction Budget. This Early Completion Bonus, if earned, will be included in the final payment to the <br /> CMAR. If the CMAR decides that any action must be taken in order to meet its contractual responsibility to <br /> complete the Project on time or to mitigate liquidated damages payable to the Owner, including for example <br /> and without limitation forcing Subcontractors to work overtime, increase labor forces or staffing, or work out of <br /> sequence, then the CMAR may, upon written notice to the Owner, waive its right to the Early Completion <br /> Bonus. Upon notice that the CMAR waives its right to the Early Completion Bonus, the Owner shall make the <br /> funds budgeted for the Early Completion Bonus available to the CMAR to pay the actual costs of such action <br /> as a Cost of the Work. The CMAR will enforce all rights and remedies that it has against any and all <br /> Subcontractors that are responsible for the failure to complete the Project within the schedule, and reimburse <br /> the Owner for the sums contributed under this paragraph to the extent the CMAR can recover those costs <br /> from those Subcontractors. If the Project is not substantially complete by the substantial completion date as <br /> extended, the Early Completion Bonus shall be deemed automatically waived without further notice, and the <br /> funds shall be made available to take action to maintain the Project on schedule. Once the funds budgeted for <br /> the Early Completion Bonus are exhausted, all costs associated with any action taken to stay within the <br /> completion schedule are the CMAR's responsibility within the GMP. If the CMAR finds that the schedule is <br /> likely to be impacted by an action or inaction on the part of the Owner, the CMAR must review the situation <br /> with the Owner in a timely manner, and if necessary, to obtain a change order amendment for such Work <br /> Page 10 of 35 <br />