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28 <br /> Orange County, NC I CONSTRUCTION MANAGER AT RISK CONTRACT I CONFIDENTIAL DRAFT <br /> 26.3 Investigation. Upon receipt of notice, the Project Designer shall promptly investigate the reported <br /> condition and, if the Project Designer confirms that conditions differ materially and cause an increase or <br /> decrease in the CMAR's cost of, or time required for, performance, the Project Designer shall recommend <br /> an equitable adjustment in the GMP or Contract Time, or both. The Project Designer shall complete its <br /> investigation and notify the parties of findings in writing within fourteen (14) days of the CMAR's notice. If <br /> additional time is required for testing or investigation, the Project Designer shall so advise within the <br /> fourteen (14)day period. <br /> 26.4 Equitable Adjustment. If the investigation confirms a qualifying concealed condition, the parties shall <br /> negotiate in good faith an equitable adjustment to the GMP and Contract Time by Change Order. The <br /> equitable adjustment shall be based on actual, documented additional costs and time, without mark-up <br /> beyond the rates established in the Contract Documents. If the parties cannot agree within thirty (30)days <br /> of the Project Designer's findings, either party may proceed under Article 23. <br /> 26.5 No Qualifying Condition. If the Project Designer determines that the conditions at the site are not <br /> materially different from those indicated in the Contract Documents and that no change in the terms of the <br /> Contract is justified, the Project Designer shall promptly notify the Owner and CMAR in writing, stating the <br /> reasons. Either party may dispute this determination under Article 23. The CMAR shall not proceed to <br /> disturb the condition without either written authorization or direction from the Project Designer. <br /> 26.6 Continuing Obligation.The CMAR shall include in all subcontracts provisions requiring Subcontractors <br /> to notify the CMAR promptly of any concealed conditions they encounter, and the CMAR shall relay any <br /> such notice to the Owner and Project Designer in accordance with this Article. The CMAR shall be <br /> responsible for its Subcontractors' compliance with this notice obligation. <br /> 26.7 CMAR-GMP Contingency. To the extent a concealed condition arises from a design omission that a <br /> prudent CMAR should have identified during Phase 1 constructability review, the cost of addressing it shall <br /> first be applied against the CMAR-GMP Contingency before any claim for equitable adjustment is made. <br /> ARTICLE 27: PARTIAL OCCUPANCY AND USE <br /> 27.1 Owner's Right to Partial Occupancy. The Owner may occupy or use any completed or partially <br /> completed portion of the Work at any stage, provided that: (a) such occupancy or use is authorized by <br /> public authorities having jurisdiction; (b)the Owner and CMAR have agreed in writing on the responsibilities <br /> for security, maintenance, heat, utilities, insurance, and risk of damage to the Work in the occupied portion; <br /> and (c)the CMAR's surety has consented in writing where required. <br /> 27.2 CMAR's Notice of Readiness.When the CMAR considers a portion of the Work substantially complete <br /> and ready for partial occupancy, the CMAR shall submit to the Project Designer and Owner: (a) a written <br /> request for partial occupancy inspection; (b) a certification that the portion is fit for its intended purpose; <br /> and (c) a preliminary list of items to be completed in the occupied portion. <br /> 27.3 Joint Inspection. Immediately prior to any partial occupancy or use, the Owner, CMAR, and Project <br /> Designer shall jointly inspect the area to be occupied to determine and record its condition. The inspection <br /> report shall be signed by all parties and shall identify: the specific area being occupied; the condition of the <br /> Work; any items requiring completion; and responsibilities for maintenance and utilities during the period of <br /> partial occupancy. <br /> 27.4 Insurance Consent. Partial occupancy shall not commence until the insurance companies providing <br /> Builder's Risk and other property insurance have consented in writing to such partial occupancy by <br /> endorsement or otherwise. The CMAR shall coordinate with its insurers to obtain such consent promptly <br /> after the Owner requests partial occupancy. Failure to obtain timely insurance consent is not a basis for the <br /> Owner to delay occupancy if such failure is caused by the CMAR's delay in requesting consent. <br /> 27.5 Certificate of Partial Substantial Completion. The Project Designer may issue a Certificate of <br /> Substantial Completion for the occupied portion, establishing: the date of partial Substantial Completion; <br /> the warranty commencement date for that portion; the punch list for the occupied portion; the deadline for <br /> completing punch list items; and the responsibilities of the Owner and CMAR for the occupied portion. <br /> Page 25 of 35 <br />