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21 <br /> Orange County, NC I CONSTRUCTION MANAGER AT RISK CONTRACT I CONFIDENTIAL DRAFT <br /> shall make payment only on a duly certified Application for Payment. The Project Designer is not <br /> responsible for the accuracy of the CMAR's final accounting and issuance of a Certificate for Payment shall <br /> not constitute approval of construction means, methods, or safety precautions. <br /> 17.2.2 Withholding Certification. The Project Designer may withhold certification, in whole or in part, to <br /> protect the Owner if, in the Project Designer's opinion, it cannot make the representations required by <br /> Section 17.2.1 due to: defective Work not remedied;third-party claims or liens;failure of the CMAR to make <br /> payments to Subcontractors; reasonable evidence the Work cannot be completed for the unpaid GMP <br /> balance; damage to the Owner or another contractor; or repeated failure to perform in accordance with the <br /> Contract Documents. When the reasons for withholding are removed, certification shall be made promptly <br /> for amounts previously withheld. <br /> 17.3 Payment Timeline. Pursuant to N.C. Gen. Stat. § 143-134.1, the Owner shall make payment within <br /> forty-five (45)days of the later of: (a)receipt of a properly submitted and complete Application for Payment; <br /> or (b) the last day of the pay period. Interest shall accrue on late payments at twelve percent (12%) per <br /> annum from the due date. <br /> 17.4 Retainage. The Owner shall retain five percent(5%)of each progress payment attributable to Cost of <br /> the Work(subcontract costs). Upon fifty percent(50%)satisfactory completion of the Work,the Owner may, <br /> in its discretion, reduce or eliminate retainage on subsequent payments. No retainage shall be held on the <br /> CMAR Fee, General Conditions, General Requirements, insurance, or bonds. The CMAR shall withhold <br /> retainage from Subcontractors in amounts not exceeding the retainage withheld by the Owner on account <br /> of that Subcontractor's work. <br /> 17.5 Withholding of Payment. The Owner may withhold payment, in whole or in part, for: defective Work <br /> not remedied; third-party claims or liens;failure to pay Subcontractors; reasonable doubt that the Work can <br /> be completed within the GMP; damage to the Owner or another contractor; reasonable evidence the Work <br /> will not be completed within Contract Time;failure to provide required documentation; non-compliance with <br /> MWBE/DBE requirements; or any other material breach of this Contract. <br /> 17.6 Open-Book Audits. The Owner may conduct open-book audits of the CMAR's General Conditions <br /> costs, CMAR-GMP Contingency expenditures, and Cost of the Work at any time during the Project. The <br /> CMAR shall provide access to all relevant cost records within five (5)business days of the Owner's request. <br /> Prior to final payment, the Owner may conduct a final audit of all Project expenditures. Any overpayments <br /> identified shall be reimbursed by the CMAR. Audit rights do not extend to established lump sum amounts, <br /> unit rates, or fixed rates approved in advance. <br /> 17.7 Final Payment. Final payment shall be made within forty-five(45)days after Final Completion, receipt <br /> of all required closeout documentation, the Owner's final audit, and confirmation of the Shared Savings <br /> calculation. Acceptance of final payment constitutes a waiver of all claims by the CMAR except those <br /> previously made in writing and remaining unsettled including but not limited to, claims arising from unsettled <br /> liens or claims against CMAR, faulty work or materials appearing after final payment, CMAR's failure to <br /> perform the Work in accordance with drawings and specifications appearing after the final payment, and as <br /> conditioned in the performance bond and payment bond. <br /> 17.8 Final Payment Affidavit. As a condition of final payment, the CMAR shall provide a notarized affidavit <br /> that all payments for materials, services, and subcontracted Work have been satisfied and that no claims <br /> or liens exist in connection with this Contract. <br /> ARTICLE 18: CHANGES IN THE WORK <br /> 18.1 The Owner reserves the right to order changes in the Work without invalidating this Contract. No <br /> changes shall be performed without written authorization from the Owner. Work performed without written <br /> authorization shall be at the CMAR's sole risk and expense. <br /> 18.2 Change Order Process. Upon receipt of a direction to change the Work, the CMAR shall submit a <br /> Change Order proposal within ten (10) working days (or within five (5) working days provide written <br /> justification for additional time). The proposal shall be itemized separately by labor and materials for each <br /> Page 18 of 35 <br />