HomeMy WebLinkAboutMWH CONSTRUCTORS
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Agreement Between The Owner
And The Construction Manager
MWH Constructors, Inc.
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Augusta, Georgia
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For Construction Management At Risk Services
Pursuant To A Guaranteed Maximum Price In
,Connection With The Project Known As:
James B. Messerly WPCP 2_003 Master Plan
Implementation - Phase I (80130)
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June 7, 2006
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Augusta CMAR Agreement 05-10-06 MESSERLY WPCP
Agreement Between
OWNER and Construction Manaaer At Risk
AGREEMENT
Made this" day of J"U;(\Q.. in the year of Two Thousand and OlD
BETWEEN The OWNER: Augusta, Georgia
And the Construction Manager (hereinafter referred to as the "CM"): MWH Constructors, Inc.
For Construction Management At Risk SeNices pursuant to a Guaranteed Maximum Price in connection with
the Project known as: James 8. Messerly WPCP 2003 Master Plan Implementation - Phase I (80130)
As further described in Article 3:
The OWNER and CM, in consideration of their mutual covenants herein, agree as set forth below:
TABLE OF CONTENTS
Article:
1. Relationship of the Parties. ........................................................................................................3
2. Project .Definition. . ..... ................... .............. ........................................ ...... ............. .....................3
3. Construction Manager's Basic SeNices ....................................................................................3
4. Duration of the Construction Manager's SeNices....................................................................11
5. Changes in the Construction Manager's Basic SeNices and Additional Compensation.........12
6. OWNER's Responsibilities. ................................ ......................... ............................................12
7. Compensation for CM SeNices and Payment. .......................................................................13
8. Insurance and Mutual Indemnity . ............................................................................................18
9. Termination and Suspension . .................................................................................................19
10. Dispute Resolution. ..... ...................................... .......................... ............ ................................20
11. Additional Provisions. ..................................................... .........................................................21
12. Special Guaranteed Maximum Price Provisions. ....................................................................22
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ARTICLE 1
RELATIONSHIP OF THE PARTIES
1.1 OWNER and Construction Manaaer
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The CM and the OWNER shall perform as stated in this Agreement and each accepts the relationship
between them that is established by this Agreement.
1 .1 .1 Standard of Care
The CM covenants with the OWNER to furnish its skill and judgment in constructing this Project with due
care in accordance with applicable federal, state, and local laws and regulations that are in effect on the date
of this Agreement first written above.
1.1.2 OWNER. Prooram Manaaer and Desioner
The OWNER has contracted separately with CH2M HILL, Inc. for Program Management seNices and
Messerly Design Group to provide engineering design for the Project. The Project is defined in Article 2 of
this Agreement.
1.1.3 OWNER and Subcontractors
The CM is to contract directly with such Subcontractors as may be necessary for construction or supply of
the Project. All such contracts shall be issued consistent with the applicable provisions of this Agreement.
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1.2 Relationshio of the CM to the Desioner and Other Proiect Particioants In providing construction
management seNices described in this Agreement, the CM shall endeavor to maintain a working relationship
with the Designer. The Designer is solely responsible for the Project design and shall perform in accordance
with the Designer agreement with the OWNER and nothing in this Agreement shall be construed to mean
that the CM is responsible for the design of the Project or that the CM assumes any of the contractual or
customary duties of the Designer or any other persons or parties not specified by this Agreement.
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1.5 Plant Ooerations CM's seNices will be coordinated in a manner which will not adversely affect the
OWNER's ability to maintain ongoing operations and to minimize interference throughout the course of this
Agreement. OWNER will assist CM in identifying specific operational needs, permitting restraints, Applicable
Law requirements, site conditions, and providing other information applicable to plant operations, and will
cooperate with CM in the implementation of the plans for the sequencing of construction. In the event
operations will be changed in a manner that will interfere with CM's planned performance, the OWNER will
give the CM advanced notice of the change and will work with the CM to minimize the effect on the
construction.
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1 .6 Eaual Oooortunitv Emolover. CM warrants that it is an Equal Opportunity Employer and shall comply
with applicable regulations governing equal employment opportunity. Neither CM nor any of its contractors
shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical
handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational
qualification pursuant to State or Federal law.
ARTICLE 2
PROJECT DEFINITIONS
2.1 Terms used in this Agreement and Contract Documents shall have the meaning as set forth in this
Section, which are applicable to both the singular and plural thereof:
Addenda - Any changes, revisions or clarifications of the Contract Documents which have been duly issued
by OWNER or CM to prospective Bidders prior to the time of opening of Bids.
Agreement- This written instrument between OWNER and CM covering the Work to be performed. Along
with the Exhibits, General Conditions, Supplemental General Conditions and other Contract Documents, they
represent the entire and integrated agreement between the Parties and supersedes prior negotiations,
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representation or agreements, either written or oral.
Amendment- A written amendment of the Contract Documents, signed by OWNER and CM on or after the
Effective Date of the Agreement.
Application for Payment-The form accepted by PROGRAM MANAGER which is to be used by CM in
requesting progress or final payments and which is to include such supporting documentation as reasonably
required by OWNER and/or PROGRAM MANAGER.
AVO - The Augusta Utilities Department acting for and in behalf of the OWNER.
Bid - The offer or proposal of the bidder submitted on the prescribed form setting forth the price(s) for the
Work to be performed.
Bonds - Bid, performance and payment bonds and other instruments of security furnished by CM and its
Surety in accordance with the Contract Documents.
CM or CONSTRUCTION MANAGER - Construction Manager furnishing Construction Management At Risk
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SeNices, MWH Constructors
Change Order - A document recommended for approval by ENGINEER and PROGRAM MANAGER and
then approved by CM and OWNER that authorizes an addition, deletion or revision in the Work, or an
adjustment in the Contract Price or the Contract Time, issued after the Effective Date of the Agreement.
Contract Oocuments - The Agreement and all Drawings, Specifications, Plans, addenda, amendments, other
contract modifications, or other documentation incorporated into any of them, the Cost Estimate used to
develop the GMP; all bid packages (including documentation accompanying the Bid and any post-Bid
documentation submitted prior to the Notice to Proceed); the Schedule; other documents listed in this
Amendment; Certificates of Insurance; Notice to Proceed; modifications and Change Orders issued after
execution of this Amendment. The terms and conditions of the Preconstruction SeNices agreement between
the OWNER andCM are incorporated to the extent necessary to reflect the understanding and intentions of
the parties. The order of precedence of the Contract Documents shall be as follows: the Agreement shall
govern over the General Conditions and the Supplemental Conditions shall govern over the General
Conditions.
CONTRACTOR - Contractor when used in the General Conditions, the Construction Manager (CM) and
refe:rs to MWH Constructors, Inc.
Contract Price - The monies payable by OWNER to CM as stated in the Agreement; the Guaranteed
Maximum Price (GMP).
Contract Time - The number of days or the date stated in the Agreement and any extension provided for
under the Agreement for the completion of the Work.
Cost of the Work - The cost of performing the Work as defined in section 7.1.12 of this Agreement, but not
the items expressly excluded under section 7.1.13 of this Agreement.
County - Richmond County, Georgia, political subdivision of the State of Georgia, the Augusta-Richmond
County Commission, and its authorized designees, agents, or employees.
Day - Either a working day or calendar day as specified in the Agreement. If a calendar day falls on a legal
holiday, that day will be omitted from the computation. Legal Holidays include: New Year's Day, Martin
Luther King Day, Memorial Day, 4th of July, Labor Day, Veterans Day, Thanksgiving Day and the following
Friday, and Christmas Day.
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Oefective - An adjective which, when modifying the word "Work", refers to Work that is unsatisfactory, faulty,
deficient, does not conform to the Contract Documents, or does not meet the requirements of
OWNERS'/PROGRAM MANAGERS' inspection, referenced standard, test or approval required by the
Contract Documents, or which has been damaged prior to PROGRAM MANAGER'S recommendation of final
payment by the CM or any Subcontractor or Supplier for whom the CM is responsible, unless responsibility
for the protection thereof has been previously assumed by OWNER upon Substantial Completion.
ENGINEER or Designer - The design engineer, Messerly Design Group also referred to as
PROFESSIONAL.
Drawings - The drawings which show the character and scope of the Work to be performed and which have
been prepared by ENGINEER and are referred to in the Contract Documents.
Effective Oate of the Agreement - The date indicated in the Agreement on which it becomes effective, but if
no such date is indicated it means the date on which the Agreement is signed by the Mayor of Augusta,
Georgia and notice is given to the CM that the Agreement has been signed.
Field Order-A written order issued by PROGRAM MANAGER that modifies Drawings and Specifications, but
which does not involve a change in the GMP or the Contract Time.
General Conditions - Refers to the Augusta General Conditions attached as Exhibit A.
General Requirements - Refers to Division I of the Construction Specifications.
Guaranteed Maximum Price ("GMP'1- GMP means the total sum of the Cost of Work including the Fixed
Fee, the Fixed Amount for Specified General Conditions work, and any applicable Georgia State Sales Tax.
Laws or Regulations - Laws, rules, regulations, ordinances, codes and/or orders of governmental
instrumentalities having jurisdiction over the Project.
UM/WBE - Means locally owned, minority owner, and Women owned Businesses. Contractors,
subcontractors, material vendors and other construction seNice providers which are local, minority owned, or
women owned. A local contractor, sub-contractor, material vendor or seNice provider is defined as one
having an office in Augusta-Richmond County, Georgia or any county contiguous to Augusta-Richmond
County. Also means disadvantaged/minority business enterprises. Also, SUM/WBE indicates Small Local,
Minority Owned and Women Owned Business.
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Notice of Award - The written notice by OWNER to the CM that upon compliance with the conditions
precedent enumerated therein, within the time specified, OWNER will sign and deliver the Agreement.
Notice to Proceed - A written notice given by OWNER to CM (with a copy to PROGRAM MANAGER) fixing
the date on which the Contract Time will commence to run and on which CM shall start to perform its
obligations under the Contract Documents and Amendments thereto. The OWNER shall issue the Notice to
proceed within 30 days of the Effective Date of this Agreement.
OWNER - Augusta, Georgia
Partial Utilization - Placing a portion of the Work in seNice for the purpose for which it is intended or for a
related purpose before reaching Substantial Completion for all the Work.
Professional- The Engineering firm designated to perform the design seNices for the Work, Messerly Design
Group, also referred to as PROFESSIONAL, ENGINEER or Design Professional.
PROGRAM MANAGER - CH2M HILL, Inc., representative of the OWNER as PROGRAM MANAGER for
the Benchmark 2010 Program and who is authorized to make decisions under this Agreement on behalf of
the OWNER and act as liaison between OWNER and both the ENGINEER and CM for this Work.
Project - The James B. Messerly WPCP 2003 Master Plan Implementation - Phase I (80130).
Project Area - The area within the specified Contract Limits as defined on the Drawings and Contract
Documents where the improvements contemplated herein are to be constructed in whole or in part under this
Agreement.
Project Management Team (PMT) - duly authorized representatives from the OWNER, the ENGINEER, the
PROGRAM MANAGER and the CM.
Resident Project Representative - The authorized representative of PROGRAM MANAGER who is assigned
to the site or any part thereof.
Shop Drawings - All drawings, diagrams, illustrations, schedules and other data which are specifically
prepared by or for CM to illustrate some portion of the Work and all illustrations, brochures, standard
schedules, performance charts, instructions, diagrams and other information prepared by a Supplier and
submitted by CM to illustrate material or equipment for some portion of the Work.
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Specifications - Those portions of the Contract Documents consisting of written technical descriptions of
materials, equipment, construction systems, standards and workmanship as applied to the Work and certain
administrative details applicable thereto.
Subcontractor - An individual, firm or corporation having a direct contract with CM for the performance of a
part of the Work.
Substantial Completion-The Work (or a specified part thereof) has progressed to the point where, in the
opinion of PROFESSIONAL as evidenced by PROFESSIONAL's definitive certificate of Substantial
Completion, it is sufficiently complete, in accordance with the Contract Documents, so that the Work (or
specified part) can be used for the purposes for which it is intended, or if there be no such certificate issued,
when final payment is due in accordance with paragraph 14.13 of the General Conditions. The terms
"substantially complete" and "substantially completed" as applied to any Work refer to Substantial
Completion thereof.
Supplemental General Conditions" Part of the Contract Documents amending and supplementing the
General Conditions.
Supplier - A manufacturer, fabricator, supplier, distributor, material man or vendor furnishing materials,
equipment or supplies to be incorporated into the Work.
Task Order - An addendum to the contract establishing a GMP, contract time and other conditions for a
specific scope of work.
Underground Facilities- All pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels or other
such facilities or attachments, and any encasement containing such facilities which have been installed
underground to furnish any of the following seNices or materials: electricity, gases, steam, liquid petroleum
products, telephone or other communications, cable television, sewage and drainage removal, traffic or other
control systems, or water.
Unit Price Work - Work to be paid for on the basis of unit prices.
Work-The entire completed construction or the various separately identifiable parts thereof required to be
furnished under the Agreement. Work is the result of performing seNices, furnishing labor and furnishing
and incorporating materials and equipment into the construction, and furnishing documents, all as required
by the Contract Documents.
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Work Change Oirective- A written directive to CM, issued by the PROGRAM MANAGER on or after the
Effective Date of the Agreement and signed by OWNER and recommended by PROFESSIONAL, ordering
an addition, deletion or revision in the Work, or responding to differing or unforeseen physical conditions
under which the Work is to be performed as provided in paragraph 4.2 or 4.3 of the General Conditions or to
emergencies under paragraph 6.22 of the General Conditions. A Work Change Directive mayor may not
change the Contract Price or the Contract Time, but is evidence that the OWNER has required the CM to
incorporate the Change into the Work and the parties expect that the change directed or documented by a
Work Change Oirective will be incorporated in a subsequently issued Change Order following negotiations by
the parties as to its effect, if any, on the Contract Price or Contract Time as provided in Article 10 of the
General Conditions.
Written Amendment- A written amendment of the Contract Documents, signed by OWNER and CM' on or
after the Effective Date of the Agreement and normally dealing with the non-engineering or non-technical
rather than strictly Work-related aspects of the Contract Documents. The term "Project" when used in the
Agreement shall mean the total construction of which the Work may be a whole or part of the Project. The
term 'Work" required for the "Project" used in this Agreement shall mean the various parts of total
construction to be performed under this Agreement.
ARTICLE 3
CONSTRUCTION MANAGER'S BASIC SERVICES
3.1 CM Basic SeNices
The CM shall perform the Basic SeNices described herein. It is not required that the Basic SeNices be
performed in the sequence in which they are described.
3.2 Pre-Construction Phase
The CM is currently oerformina the ore-construction seNices set forth in the Pre-Construction SeNices
Aareement dated November 15. 2005. between the OWNER and the CM which is incoroorated by reference
solely to show the context and orevious relationshio between the Parties.
3.3 Construction Phase
3.3.1 Proiect Manaaement
3.3.1.1 Pre-Construction Conference
In connection with the PMT, the CM shall conduct a Pre-Construction Conference during which the CM shall
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review the reporting procedures, site operations and other contractual requirements.
3.3.1.2 Onsite Manaaement and Construction Phase Communication Procedures
The CM shall provide and maintain a management team on the Project site to provide contract administration
and the CM shall assist the PROGRAM MANAGER in establishing and implementing coordination and
communication procedures among the CM, OWNER, Designer, and Subcontractors.
3.3.1.3 Contract Administration Procedures
The CM shall establish and implement procedures for expediting and processing requests for information,
shop drawings, material and equipment sample submittals, Contractor schedule adjustments, change orders,
substitutes, payment requests and the maintenance of logs. The CM shall maintain daily job reports.
3.3.1 .4 Proiect Site Meetinas
Periodically the CM shall conduct meetings at the Project site with each Subcontractor and the CM shall
conduct coordination meetings with major Subcontractors and PMT. The CM shall record, transcribe and
distribute minutes to subcontractors and PMT.
3.3.1.5 Coordination of OWNER Provided Testina and Insoection
Technical inspection and testing provided by OWNER under the direction of PROGRAM MANAGER shall
be coordinated with the CM. The CM shall be provided with a copy of all inspection and testing reports on
the day of the inspection or test or when issued. The CM is not responsible for providing, nor does the CM
control, the actual performance of OWNER provided technical inspection and testing. The CM is performing
a coordination function and is not acting in a manner so as to assume responsibility, in part or in whole, for
all or any part of such inspection and testing.
3.3.1 .6 Review of Reauests for Chanaes to the Contract Time and Price
The CM shall review the contents of a request for changes to the construction contract time or price
submitted by a Subcontractor, assemble information concerning the request and endeavor to determine the
cause of the requests. In instances where the CM's analysis reveals that the request is valid, the CM shall
prepare a detailed report and submit such report to the PROGRAM MANAGER for review. The PROGRAM
MANAGER will make a recommendation to the OWNER regarding the disposition of the request. If the
change might modify this Agreement immediately or in the future the CM shall prepare the necessary change
order documents for signing by the CM and OWNER.
3.3.1 .7 Quality Review
The CM shall establish and implement a program to monitor the quality of construction (a "Quality
Management Plan") that includes pre-construction, construction and start-up/commissioning. This plan will
be reviewed by the OWNER and PROGRAM MANAGER, modified if necessary, and approved by OWNER
before any work begins. The Quality Management Plan will provide an onsite Quality Assurance/Quality
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Control (QA/QC) Manager and staff that is independent of the project staff and is fully empowered to enforce
the objectiyes of the Quality Management Program. The Plan will utilize the Three-Phase Quality Control
System:
Preoaratory Phase: QA/AC onsite Manager will train all subcontractors and site personnel to ensure that
the QC system is fully implemented, understood and in place prior to the beginning of construction.
Initial Phase: QA/QC onsite Manager and subcontractors will meet during the construction phase and at
the start of each definable work item to verify that the controls agreed to during the Preparatory Phase
have been implemented. PROGRAM MANAGER will be notified before conducting the Initial Phase
training session(s) or field inspection(s) to allow scheduling representative(s) of the PMT to be present.
This phase will be repeated for each new work crew or when it is suspect that specified quality standards
are not being met.
Follow-uo Phase: QA/QC onsite Manager will perform daily inspections (scheduled & unscheduled) to
ensure daily onsite clean-up control tests are completed and that all work complies with established
standard & contract and task requirements. The inspections will be recorded on the Daily QC Report
form.
The purpose of the program shall be to guard the OWNER against defects and deficiency in the work of the
Subcontractors. The CM shall transmit to the Subcontractors a notice of nonconforming work and may reject
work when it is the opinion of the CM that the work does not conform to the requirements of the Contract
Documents. The CM shall also provide written response' to PMT comments and observations regarding
quality issues within five (5) working days of CM's receipt of such comments. Except for minor variations as
stated herein, the CM is not authorized as part of this serVice to change, evoke, enlarge, relax, alter, or to
release any requirement of the Contract Documents or to approve or accept any portion of the Work not
performed in accordance with the Contract Documents.
3.3.1 .8 Ooeration and Maintenance Materials
The CM shall receive from the Subcontractors and suppliers of OWNER provided equipment operation and
maintenance manuals, warranties and guarantees for materials and equipment installed in the Project, in
accordance with the Contract Documents.
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3.3.1 .9 Substantial Comoletion
In consultation with the CM, PROGRAM MANAGER and Designer, the OWNER shall determine when the
Project is substantially complete. In consultation with the PMT, the PROGRAM MANAGER and CM shall,
prior to Certificate of Substantial Completion being issued, prepare a list of work ("Punch List") that does not
conform to the Contract Documents. This list shall be attached to the Certificate of Substantial Completion.
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3.3.1 .10 Final Comoletion
In consultation with the CM, PROGRAM MANAGER and Designer, the OWNER shall determine when each
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Task Order is finally completed and, following completion of the Punch List for each Task Order, a Certificate
of Final Completion shall be issued from the OWNER. Following the receipt of payment from the OWNER,
the CM shall make all payments due to Subcontractors. Receipt of payment from the OWNER is a condition
precedent to payment of the Subcontractors.
3.3.2 Time Manaaement
3.3.2.1 Master Schedule
The CM shall monthly adjust and update the Master Schedule in conjunction with each Task Order schedule
and distribute copies to the OWNER and PROGRAM MANAGER. All adjustments to the Master Schedule
shall be made for the benefit of the Project.
3.3.2.2 Contractor's Construction Schedule
The CM shall review each Subcontractor's Construction Schedule for each Task Order and shall verify that
the schedule is prepared in accordance with the requirements of the Contract Documents and that it
establishes completion dates that comply with the requirements of the task Order and Master Schedules.
The CM will manage the project schedule through a continuous schedule review at each weekly construction
meeting where the progress of tasks are reviewed, verified and action plans developed to correct deviations
from the schedule.
3.3.2.3 Construction Schedule Report
The CM shall review the progress of construction of each Subcontractor on a monthly basis, shall evaluate
the percentage complete of each construction activity as indicated in the Construction Schedule for each
Task Order and shall review such percentages with the Subcontractor. This evaluation shall seNe as data
for input to the monthly Construction Schedule report that shall be prepared and distributed to the OWNER
and PROGRAM MANAGER. The report shall indicate the actual progress compared to scheduled progress
and shall be submitted with monthly Application for Payment. The CM shall determine and implement
alternative courses of action that may be necessary to achieve contract compliance.
3.3.2.4 CM Review of Time Extension Reauests
The CM shall, prior to requesting a change order, determine the effect on the Task Order and Master
Schedules of time extensions requested by the Subcontractors.
3.3.2.5 Recovery Schedules
The CM shall require the Subcontractors to prepare and submit a recovery schedule as specified in the
Contract Documents.
3.3.3 Cost Manaaement The CM will submit a monthly Financial Report detailing the status of Project costs
for subcontracts, purchase orders, general condition, fees, contingency usage and allowances spent. This
Financial Report will then compare these costs with baseline estimate of GMP.
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3.3.3.1 Schedule of Values (Each Contract)
The CM shall, in participation with the Subcontractors, determine a Schedule of Values for each of the major
construction contracts. The Schedule of Values shall be the basis for the allocation of the Contract Price for
each Task Order to the construction activities. The CM shall review the contract price allocations and verify
that such allocations are made in accordance with the requirements of the Contract Documents. Progress
Payments to the CM shall be based on the percentage of completion of the scheduled activities in
accordance with the Contract Documents.
3.3.3.2 Chanae Order Control
The CM shall establish and implement a change order control system.
3.3.3.2.1 All proposed OWNER and PROGRAM MANAGER-initiated change orders shall first be described
in detail in writing by the OWNER or PROGRAM MANAGER to the CM in a request for proposal to the CM,
accompanied by technical drawings and specifications prepared by the Designer. In response to the request
for a proposal, the CM shall submit to the PROGRAM MANAGER and OWNER for evaluation detailed
information concerning the costs and time adjustments, if any, necessary to perform the proposed change
order work. The CM shall discuss the proposed change order with the OWNER and PROGRAM MANAGER
and the effect, if any, on the Guaranteed Maximum Price. The CM shall prepare the change order
documents for signature by the CM and OWNER. Upon execution of the change order documents between
the CM and OWNER, the CM shall prepare change order documents for signature by the affected
Subcontractors. The CM shall verify that the Work and any adjustment of time required by approved change
orders has been incorporated into the Construction Schedule for the appropriate Task Order.
3.3.3.2.2 The CM shall review the contents of all Subcontractor requested changes to the contract time or
price, endeavor to determine the effect, if any, on the Guaranteed Maximum Price. The CM shall provide the
PROGRAM MANAGER a copy of each change request, and the CM shall, in its evaluations of the
Subcontractor's request, consider the PROGRAM MANAGERS comments regarding the proposed changes.
The CM shall present its findings to the OWNER regarding the proposed changes and at the OWNER's
direction, shall prepare the change order documents for signature by the CM and OWNER. Upon execution
of the change order documents between the CM and OWNER, the CM shall prepare change order
documents for signature by the affected Subcontractor.
3.3.3.3 Cost Records
In instances where a lump sum or unit price is not determined prior to performing Work described in a
request for proposal as provided in Paragraph 3.3.3.2,1 the CM shall prepare and request from the
Subcontractors records of the cost of payroll, materials and equipment and the amount of payments to
subcontractors incurred by the CM and Subcontractor in performing the Work.
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3.3.3.4 Proaress Payments
In consultation with the PROGRAM MANAGER, the CM shall review the payment applications submitted by
each Subcontractor and determine whether the amount requested reflects the progress of the
Subcontractor's Work. The CM shall make appropriate adjustments to each payment application and shall
prepare and forward to the PROGRAM MANAGER a progress payment application. The application shall
state the total contract price, payments to date, current payment requested, retainage and actual amounts
owed for the current period. Included in this application shall be a certificate of payment that shall be signed
by the CM and delivered to the OWNER. The CM shall make payments that are due to all Subcontractors,
suppliers, and material men within ten (10) days following the receipt of payment for the work from the
OWNER. Receipt by the CM of payment from the OWNER is a condition precedent to payment to a
Subcontractor. In addition, the CM shall keep the Project and the site on which Work is performed free and
clear of all liens and claims from Subcontractors, or suppliers.
3.3.4 Manaaement Information System (MIS) The CM will provide Integrated Project Tracking by providing
a web-based tool that gives the PMT and project management with access to all project documents.
3.3.4.1 Schedule Maintenance Reoorts
Th~ CM shall prepare and distribute schedule maintenance reports during the Construction Phase. The
reports shall compare the actual construction dates to scheduled construction dates of each separate
construction contract, Task Order and to the Master Schedule for the Project. These reports will be submitted
with the Progress Payment Application each month of the Construction Phase.
3.3.4.2 Proiect Cost Reoorts
The CM shall prepare and distribute Project cost reports during the Construction Phase. The reports shall
specify actual Project and construction costs compared to the Project and Construction Budget for each Task
Order. The UM/WBE participation will be clearly defined in a format acceptable to the OWNER. These
reports will be submitted with the Progress Payment Applications each month of the Construction Phase.
3.3.4.3 Proiect and Construction Budaet Revisions
The CM shall make recommendations to the OWNER concerning construction changes that may result in
revisions to the Project and Construction Budget or Guaranteed Maximum Prices.
3.3.4.4 Cash Flow Reoorts
The CM shall prepare and distribute cash flow reports during the Construction Phase. The reports shall
specify actual cash flow as compared to projected cash flow. These reports will be submitted with the
Progress Payment Application each month during the Construction Phase.
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3.3.4.5 Proaress Payment Aoolications
The CM shall prepare and distribute the progress payment application. The application shall state the total
construction contract price, payment to date, current payment requested, retainage and actual amounts
owed this period. A portion of this application shall be a certificate of payment that shall be signed by the CM
and delivered to the PROGRAM MANAGER for use by the OWNER in making payments to the CM.
3.3.4.6 Chanae Order Reoorts
The CM shall periodically prepare and distribute change order reports during the Construction Phase. The
report shall list all OWNER-approved change orders by number, a brief description of the change order work,
the cost established in the change order and percent of completion of the change order work. The report
shall also include similar information for potential change orders of which the CM may be aware.
3.3.4.7 Contractor's Safety Proaram
The CM shall review the safety programs of each Subcontractor and confirm that each Subcontractor has
established safety programs as required by the Contract Documents.
3.3.5 Community Particioation
3.3.5.1 The CM will develop a comprehensive community initiative of CM sponsorship & seNices for
important local community environmental concerns including the Phinizy Swamp Nature Park. Ct0 will
provide construction resources to replace various educational stations throughout Phinizy Swamp Nature
Park.
3.3.5.2 The CM will establish a local, small business and disadvantaged business enterprise program with
the goal of obtaining between 35% and 50% participation including equipment (except process and owner
purchased equipment) and material purchases.
3.3.6 The CM shall coordinate and expedite submittals of information from the Subcontractors throughout
the Project to be used for preparation of record drawings and specifications by the Designer during the Post
Construction Phase. The CM shall maintain a record of the submittals the PROGRAM MANAGER can
review as needed.
3.4 Post Construction Phase
3.4.1 Proiect Manaaement
3.4.1.1 Record Documents
The CM shall coordinate and expedite the final submittals of information from the Subcontractors for
preparation of record drawings and specifications by the Designer, and shall coordinate and expedite the
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transmittal of such record documents to the OWNER.
3.4.1.2 Oraanize and Index Ooerations and Maintenance Materials
Prior to final completion of each Task Order, the CM shall compile manufacturers' operations and
maintenance manuals, warranties and guarantees and bind such documents in an organized manner. This
information shall then be provided to the OWNER.
3.4.2 Time Manaaement
3.4.2.1 Start-uo and Commissionina The CM shall assist the Designer, who shall prepare a Plant Process
Start-up and Commissioning Plan for the Project. The CM shall assist the PMT and the OWNER's plant
operators with the start-up and commissioning of the Project, based on the sequence and completion of the
Task Orders. The CM is not responsible for Plant Process Start-up, Project Commissioning or Performance
Guaranties, but is responsible for individual component Start-up or Commissioning in coordination with the
Plant Start-up and Commissioning Plan scheduling equipment installs, equipment checkout, functional
testing, performance testing, manufacturer training, warranties and confirmation of proper maintenance
procedures. The duties of the CM during Start-up and Commissioning will be set forth in greater detail in the
Project Management Plan to be agreed to by the parties.
3.4.3 Cost Manaaement
3.4.3.1 Chanae Orders
The CM shall continue to provide seNices related to change orders as specified in Paragraph 3.3.3.3.
3.4.4 Manaaement Information System (MIS)
3.4.4.1 Closeout Reports
At the conclusion of the Project, the CM shall prepare final project accounting and closeout reports.
3.4.4.2 MIS Reoorts for Start-uo and Commissionina
The CM shall prepare and distribute reports associated with the Start-up and Commissioning. CM shall also
turn over to the OWNER all software and associated licenses purchased by Project funds. .
3.5 Additional SeNices
3.5.1 If requested by the OWNER, the CM may perform Additional SeNices that are not included in the
Work described in the Contract Documents and shall be compensated based upon the hourly rates listed in
Exhibit E. The CM shall perform Additional SeNices only after the OWNER and CM have executed a written
amendment to this Agreement providing for such seNices.
ARTICLE 4
DURATION OF THE CONSTRUCTION MANAGER'S SERVICES
16
4.1 The duration of the CM's Basic seNices under this Agreement shall correspond to the Project Master
Schedule and the schedule of seNices to be performed under each Task Order.
4.1.1 The commencement date for the CM's Basic SeNices under each Task Order shall be the date on
which the OWNER issues to the CM a written instruction to proceed with such Task Order SeNices.
4.1.2 The CM's Basic Services shall be performed for the periods of time indicated in this Agreement. If
portions of design and construction or different Task Orders occur simultaneously, some of the phase
durations may overlap.
ARTICLE 5
(Intentionally Deleted)
ARTICLE 6
OWNER'S RESPONSIBILITIES
6.1 The PROGRAM MANAGER shall provide to the CM complete information regarding the OWNER's
requirements for the Project.
6.2 The OWNER, PROGRAM MANAGER and DESIGNER shall examine information submitted by the CM
and shall render decisions thereto promptly.
6.3 If the OWNER, PROGRAM MANAGER or DESIGNER obseNes or otherwise becomes aware of any
fault or defect in the Project or nonconformity with the Contract Documents, the PROGRAM MANAGER shall
give prompt written notice thereof to the CM.
6.4 The OWNER, PROGRAM MANAGER and DESIGNER shall furnish required information and approvals
and perform their responsibilities and activities in a timely manner to facilitate orderly progress of the Work in
cooperation with the CM, consistent with this Agreement, and in accordance with the planning and
scheduling requirements and budgetary restraints of the respective Task Orders or requirements of the
Project as determined by the PMT.
6.5 Intentionally Deleted
6.6 The OWNER shall review and if acceptable approve the Project and Construction Budget and any
subsequent revisions as provided in the Pre-Construction Agreement.
6.7 If the OWNER contracts separately with any other parties that will directly impact the CM's SeNices, the
17
Owner shall cause all such agreements to be compatible and consistent with this Agreement. Each of the
agreements shall include waiver of subrogation as required herein.
6.8 At the request of the CM, a copy of interim and final drawings, specifications and Contract Documents in
electronic format shall be furnished to the CM by the OWNER at the OWNER's expense.
6.9 The OWNER shall in a timely manner secure, submit and pay for necessary approvals, easements,
assessments, permits and charges required for the Project construction. The CM shall secure, submit and
pay for the Building Permit and any other necessary construction permits.
6.10 The OWNER shall furnish evidence satisfactory to the CM that sufficient funds are available and
committed for the entire cost of the approved Project. Unless such reasonable evidence is furnished, the CM
is not required to commence its seNices and may, if such evidence is not presented within a reasonable
time, suspend the seNices specified in this Agreement upon fifteen (15) days written notice to the OWNER
and in such event, the CM shall be compensated in the manner provided in Article 9.2.
6.11 The OWNER, its representatives and consultants, including Designers, shall communicate with the CM
through the PROGRAM MANAGER. The OWNER and PROGRAM MANAGER will only communicate with
Subcontractors through the CM.
6.12 Intentionally Deleted
6.13 The OWNER shall designate, in writing, an officer, employee or other authorized representatives to act
in the OWNER's behalf with respect to the Project. This representative shall be available during working
hours and as often as may be required to render decisions and furnish information in a timely manner.
6.14 The OWNER shall make payments to the CM on the basis of the CM's payment applications that are
certified by the CM and on the basis of the CM's invoices for its seNices performed and have been approved
by the PROGRAM MANAGER. .
ARTICLE 7
COMPENSATION FOR CM SERVICES AND PAYMENT
7.1 Guaranteed Maximum Price
7.1.1 In accordance with the Pre-Construction SeNices Agreement the CM shall propose a Guaranteed
Maximum Price for each Task Order. The Guaranteed Maximum Prices shall be documented by the CM as
defined in Article 12 and, once established, the Guaranteed Maximum Prices shall be subject to modification
only as defined in this Agreement.
7.1.2 A proposed Guaranteed Maximum Price for each Task Order (a "GMP Proposal"), which shall be the
18
sum of CM's Fee, plus the Cost of the Work as defined in Section 7.1.12 hereof shall be submitted on the
form attached hereto as Exhibit C and shall include;
7.1.2.1 A list of the drawings and specifications, including all addenda, used as the basis for the Task Order
GMP Proposal;
7.1.2.2 A list of the assumptions and clarifications made byCM in the preparation of the Task Order GMP
Proposal, which list is intended to supplement the information contained in the drawings and specifications;
7.1.2.3 A tabular summary of subcontract and equipment costs used as a basi~ for the GMP.
7.1.2.3 The Scheduled Substantial Completion Date upon which the GMP Proposal is based, to the extent
such date has not already been established, and a schedule upon which the Scheduled Substantial
Completion Date is based;
7.1.2.4 If applicable, a list of Allowances and a statement of their basis, along with, as applicable, a
schedule of Alternate Prices, Unit Prices, and
7.1.2.5 The time limits for acceptance of the GMP Proposal.
7.1.3 Review and Adiustment to Task Order GMP Prooosal. After submission of the Task Order GMP
Proposal, CM OWNER and PROGRAM MANAGER shall meet to discuss and review the Proposal. If
OWNER or PROGRAM MANAGER has any comments regarding the Task Order GMP Proposal, or finds
any inconsistencies or inaccuracies in the information presented, it shall promptly give written notice to CM of
such comments or findings. If appropriate, CM shall, upon receipt of OWNER's notice, make appropriate
adjustments to the Task Order GMP Proposal.
7.1.4 Acceotance of Task Order GMP Prooosal. If OWNER accepts the GMP Proposal, as may be
amended by CM, the Guaranteed Maximum Price and its basis shall be set forth in a Task Order to this
Agreement. Notice-To-Proceed for the GMP Proposal shall be an executed Task Order (see Attachment C:
Sample Task Order).
7.1.5 Failure to Acceotthe Task Order GMP Prooosal. If OWNER rejects the GMP Proposal, or fails to
notify CM in writing within 60 days of approval of the GMP Proposal, the GMP Proposal shall be deemed
withdrawn and of no effect and the CM may suspend all Work. In such event, OWNER and CM shall meet
and confer as to how the Project will proceed, with OWNER having the following options:
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7.1.5.1 OWNER may suggest modifications to the GMP Proposal, whereupon, if such modifications are
accepted in writing by CM, the GMP Proposal shall be resubmitted and the parties shall proceed in
accordance with Section 7.1.4, above;
7.1.5.2 Intentionally Deleted
7.1.5.3 OWNER may terminate this Agreement for convenience in accordance with section 9.1.1 and 9.1.3,
herein.
7.1.5.4 If OWNER fails to exercise any of the above options, CM shall have the right to suspend
performance of Work.
7.1.6 If a Task Order is issued and signed the CM shall become responsible for the means, methods,
sequences, and procedures used in the construction of the Project and shall proceed with the eM's Basic
SeNices.
7.1.7 Construction subcontracts for the Work required for the Project shall be between the CM and
Subcontractors. The CM in cooperation with the OWNER and PROGRAM MANAGER shall request and
receive bids for each contract and shall review in detail with the OWNER and PROGRAM MANAGER before
making an award. Once a consensus is reached the CM will advise the OWNER with respect to award of a
contract to the lowest responsive and responsible bidder.
7.1.8 The CM shall be eligible to perform work on the Project with OWNER's consent.
7.1.9 The Guaranteed Maximum Price is equal to the Cost of the Work and the CM's fee to complete the
project. The cost data shall be directly correlated to the specific design drawings and specifications in
existence at the time the Guaranteed Maximum Price is prepared. The assumptions used in the preparation
of the Guaranteed Maximum Price shall be identified by the CM as part of the Guaranteed Maximum Price
documentation.
7.1.10 The Guaranteed Maximum Price shall include those taxes applicable to the Project that are legally
enacted at the time the Guaranteed Maximum Price is established. Any increase or decrease in taxes that
affect the Guaranteed Maximum Price and that are enacted after the Guaranteed Maximum Price is
submitted shall be incorporated into that price by change order.
7.1.11 The OWNER may change the scope of the Project or a part thereof and the Guaranteed Maximum
Price shall then be adjusted as provided in Paragraph 7.1.3.
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7.1.12 Cost of the Work
The term "Cost of the Work" shall include all amounts paid by the OWNER to the CM for payment to all
Subcontractors, suppliers and equipment lessors; for all general conditions, site seNices, work, material,
labor and equipment supplied to the Project including, but not limited to the following:
7.1 .12.1 Labor Costs.
a. Wages of construction and other workers directly employed by Construction Manager to perform the
construction of the Work at the Project site or, with OWNER's written agreement, at off-site workshops.
b. Wages or salaries of Construction Manager's supeNisory and administrative personnel who are
stationed at the Project site full time or are temporarily assigned to the Project, with OWNER's written
agreement.
c. Wages and salaries of Construction Manager's supeNisory and administrative personnel engaged at
factories, workshops or on the road in expediting the production or transportation of materials or equipment
required for the Work, but only for that portion of their time required for the Work and only with OWNER's
written agreement.
d. The parties hereby agree that the hourly labor and seNice rates agreed to in Exhibit E attached
hereto, shall be used to determine the labor rates to be applied to the Cost of the Work which shall include
the wages or salaries and all labor burden, including all taxes, insurance, contributions, assessments and
benefits required by law and collective bargaining agreements and, for personnel not covered by such
agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and
pensions, provided such markup is to apply only upon those wages and salaries included in the Cost of the
Work under subsections 7.1.2.(1) a through 7.1.2.(1) c, above. These rates shall be increased annually by
the annual percentage increase of the most recent Consumer Price Index for the Southeast region (the
"CPI")
7.1.12.2 Subcontract Costs. Payments owed by Construction Manager to subcontractors in accordance with
the requirements of the applicable written subcontracts, including any insurance and bond premiums
incurred by subcontractors, independent consultants, vendors, and subconsultants.
7.1.12.3 Cost of Materials and Eauioment Incoroorated into the Com Dieted Construction.
a. Costs, including transportation, of materials and equipment incorporated or to be incorporated in the
completed construction.
b. Costs of materials described in subsection 7.1.12.3 a, above, in excess of those actually installed but
required to provide reasonable allowance for waste and for spoilage. Unused excess materials, if any, shall
be handed over to OWNER at the completion of the Work or, at OWNER's option, shall be sold by
Construction Manager; amounts realized, if any, from such sales, shall be credited to OWNER as a
deduction from the Costs of the Work.
21
7.1.12.4 Costs of other materials and eauioment. temoorarv facilities and related items.
a. Costs, including transportation, installation, maintenance, dismantling and removal, of materials,
supplies, temporary facilities (including project field offices, furniture and fixtures), temporary utilities,
machinery, equipment, office and computer equipment, office supplies, software and hand tools not
customarily owned by the construction workers, which are provided by Construction Manager at the Project
site and fully consumed in the performance of the Work; and costs less salvage value on such items if not
fully consumed, whether sold to others or retained by Construction Manager.
b. Costs of all fuel and utility costs incurred in the performance of the Project.
c. Rental charges, at the actual rates charged for temporary facilities, machinery, equipment, and hand
tools not customarily owned by the construction workers, which are provided by Construction Manager at the
Project site, and costs of transportation, installation, minor repairs and replacements, dismantling and
removal thereof.
d.Cost of all safety supplies, including personal protection equipment not customarily owned by the
construction workers, supeNisory or administrative personnel, provided by Construction Manager at the
Project site necessary in the performance of the Work. Cost of site security and emergency seNices.
e. Cost of removal and proper disposal of debris from the Project site and cost for maintenance of
common roadways, storage areas and idle portions of the Project site, including seNices of a site
maintenance contractor. Cost of all on-site and off-site vehicles for Construction Manager's supervisory
personnel, including fuel and maintenance.
f. Costs of telegrams, long distance telephone calls, postage and parcel delivery charges, high speed
internet seNice, websites and telephone seNice at the Project site and reasonable petty cash expenses of
the Project site office.
g. That portion of the reasonable travel and subsistence expenses of Construction Manager's personnel,
assigned to the Project site, incurred while traveling outside of Augusta, Georgia in discharge of duties
connected with the Work, provided all of such expenses and charges shall be subject to the prior written
approval of OWNER.
h. Relocation costs for two senior level staff to be relocated from out of state to the Project.
i. Per Diem expenses for staff assigned to the Project for less than one year.
7.1.12.5 Miscellaneous Costs.
a. Any insurance premium allocations including deductibles for claims that were beyond the reasonable
control of CM. The insurance to be acquired and bonds required by the Agreement or the performance of
the Work is set forth in Exhibit D.
b. Sales, use or similar taxes imposed by a governmental authority which are related to the Work and for
which Construction Manager is liable.
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c. Fees and assessments for the building permit and for other permits, licenses and inspections for which
the CM is required by the Contract Documents to pay.
d. Fees of testing laboratories for tests required by the Contract Documents, except those related to
defective or nonconforming Work for which reimbursement is excluded pursuant to the terms of this Contract.
e. Royalties and license fees paid for the use of a particular design, process or product used in
construction of the Project.
f. Deposits lost for causes other than Construction Manager's fault or negligence.
g. Costs reasonably incurred in repairing or correcting damage or nonconforming Work executed by
Construction Manager, or its subcontractors or suppliers, provided that such damage or nonconforming Work
was beyond the reasonable control of Construction Manager and not caused by (i) the negligence or failure
to fulfill a specific responsibility of Construction Manager to OWNER set forth in the Contract Documents, or
(ii)Construction Manager's foremen, engineers, superintendents or other supeNisory, administrative or
managerial personnel, or (iii) the failure of Construction Manager's personnel to supeNise adequately those
portions of the Work to be performed by Construction Manager's subcontractors or suppliers, and only to the
extent not recoverable by Construction Manager from (i) insurance or bonds, (ii) any of the subcontractors or
suppliers, or (iii) some other appropriate source.
7.1.12.6 Other Costs. Other costs incurred in performance of the Work if and to the extent approved in
ad~ance in writing by OWNER.
7.1.13 The Cost of the Work shall not include the following:.
7.1.13.1 The CM's fee for Basic Services;
7.1.13.2 All professional fees paid by the OWNER to the PROGRAM MANAGER, Designer or other
consultants retained directly by the OWNER;
7.1.13.3 All costs paid directly by the OWNER to contractors or suppliers retained directly by the OWNER
and outside the scope of the Guaranteed Maximum Price;
7.1.13.4 All Additional SeNices costs as defined herein; or
7.1.13.5 All other costs not within the control of the CM or identified as being not within the Guaranteed
Maximum Price.
7.1.13.6 All costs incurred directly by the OWNER in which the OWNER makes direct payment for materials,
equipment or seNices to a party outside of this agreement
7.1.14 The Cost of the Work may be further defined in the documentation required by Paragraph 12.1.2 of
this Agreement. If the requirements of this Paragraph 7.1.2 and the documentation required by Paragraph
12.1.2 differ, then the CM shall identify and explain the difference, but the documentation provided in
accordance with Paragraph 12.1.2 shall be the basis for determining the scope of the Guaranteed Maximum
23
Price.
7.2 Adiustments to the Guaranteed Maximum Price
The CM understands, confirms and agrees that its responsibility hereunder is to construct the Project in
accordance with the drawings and specifications. It is recognized that the Guaranteed Maximum Price may
be determined based upon incomplete design documents and in those instances in which the drawings and
specifications are not complete at the time the Guaranteed Maximum Price is established, the CM shall
exercise reasonable care and judgment to determine the intent of the design and shall calculate the
Guaranteed Maximum Price on the basis of the quality of construction, materials, and finishes that can be
reasonably inferred from the design documents or other specified sources. The CM shall determine unit
prices and the Cost of the Work and shall make those assumptions regarding the project scope and the
quality of the intended construction as may be necessary to fully document the Guaranteed Maximum Price.
The OWNER and CM shall use the documentation specified in Paragraph 12.1.2 in determining whether or
not the scope of the Project or a part thereof has been changed and in determining entitlement to an
adjustment to the Guaranteed Maximum Price. A determination regarding all requests for adjustment to the
Guaranteed Maximum Price shall be made in writing within thirty (30) days from the date of a written request
for an adjustment.
7.2.1 The amount of adjustment to increase or decrease the Guaranteed Maximum Price resulting from a
change in the Project shall be determined in one or more of the following ways:
7.2.1.1 By mutual acceptance of a lump sum, properly itemized and supported by cost data; or
7.2.1.2 By unit prices, if any; or
7.2.4 The PROGRAM MANAGER shall have the authority to issue a Field Order addressing minor changes
in the Project consistent with the intent of the drawings and specifications and not involving an adjustment in
the Guaranteed Maximum Price or change of the construction completion date. Such changes may be
affected by written order only and shall be signed by the OWNER and the CM prior to the work being
performed.
7.3 CM's Cost Plus Fee
The OWNER shall compensate the CM on the basis of the Cost of the Work plus the CM's Fee in
accordance with the terms and conditions of this Agreement as specifically as follows:
7.3.1 Comoensation for Basic SeNices
The CM shall be compensated for performing the Basic SeNices as described in Article 3 as follows:
24
7.3.1.1 A CM Fee to be negotiated per Task Order.
7.3.2 Construction Manaaer's Accountina Records
7.3.2.1 Records for the CM's personnel expenses, consultant's fees and direct expenses pertaining to the
Project shall be maintained on the basis of generally accepted accounting practices and shall be available for
inspection by the OWNER or the OWNER's representative are mutually convenient times for a period of five
years after completion of the CM's Basic SeNices.
7.3.3 Payments
CM shall submit to OWNER on the twentieth (20th) day of each month for approval, CM's Application for
Payment. OWNER shall have ten (10) working days from receipt to review and provide written comment
and/or approve the Progress Payment. CM Applications for Payment shall be detailed by Task Order. If the
OWNER determines the CM is not entitled to all or part of a payment for a Task Order, the OWNER shall
withhold payment by Task Order only. Payments to the CM shall be made monthly, not later than forty-five
(45) days after presentation of the CM's invoice to the OWNER as follows:
7.3.3.1 Payment of the Fixed Fee as indicated in Paragraph 7.3.1.1 shall be based upon the amount of Cost
of the Work completed during the billing period. Payment of personnel expense and the fixed hourly rate for
principals shall be in amounts equal to the actual hours spent during the billing period on the Project and in
accordance with the compensation schedule as set forth in the Attached Exhibit E.
7.3.3.2 Reimbursement for the Cost of the Work shall be in amounts equal to expenditures made during the
billing period and during previous billing periods not yet invoiced;
7.3.3.3 Retainaae OWNER will retain ten percent (10%) of the Cost of the Work for each respective Task
Order, provided, however, that when fifty percent (50%) of the Work per Task Order has been completed by
CM, the CM may request a reduction of the retainage. Provided the OWNER determines that the CM is in
material compliance with its obligations under this Agreement and continues to remain in compliance, the
OWNER shall not retain any additional amounts from CM's subsequent Applications for Payment after the
request.
7.3.3.4 Upon Substantial Completion of the Task Order or, if applicable, any portion of the Work that the
OWNER has the beneficial use of, OWNER may release to CM all or portions of retained amounts relating,
as applicable, to the Task Order or completed portion of the Work.
25
7.3.3.5 Final Payment. CM shall submit its Final Application for Payment by Task Order to OWNER in
accordance with the General Conditions. OWNER shall make payment on CM's properly submitted and
accurate Final Application for Payment within thirty (30) days after OWNER's receipt of the Final Application
for Payment, provided that CM has satisfied the requirements for final payment as defined in the Contract
Documents.
7.3.3.6 Intentionally Deleted
7.3.3.7 Payments due to the CM that are unpaid for more than sixty (60) days from the date of the CM's
invoice shall bear interest at Prime Rate from the due date, compounded monthly.
7.3.4 Comoensation for Additional SeNices
The CM shall be compensated and payments shall be made for performing Additional SeNices in the
amount equal to the value of the work actually preformed.
ARTICLE 8
INSURANCE AND MUTUAL INDEMNITY
8.1 CM's Liability Insurance
8.1.1 The CM shall purchase and maintain the insurance in the amounts set forth in Exhibit D in accordance
with the requirements set forth in the Supplemental General Conditions.
8.1.2 If the OWNER occupies or uses a part or parts of the Project prior to substantial completion thereof,
such occupancy shall not occur until the OWNER obtains property insurance for the structure and until all
insurance companies providing insurance for the Project consent to such occupancy by endorsement to the
insurance policies.
8.2 OWNER's Insurance
The CM shall be named as an additional insured in any insurance policy for the Project that may be obtained
by the OWNER.
8.3 The OWNER shall cause the Designer to indemnify and hold harmless the CM, PROGRAM MANAGER
and OWNER, their employees, agents and representatives to the same extent and in the same manner that
CM has provided indemnification for the OWNER under Paragraph 8.4.
8.4 The OWNER hereby indemnifies and holds harmless the CM and its employees, agents and
26
representatives from and against any and all claims, demands, suits and damages for bodily injury and
property damage for which the OWNER is liable that arise out of or result from breach of this Agreement or
negligent acts or omissions of the OWNER, its employees, agents, representatives, independent contractors,
suppliers, and the Designer.
8.5 The CM shall cause the Subcontractors to indemnify and hold harmless the OWNER, CM, PROGRAM
MANAGER and Designer from and against any and all claims, demands, suits, damages, including
consequential damages and damages resulting from personal injury or property damage, costs, and
expenses and fees that are asserted against the OWNER, CM, PROGRAM MANAGER and the Designer
and that arise out of or result from negligent acts or omissions or the breach of the Construction Subcontract
by the Subcontractor, its employees, agents and representatives in performing the Work.
ARTICLE 9
TERMINATION AND SUSPENSION
9.1 Termination
9.1.1 This Agreement may be terminated by the OWNER for convenience after thirty (30) days written notice
to the CM.
9.1.2 This Agreement may be terminated by either party hereto upon thirty (30) days written notice should
the other party fail substantially to perform in accordance with the terms hereof through no fault of the
terminating party or if the Project in whole or substantial part is stopped for a period of sixty (60) days under
an order of any court or other public authority having jurisdiction or as a result of an act of government.
9.1.3 In the event of termination pursuant to Paragraph 9.1.1, the CM shall be paid its compensation for
seNices performed to the date of termination, the Cost of the Work preformed through the date of
termination and all termination expenses.
9.1.4 In the event of termination pursuant to Paragraph 9.1 .2, the CM shall be paid its compensation for
seNices and the Cost of the Work performed to the date of termination, direct expenses and all termination
expenses. No amount computed as provided in Paragraphs 9.1.2 shall be paid in addition, if the termination
is due to the CM's failure to substantially perform in accordance with the terms of this Agreement.
9.2 Susoension
9.2.1 The OWNER may order, in writing, the CM to suspend all or any part of the CM's seNices for the
Project for the convenience of the OWNER or for work stoppage beyond the control of the OWNER or the
CM. If the performance of all or any part of the seNices for the Project is suspended, an
27
adjustment in the CM's compensation shall be made for the increase, if any, in the cost of the CM's
performance of this Agreement including an adjustment to the GMP caused by such suspension and this
Agreement shall be modified in writing accordingly.
9.2.2 In the event the CM's seNices on the Project are suspended; the OWNER shall reimburse the CM for
all of the costs of its construction site staff, assigned Project home office staff and other costs provided for by
this Agreement for the first thirty (30) days of such suspension. The CM shall reduce the size of such staff
for the remainder of the suspension period as directed by the OWNER and during such period, the OWNER
shall reimburse the CM for all costs of reduced staff. Upon cessation of the suspension, the CM shall restore
the construction site and home office staff to its former size.
9.2.3 Persons assigned to another project during such suspension or period and not available to return to
this Project upon cessation of the suspension shall be replaced. The OWNER shall reimburse the CM for
costs incurred in relocating staff persons returning to the Project or new persons assigned to the Project.
9.2.4 If the Project is suspended by the OWNER for more than three (3) months, the CM shall be paid
compensation for seNices performed prior to receipt of written notice from the OWNER of such suspension,
together with direct expenses then due and all expenses and costs directly resulting from such suspension.
If the Project is resumed after being suspended for more than six (6) month, the CM shall have the option of
requiring that its compensation, including rates and fees, be renegotiated. Subject to the provisions of this
Agreement relating to termination, a delay or suspension of the Project does not void this Agreement.
ARTICLE 10
DISPUTE RESOLUTION
Intentionallv Deleted
ARTICLE 11
ADDITIONAL PROVISIONS
11.1 Confidentiality
11.1 The CM will keep all information designated and marked by the OWNER as "Confidential" and
concerning the Project confidential, except for communications incident to completion of the Project between
the CM, PROGRAM MANAGER, Designer, and Subcontractors, and, their independent professional
engineers, architects and other consultants and subcontractors, and except for publicity approved by the
OWNER and communications in connection with filings with governmental bodies having jurisdiction over the
design or construction of the Project.
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11.2 Limitation and Assianment
11.2.1 The OWNER and the CM each bind itself, its successors, assigns, insurers, and legal representatives
to the terms of this Agreement.
11.2.2 Neither the OWNER nor the CM shall assign or transfer its rights or interest in this Agreement without
the written consent of the other, except that the CM may assign accounts receivable to a commercial bank
for securing loans without approval of the OWNER. However, nothing contained in this paragraph can
prevent the CM from employing contractors or such consultants, associates or subcontractors as the CM
may deem appropriate to assist in performance of the seNices and of the Work hereunder.
11.3 Governina Law
11.3.1 Unless otherwise provided, this Agreement shall be governed by the law of the State where the
Project is located.
11.4 Extent of Aareement
11.4.1 This Agreement represents the entire and integrated agreement between the OWNER and the CM
and supersedes all prior negotiations, representations or agreements, either written or oral. The Pre-
Construction SeNices Agreement is incorporated by reference, solely to provide the context' of this
Agreement. This Agreement may be modified or amended only by written instrument signed by both the
OWNER and the CM. Nothing contained in this Agreement is intended to benefit any third party. The
Subcontractors and Designer are not intended third party beneficiaries of this Agreement.
11.5 Severability
11.5.1 If any provision of this Agreement is held as a matter of law to be unenforceable, the remainder of this
Agreement shall be enforceable without such provision.
11.6 Meanina of Terms
11.6.1 References made in the singular shall include the plural and the masculine shall include the feminine
or neuter.
11.6.2 The meaning of terms used herein shall be consistent with the definitions expressed in Article 2 of this
Agreement.
11. 7 Notices
11.7.1 Whenever any provision of the Contract Documents requires the giving of written notice, it shall be
deemed to have been validly given if delivered in person to the individual or to a member of the firm or to an
29
officer of the corporation for whom it is intended or if delivered or sent by registered or certified mail, postage
prepaid, addressed as follows:
To the OWNER:
Augusta PMT
Attn: Clifford Carey
360 Bay Street, Suite 1 00
Augusta, GA 30901
To the CM:
MWH Constructors
Attn: Michael Donnelly, Esq.
370 Interlocken Blvd., Ste. 300
Broomfield, CO 80021
ARTICLE 12
SPECIAL GUARANTEED MAXIMUM PRICE PROVISIONS
12.1 Guaranteed Maximum Price
12.1.1 Pursuant to this Agreement, the OWNER and the CM desire to set a Guaranteed Maximum Price for
each of the Task Orders necessary to complete the Project.
12.1.2 Documentation of the Guaranteed Maximum Price for each Task Order shall be developed by the CM
from the design drawings and specifications and such other documents as may be specified in the GMP
Proposal.
12.1.3 The form attached hereto as Exhibit C and made a part hereof by reference shall be used to set forth
the Guaranteed Maximum Price for each of the separate Task Orders. The Total Guaranteed Maximum
Price for the entire Project shall be the sum of each Task Order Guaranteed Maximum Price agreed to in a
signed Task Order, as adjusted pursuant to this Agreement and/or said Task Order, plus any other cost
included in the Total Guaranteed Maximum Price pursuant to the terms of this Agreement.
30
12.1.4 The Total Guaranteed Maximum Price for the each Task Order shall include a mutually agreed upon
"Project Contingency". The Project Contingency or "Contingency" is available for CM's exclusive use for
costs that are incurred in performing the Work that are not included in a specific line item or the basis for a
Change Order under the Contract Documents. By way of example, and not as a limitation, such costs
include: trade buy-out differentials; overtime; acceleration; costs in correcting defective, damaged or
nonconforming Work (including litigation costs) when beyond the reasonable control of CM; cost overruns,
unforeseen conditions and Subcontractor defaults. The Contingency is not available to OWNER for any
reason, including changes in scope or any other item for which the CM would be entitled to increase the
GMP under the Contract Documents.
12.1.4.1 CM shall provide OWNER with notice of all anticipated charges against the Contingency. Further,
the CM shall provide to OWNER written documentation of any costs CM incurs and reasonably determines
are chargeable to the Contingency, together with a written explanation of the factual basis for such charge.
OWNER shall review and respond with concurrence or denial within ten (10) working days of receipt of CM's
notice. Any Contingency costs the CM incurs after the Contingency is exhausted, unless provided otherwise
under this Agreement shall be non-reimbursable. The Contingency is separate from and independent of any
contingency amount the OWNER may set aside for cost increases due to changes in the Project scope.
12.1.4.2 The CM shall for budgeting purposes allocate the Contingency amo~nt among the Task Orders in
percentages or amounts determined by the CM. Any Contingency remaining after completion of a Task
Order shall be rolled over and made available for use on any other Task Order and the CM may borrow
Contingency from any Task Order to fund Contingency costs on any other Task Order such that the total of
the Contingency amounts set forth in all Task Orders represent the Project Contingency.
12.1.5 Intentionally Deleted
12.1.6 The documentation shall be prepared by the CM and submitted to the OWNER with the Guaranteed
Maximum Prices. The documentation may include drawings, sketches, specifications, calculations or other
data used to identify the basis of the Guaranteed Maximum Price.
12.1. 7 Intentionally Deleted
12.1.8 Intentionally Deleted
12.1.9 In the event that the cost of any Task Order exceeds the Guaranteed Maximum Price for the Task
Order and the Project Contingency has been exhausted, the CM shall continue to perform at no additional
cost to the OWNER until the Task Order is complete. The CM shall be responsible for paying all costs, in
accordance with the terms of this Agreement that may be necessary to complete the Task Order. The CM
31
may use the Contingency for the Project to fund the cost overruns and any cost overruns that exceed the
amount of the Contingency shall be carried as a negative balance in the Contingency which shall be adjusted
as set forth below.
12.1.10 If any Task Order is completed at a cost which is less than the Guaranteed Maximum Price and any
adjustments therein as may be due pursuant to the terms hereof, then the difference (the "Savings") shall be
added to the balance of the Contingency. If at the end of the Project the Contingency has a negative
balance, the CM shall be responsible for paying all costs associated with such balance
12.2 Price Escalations. The OWNER and Construction Manager acknowledge that due to recent events
construction costs are escalating in an unpredictable manner and agree to share the risk of escalation in the
following manner. If the Cost of the Work for any Task Order or portion of the Work increases more than five
percent (5%) based upon an indices agreeable to OWNER and CM, after the parties agree on a GMP for
such Work, the OWNER shall authorize use of Allowance by the amount of the increase in the Cost of the
Work plus the Construction Management Fee.
12.4 Allowance definition.
For the purposes of the Guaranteed Maximum Price and the Contract Documents, "Allowance" shall mean a
stated requirement of the Contract Documents and or the GMP Proposal whereby a specified sum of money
is incorporated, or allowed, into the Guaranteed Maximum Price in order to sustain the cost of a stipulated
material, piece of equipment, or other cost of the construction work. Allowances are to cover "known" but
unquantifiable items covered in the Guaranteed Maximum Price as provided herein or the GMP Proposal.
The payment of an Allowance must be approved by the OWNER and for the OWNER's sole and exclusive
use. Any payment exceeding the original specified sum of money stipulated for that Allowance shall be the
responsibility of the OWNER, who will execute a Change Order to Guaranteed Maximum Price equal to
such excess payment.
Article 13
Additional Conditions
13.1 The CM further represents and acknowledges that the GMP has been developed with full consideration
of all requirements to allow the OWNER to maintain the existing J. B. Messerly WPCP in full operation at all
times during the construction process including close coordination with the OWNERs staff and being
prepared to make scheduled activity adjustments when required to allow uninterrupted operation of the water
treatment plant under normal operating conditions.
13.2 Performance and Payment Bond
32
Upon execution of this agreement, the CM shall deliver to the OWNER a performance and payment bond for
the full GMP in the form usually used by the OWNER.
13.3 Limitation Of Liability
The OWNER in recognition of the amount of the CM's fee, the relative risks and benefits of the Project to
both the OWNER and the CM, the parties agree to allocate any liabilities and unforeseen risks assumed by
the CM under the terms of this Agreement or by operation of law, including but not limited to: injury to
persons or property, Force Majure, Defective Work, Cost Overruns, Indemnification and Delays as follows:
(1) to the fullest extent of permitted by law, the OWNER agrees to limit the liability of the CM and its affiliated
companies, directors, officers, employees, agents, and representatives to the OWNER and anyone claiming
by or through the OWNER, for any and all claims, losses, costs or damages, including attorneys' fees and
costs and expert- witness fees and costs of any nature whatsoever or claims expenses resulting from or in
any way related to the Project or this Agreement from any cause to the amount of the actual direct damages
(excluding any special or consequential damages) incurred by the OWNER or the CM's fee earned on the
Task Order out of which the claim arose, whichever is less. This limitation shall apply regardless of the cause
of action or legal theory pled or asserted. and OWNER hereby irrevocably waives and releases CM and its
affiliated companies, directors, officers, employees, agents, and representatives from all liability in excess
thereof.
13.4 Exhibits.
The following Exhibits attached to this Agreement are hereby incorporated by reference and made part of
this Agreement:
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
General Conditions and Supplemental General Conditions
List of Task Orders
Sample Task Order
Project Insurance Rates and Requirements
Compensation Schedule
This Agreement is executed the day and year first written above.
OWNER:
Title:
33
CONSTRUCTION MANAGEMENT AT RISK CONTRACT
James B. Messerly WPCP 2003 Master Plan Implementation - Phase 1(80130)
TASK ORDER AGREEMENT NO.1
This Task Order Agreement No. -1.., ("Task Order") is made pursuant to and is part of the
Construction Management at Risk Contrac between the City of Augusta (the "Owner"), and MWH
Constructors, Inc., ("MWH"), dated (p, 2006 for the James B. Messerly WPCP Master Plan
Implementation Project (the "Contract" .
RECITALS
A. In accordance with the Contract, MWH is to provide to the Owner certain Construction
Management (CM) services on a task order basis with a separate scope of work, time for performance and
price to be established for each task order; and,
B. As contemplated by the parties, individual task orders are to be governed and developed
in accordance with the terms and conditions of the Contract and developed Contract Documents, subject to
approval by the Owner; and,
C. The purpose of this Task Order is to establish the time for performance, price, and to
provide Owner's authorization to proceed with the scope of work identified herein.
D. Work under this Task Order is performed under and as part of the Contract.
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. SCOPE OF WORK
The Scope of Work for this Task Order is identified in Attachment A, based uponMWH's pre-
construction phase services prepared under a separate contract. Any changes to the Scope of Work are
subject to the changes clause of the Contract, any developed Contract Documents, and any other applicable
provisions of the Contract.
2. TASK ORDER PRICE
Owner shall compensate MWH for the labor, materials and services for the scope of work under
this Task Order in accordance with the terms and conditions of the Contract based on the cost of work plus
fee. The Guaranteed Maximum Price ("GMP") for this Task Order is $3,543,096.00 based upon the the
Scope of Work in Attachment A and the Schedule in the GMP Proposal and established in accordance with
the provisions of the Contract.
3. SCHEDULE AND COMPLETION
The schedule for the work is the attached, and shall be in accordance with the anticipated date for
Substantial Completion for the entire work outlined in the attached, and as may be changed or amended
from time to time by the Parties. The parties shall use their best efforts to coordinate concurrent or
conflicting Task Order activities associated with this and other Task Orders, ongoing operational
obligations of the Owner; or other matters which might impact or otherwise interfere with the schedule for
this Task Order or the anticipated date for Substantial Completion of the Project.
Work under this Task Order shall commence within five (5) days ofMWH's receipt of Owner's
Notice to Proceed, unless otherwise agreed in writing by.the parties.
4. PAYMENT
MWH will be paid under this Task Order in accordance with the Contract.
5. INTEGRATION
It is the intent ofthe parties that this Task Order, and applicable contract documents, schedules,
drawings, or other related documentation or Work developed in conjunction with this Task Order which
would reasonably be part of the overall Contract Documents for the Project shall be deemed to be
integrated into the Contract.
6. OTHER PROVISIONS
Other provisions, if any are as follows: N/ A
In executing this Task Order, the undersigned representatives on behalf of the Owner and MWH
each individually represent that they have the necessary authority and approval to execute this Task Order,
and perform the services described herein.
-II-t
Dated this th~ day of ~
2006.
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Jt Ac.',",,,~~I<U'1rtmt A - The Scope of Work
'The Guaranteed Maximum Price ("GMP") PROPOSAL"
(name aJ1 addres1
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MWH: MWH Constructors, Inc.
370 Interlocken Blvd. Suite 300
Be~old';VC~L
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(Printed Name)
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OWNER: Augusta, Georgia
530 Greene Street
Augusta, Georgia 30911
v.F'.
(Title)
Date:
6.
00. O~
2
MW Constructors
Todd R. Larson, P.E.
Vice President
303-261-6014
May 16,2006
Augusta Utilities Administration
360 Bay Street, Suite 180
Augusta, Oeorgia 3090 1
Attn: Mr. Clifford Carey
RE: J.B. Messerly WPCP 2003 Master Plan Implementation - Task 12 Guaranteed
Maximum Price for Construction Task Order #1
Dear Clifford:
In accordance with Task 12 of the Preconstruction Services Agreement, we are pleased to
submit our Guaranteed Maximum Price proposal for Construction Task Order #1 "Early
Construction Work". The GMP for this task order is Three Million Five Hundred Forty
Three Thousand Ninety-six Dollars and No Cents ($ 3,543,096.00).
Our proposal breakdown follows:
Construction Cost of Work
Work Packages
MWH General Conditions including job setup
Bonds and Insurance
Cost of Work contingency
Subtotal Construction Cost of Work
$2,146,439.00
$ 350,302.00
$ 81,809.00
$ 95,958.00
$2,674,508.00
CM Fixed Fee
G&A @ 4.0% of Cost of Work
Profit @ 3.5% of Cost of Work
Subtotal CM Fixed Fee
$ 106,980.00
$ 93,608.00
$ 200,588.00
MWH CM Labor
Subtotal Guaranteed Maximum Price
$ 441.670.00
$3,316,766.00
Allowances
File: 16May2006letter to AUD - TO#1 GMP proposal Rev3
Mr. Clifford Carey
May 16, 2006
Page 2
Well point dewatering (Pkg S-07)
Well point dewatering (Pkg S-02)
Subtotal Allowances
$ 161,845.00
$ 64.485.00
$ 226,300.00
$ 3,543,096.00
TOTAL Guaranteed Maximum Price
Clarifications:
1.) The GMP is based upon the apparent low bids as indicated below:
SOl Demolition Work Vastec
S02 Site Preparation & Storm Drain Contract Management
S03 Temp Site Facilities Contract Management
S04 Phinzy Swamp Road Contract Management
S06 Fencing Vastec
S07 Mechanical ADMI
S08 Temp Electrical Vastec
P20 Grit Equipment Eutek
All subcontractors appear to qualify as MBE/DBE business and would represent 100%
participation in our subcontracted work efforts.
2.) The subcontractor bid for work package S-02 includes 2 acres of topsoil stripping and
stockpiling which should be included in the total cost of that work. We have adjusted
the bid amount upward by $32,400 for a revised cost of work = $339,655.00.
3.) The contingency has been adjusted to $95,958.00 based on agreed percentages in our
telephone conversation this morning. The contingency applies to the entire task order
and there is no intent for this to be a line item contingency.
4.) The bond/insurance fees are based on quotations from our insurers and surety. The
surety and insurance companies require bond/insurance fees to be based upon total
contract, not just the cost of work. Therefore, pricing for these items are based upon the
total fee and then marked up as part of the cost of work.
5.) An allowance for dewatering on work package S-07 (20-inch force main) in the amount
of $161,742.00 has been added. This includes subcontractor bid price plus 7.5%
markup and bond/insurance fee. Adjustments to our bond and insurance costs would be
required in the event we were to be directed by the Owner to do this work.
6.) An allowance for dewatering on work package S-02(storm sewer) in the amount of
$64,485.00 has been added. This includes subcontractor bid price plus 7.5% markup
File: 16May20061etter to AVO - TO#1 GMP proposal Rev3
Mr. Clifford Carey
May 16, 2006
Page 3
and bond/insurance fee. Adjustments to our bond and insurance costs would be
required in the event we were to be directed by the Owner to do this work.
7.) Additional exclusions/clarifications have been noted in the Attachment A Scope of
Services document.
8.) A clarification has been added to Attachment A Scope of Services to address QAC and
Safety management in Task Order # 1.
We believe the proposal meets the requirements of our agreement and look forward to your
approval of the GMP so we may move forward with award and beginning of construction.
Please make appropriate distribution within the Owner's group and feel free to call if you
have any questions.
Sincerely,
dIRe--
Todd R. Larson, P.E.
Vice President
TRL
Enclosures:
GMP Proposal Volume 1 Revised May 12,2006
cc: Richard Lewis
Mike Holt
Blair Lavoie
Henry West
File: 16May20061etter to AUD - TO#1 GMP Proposal Rev3
ATTACHMENT A
Scope of Services,
J .B. Messerly WPCP Improvements
Task Order No.1 - Early Construction Work
1.0 GENERAL
Introduction
This scope of work generally defines the effort associated with early start construction of certain
wastewater treatment facility expansion and improvements projects to serve the Augusta James
B. Messerly WPCP. Preconstruction Services are included in a separate scope of work under
separate contract. Task Order No. 1 early start Work items have been selected to meet the
consent order date(s) for Spirit Creek and to allow potential improvement to the overall project
schedule. This scope of work is based upon 90% Review Submittal Drawings and Specifications
dated September and October 2005. Components of the Task Order No. 1 early start work will
include:
1. Prepare aerial photograph and videotaping of site existing conditions in accordance with
Section 01380 of the 90% specifications. This photography and videotaping will document
the condition of the project site prior to starting any work. Aerial photograph will be updated
monthly (for up to twelve consecutive months) to document progress of work, and shall be
submitted with monthly pay applications. Further photographic and video documentation will
be included in a future task order.
2. Demolish existing circular structure for grit facility. Disposal of demolition materials shall be
offsite. Reference Sheet C-4 of the 90% Drawings.
3. Construct all-weather access road to Phinizy Swamp area as shown on Sheet C-6 of the
Drawings. All-weather road shall be graded to slope and drain to south toward existing
drainage ditch running parallel to alignment of road. Silt fence or other acceptable stormwater
pollution prevention measures shall be installed at north top of existing ditch prior to
disturbing any soil. Access road shall be 20-feet wide with a 4-inch graded aggregate surface
course over geotextile fabric, and constructed to the layout shown on JB Messerly Easement
Plat, Ingress Egress Easement dated 08 November 2005.
Excl usions/Clarifications:
. No existing utilities or subsurface structures are in the area.
· No road shoulders will be provided.
. No sub-base or base preparation_other than grading to drain.
· No embankment or fills are required.
. Aggregate all-weather surface.
· No grading of existing ditches
. Fencing shall be 6-foot tall galvanized steel fencing.
Exhibit A-Scope of Work; Task Order No.1 - Early Construction Work Rev.2
Page 1 of5
Task Order 1 . SOW REV 1118May2006.doc
. Upon completion and acceptance of road, maintenance and security for road shall be the
responsibility of OWNER.
4. Furnish and install; a) 42-inch storm sewer from point 3 on Sheet C-14 to point 11 on Sheet
C-15, b) 48-inch storm sewer from point 11 to point 12 on Sheet C-15, c) outfall at point 12
on Sheet C-15 including rip-rap and headwall, and d) outfall at point 3 on sheet C-14
including headwall and rip-rap. Stub-outs shall be provided at all locations along the storm
sewer where other pipes are to connect in as shown on drawings. Reference Drawings C-14,
C-15 and Detail I on CD-3. This work will allow continued storm drainage across site while
work is ongoing for new Aeration Basins 3-6.
Excepti ons/Clarifi cations:
. Dewatering, if required, shall be paid out of the storm sewer dewatering allowance item
at a unit rate of $74.18/lineal foot ($69.00 sub quote + 7.5% markup).
5. Through a Geotechnical Engineering Sub consultant, perform additional geotechnical borings
to support bidding efforts. MWH shall make no engineering interpretation of the data
collected. The information shall be given to bidders as additional information for the
preparation of their bids. This information shall also be made available to mass excavation
contractor for their use in developing excavation and dewatering plans.
6. Furnish and install temporary power to the CM and Owner project trailers.
7. Perform underground potholing and investigation at selected pipe crossings within site to
document actual elevations of existing piping where conflicts may occur with new piping.
These investigations are being done to supplement the information available on the Contract
Documents, however are not exhaustive in every respect. The objective is to add confidence
to the Owner in the GMP, but. not to relinquish MWH's right to time and compensation if
these investigations reveal a conflict that requires additional time to resolve.
8. Furnish and install 20-inch diameter Spirit Creek force main starting at reference point 193
on Sheet C-24 and running through reference points 194, 195, 196, 197 and terminating at the
inlet structure modification shown on Sheets C-25 and P-l. A temporary connection shall be
made to the existing inlet structure. The temporary connection shall generally consist of PVC
piping, piped to discharge into the top of the existing structure. Reference Drawing Sheets C-
24, C-25, C-26, and C-27.
Excl usions/Clarifications:
. Owner shall supply force main piping, fittings, and material.
. Well pointing, if required, shall be paid from the 20-inch force main dewatering
allowance at a unit price of $ 197.801lineal foot ($184.001lf sub quote + 7.5% markup).
. Existing plant roads cut and demolished for installation of force main shall be restored
with temporary paving to provide traffic flow.
9. Furnish and install temporary access road to trailer area and to main entrance, parking area
and office trailers for CONSTRUCTION MANAGER and OWNER. Owner's office trailer
shall be a doublewide trailer. An 8-foot wide elevated wooden porch with two sets of stairs
shall be provided between Construction Manager and Owner's trailer. The porch area shall be
Exhibit A-Scope of Work; Task Order No. I - Early Construction Work Rev.2
Page 2 of5 '
Task Order 1- SOW REV 1118May2006.doc
covered with corrugated metal decking or corrugated fiberglass decking with gutters and
downspouts to protect access stairs. Electric, telephone, high speed internet, potable water
and sewerage connection to nearest sewer manhole shall be provided to all trailer offices.
Office trailer area shall be provided with 6-foot chain link temporary security fencing with
three-strand barbed wire at top and one lockable gate.
Exclusions/Clarifications:
. A total of 2 acres of topsoil stripping and stockpiling are included in the GMP~
10. Construct temporary staging area suitable for storage and security of materials and equipment
received onsite. Staging area shall consist of fenced area paved with filter fabric and 6-inch
thick crushed aggregate base. Existing lawn areas designated by OWNER to be returned to
lawn areas later shall not be paved with aggregate.
Excl usi ons/Clarifications:
. Fencing shall be temporary galvanized fencing.
11. Initiate settlement-monitoring survey to establish baseline of site elevations. Elevation shot
measurements shall be made bi-weekly and plotted on a trend graphic versus time and
reviewed by Construction Manager and Owner regularly. Elevation shots shall be made at the
the following locations at inscribed marks on the structure:
. North and south top of wall at Secondary Clarifiers 1,2,3 and 4.
. All four top of wall comers at Primary Clarifiers 1 through 4 and 5 through 8.
. All four top of wall comers at Aeration Basins 1 and 2.
. All four comers of RAW IW AS Bldg 2.
. Northeast and southeast comers of Administration Building
. This work will be performed over a 12-month period only. Additional survey will be
included in future task orders.
Excl usions/Clarifications:
. CM will not make any interpretations of data collected. CM will review data with Owner
and Owner will determine any mitigation measures required.
. GMP does not include any costs or allowances for mitigation measures.
12. Clear and grub site within limits shown on Sheets C-5 and C-6. Construction Manager shall
dispose of roots, small trees, and debris. ,
13. Furnish and install measures required by Stormwater Pollution Prevention Plan for areas to be
cleared and grubbed. This area to be protected shall the area within the clearing limits shown
on Sheets C-5 and C-6.
14. Procure grit equipment as specified in 90% drawings. The grit facilities are a critical path
item on the construction schedule. The dimensions of the structure to house the equipment
cannot be finalized until equipment requirements are approved on submittals. The purpose of
this early purchase is to obtain submittals early.
Exhibit A-Scope of Work; Task Order No.1 - Early Construction Work Rev.2
Page 3 of 5
Task Order 1- SOW REV 1118May2006.doc
Exclusions/Clarifications:
. Scope includes receiving, unloading, care, custody and control. Any costs associated with
revised design, or other out-of-scope items shall be considered Extra Work.
15. Prepare through an engineering subconsultant, a detailed design for two construction
entrances. Plan shall be submitted to Georgia Department of Transportation for review and
approval in association with GDOT permit. Owner shall provide design/construction of any
traffic signal modifications or modifications to the public roads.
16. Construct two construction entrances in item 18 above. Modifications to public roads or
traffic signals by others.
1.1 Project Management
All project management activities required for this task order will be conducted in accordance
with the guidelines of the General Conditions. These activities are briefly described below:
1. A detailed project schedule will be prepared and will be updated and reviewed with the
Owner monthly.
2. Monthly project progress meetings will be held and meeting summaries will be prepared.
3. Required project staffing commitments for the project will be verified and completed.
Project roles, assignments and requirements will be communicated with all project team
members.
4. Project filing system, list of contacts, project administrative procedures, project Intranet
system and other administrative elements for the project will be established and maintained.
5. Control and management of all subcontractors and project personnel will be accomplished.
6. Quality management plan. (MWHC will begin implementation of the QA/QC procedures as
identified in 3.3.1.70ualitv Review of the contract documents. The project field staff-during
TO-l will monitor the quality of the work being preformed in strict accordance with the draft
QA/QC plan being review by ADD and MWHC. During the later stages of TO-l the MWHC
QA/QC manager will take over these responsibilities and continue the program through
project completion.)
7. Safety Management plan. MWHC will begin implementation of the Draft Site Specific
Health & Plan dated March 7 2006. The MWHC field staff will administer and monitor this
plan during TO-l and TO-2 any addition or deletions during final review of the plan will be
incorporated into the final plan.
8. The deliverable for these Project Management activities will be the Project Manual prepared
under the Phase 1 Preconstruction Services.
. Invoice format and procedure
. Communication protocol
. Work breakdown structure, work plan
. Phase One schedule of tasks, staff assignments and deliverables
Exhibit A-Scope of Work; Task Order No.1 - Early Construction Work Rev.2
Page 4 of 5
Task Order 1- SOW REV 1118May2006.doc
. Technical review schedule and participants
· Quality management plan
· Safety management Plan.
1.2 Construction Kickoff Meeting and Monthly Progress Meetings
In the kickoff meeting, the assembled team of Owner and MWH/ will define the primary goals of
the project and identify direct and underlying concerns of all participants. Monthly progress
meetings will be held to provide a progress update to the OWNER and address issues identified.
~ Deliverable -Summary memo for the meetings
2.0 PROJECT IMPLEMENTATION
MWH will maintain an on-site staff for this Work including superintendent, construction manager
and administrative person. Construction subcontractors will be released to begin construction
based on anticipated equipment delivery dates. MWH will administer the work, including
compliance with insurance and bonding requirements, construction safety requirements,
construction scheduling, and coordination among all project participants. Additional tasks will
include:
. Subcontractor coordination and management
. Pay estimate and cash flow projections
· Document control
· Procurement
· Scheduling
· Contract compliance
· Material storage
. ,Scheduling of vendor training for owner's maintenance staff
. Scheduling and coordination of material and ~quipment testing by OWNER
End of Attachment A
Exhibit A-Scope of Work; Task Order No. J - Early Construction Work Rev,2
Page 5 of 5
Task Order J - SOW REV 1118May2006.doc
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EXIDBIT A
SUPPLEMENTAL GENERAL CONDITIONS AND GENERAL CONDITIONS
MWHCONSTRUCTORS, INC.
AUGUSTA CAPITAL IMPROVEMENTS PROGRAM PROJECT NO. 80130
J B MESSERLY WATER POLLUTION CONTROL PLANT
CONSTRUCTION MANAGEMENT AT RISK AGREEMENT - CONSTRUCTION SERVICES
SUPPLEMENTAL GENERAL CONDITIONS
ARTICLE I--DEFINITIONS
Delete Article I and replace with the following: "Wherever used in these General Conditions or in the other
Contract Documents all terms have the meanings as defined in Article 2 of the Agreement, which are applicable to
both the singular and plural thereof.
ARTICLE 2-PRELIMINARY MATTERS
Copies of Documents:
2.2. Add the following phrase after "one (1) complete" in line 2: "reproducible electronic" so that the entire
paragraph reads as follows:
"Mter the award of the Contract, OWNER shall furnish CONTRACTOR, at no cost, one (1) complete
reproducible electronic set of the Contract Documents for execution of the work. Additional sets of the project
manual and drawings and/or individual pages or sheets of the project manual or drawings will be furnished by
COUNTY upon CONTRACTOR's request and at CONTRACTOR's expense, which will be OWNER's standard
charges for printing and reproduction."
Commencement of Contract Time, Notice to Proceed:
2.3. Add the following after "A Notice to Proceed" in the second sentence: "shall be given in 15 days" and
delete "may be given at any time" in second sentence so that the entire paragraph reads as follows:
"The Contract Time shall commence as established in the Notice to Proceed. A Notice to Proceed shall be
given within 15 days after the Effective Date of the Contract."
Before Starting Construction:
2.5. Delete "or reasonably should have known" from final line so that the entire paragraph reads as follows:
"Before undertaking each part of the Work, CONTRACTOR shall carefully study and compare the Contract
Documents and check and verify pertinent figures shown thereon and all applicable field measurements.
CONTRACTOR shall promptly report in writing to PROFESSIONAL any conflict, error, ambiguity, or discrepancy
which CONTRACTOR may discover and shall obtain a written interpretation or clarification from PROFESSIONAL
before proceeding with any Work affected thereby. CONTRACTOR shall be liable to OWNER for failure to report
any conflict, error, ambiguity or discrepancy in the Contract Documents, if CONTRACTOR knew thereof."
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ARTICLE 3-CONTRACT DOCUMENTS; INTENT,
AMENDING, REUSE
Intent:
3.2. Delete "Any Work; materials or equipment that may reasonably be inferred from the Contract
Documents or from prevailing custom or trade usage as being required to produce the intended result will be
supplied whether or not specifically called for." So that the entire paragraph reads as follows:
"It is the intent of the Contract Documents to describe a functionally complete Project (or part thereot) to be
constructed in accordance with the Contract Documents. When words or phrases which have a well-known technical
or construction industry or trade meaning are used to describe Work, materials or equipment, such words shall be
interpreted in accordance with that meaning."
3.4. Delete the following from Line 2 "whether such reference be specific or by implication". So that the
entire paragraph reads as follows:
"Reference to standards, specifications, manuals or codes of any technical society, organization or
association, or to the Laws or Regulations of any governmental authority shall mean the latest standard,
specification, manual, code or Laws or Regulations in effect at the time of opening of Bids (or on the Effective Date
of the Agreement if there were no Bids), except as may be otherwise specifically stated in the Contract Documents.
3.5. Delete the following from the final Line: "or should reasonably known thereof' so that the entire
paragraph reads as follows:
"If, during the performance of the Work, CONTRACTOR discovers any conflict, error, ambiguity or
discrepancy within the Contract Documents or between the Contract Documents and any provision of any such Law
or Regulation applicable to the performance of the Work or of any such standard; specification, manual or code or of
any instruction of any Supplier referred to in 6.7, CONTRACTOR shall so report to PROFESSIONAL in writing at
once and before proceeding with the Work affected thereby and shall obtain a written interpretation or clarification
from PROFESSIONAL; however, CONTRACTOR shall not be liable to OWNER or PROFESSIONAL for failUre
to report any conflict, error, ambiguity or discrepancy in the Contract Documents unless CONTRACTOR had actual
knowledge thereof."
Reuse of documents:
3.8. Add the following sentence at the end of this Section: "The CONSTRUCTION MANAGER and
Subcontractors shall, however, be provided with electronic versions of the Contract Documents to assist in the
submission of shop drawings and other submittals." So that the entire paragraph reads as follows:
Neither CONTRACTOR nor any Subcontractor or Supplier or other person or organization performing or
furnishing any of the Work under a direct or indirect contract with OWNER shall have or acquire any title to or
OWNERSHIP rights in any of the Drawings, Specifications or other documents (or copies of any thereot) prepared
by or bearing the seal of PROFESSIONAL or PROFESSIONAL's consultant; and they shall not reuse such
Drawings, Specifications or other documents (or copies of any thereot) on extensions of the Project or any other
project without written consent of OWNER and PROFESSIONAL and specific written verification or adaptation by
PROFESSIONAL.. The CONSTRUCTION MANAGER and Subcontractors shall, however, be provided with
electronic versions of the Contract Documents to assist in the submission of shop drawings and other submittals.
SGC-3
ARTICLE 5-BONDS AND INSURANCE
CONTRACTOR's Liability Insurance:
5.3.7. Add the following word before "general liability insurance" in Line 1: "commercial".
Contractual Liability Insurance:
5.4. Replace "comprehensive" with "commercial" in Line 1 and replace "paragraphs 6.32 and 6.33" with
"this Agreement" at the end of the final Line so the entire paragraph reads as follows:
"The commercial general liability insurance required by paragraph 5.3 will include contractual liability
insurance applicable to CONTRACTOR's obligations under this Agreement."
Indemnification
5 .16.1. Delete the entire paragraph.
5.16.2. Delete the entire paragraph.
5.16.3. Delete the entire paragraph.
ARTICLE 6--CONTRACTOR'S RESPONSIBILITIES
6.2. Replace the word "superintendent" with the phrase "project manager" so that the entire paragraph
reads as follows:
"CONTRACTOR shall keep on the Work, at all times during its progress, key personnel proposed in
CONTRACTOR's statement of qualifications and oral presentation including a competent resident project manager,
who shall not be replaced without written notice to OWNER and PROFESSIONAL except under extraordinary
circumstances. The Project Manager will be CONTRACTOR's representative at the site and shall have authority to
act on behalf of CONTRACTOR. All communications to,the Project Manager shall be as binding as if given to
CONTRACTOR."
Adjusting Progress Schedule:
6.6. Replace "PROFESSIONAL" with "OWNER" in Line 1.
Substitutes or "Or-Equal" Items:
6.7.1. Delete and Replace entire Section 6.7.1 with the following: "Whenever materials or equipment are
specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular
Supplier, the naming of the 'item is intended to establish the type; function and quality required. In the event the
Contract Documents indicate allowance or use of equal materials or equipment, then materials or equipment of other
Suppliers may be used, following the process for approval set forth in 6.23 and following."
SGC-4
6.7.2. Delete the final line in this Section: "The procedure for review by PROFESSIONAL will be similar
to that provided in paragraph 6.7.1 as applied by PROFESSIONAL and as may be supplemented in the General
Requirements." so the entire paragraph reads as follows:
"If a specific means, method, technique, sequence or procedure of construction is indicated in or required
by the Contract Documents, CONTRACTOR may furnish or utilize a substitute means, method, sequence, technique
or procedure of construction acceptable to PROFESSIONAL, if CONTRACTOR submits sufficient information to
allow PROFESSIONAL to determine that the substitute proposed is equivalent to that indicated or required by the
Contract Documents."
6.7.3. Delete this Section in its entirety.
Patent Fees and Royalties:
6.12. Add the following language to the end of the Final Line: ", except to the extent such infringement is
due to the fault of the OWNER or PROFFESSIONAL." So that the entire paragraph reads as follows:
"CONTRACTOR shall pay all license fees and royalties and assume all costs incident to the use in the
performance of the Work or the incorporation in the Work of any invention, design, process, product or device
which is the subject of patent rights or copyrights held by others.' CONTRACTOR shall indemnify and hold
harmless OWNER and PROFESSIONAL and anyone directly or indirectly employed by either of them from and
against all claims, damages, losses and expenses including attorneys' fees and court and arbitration costs arising out
of any infringement on patent rights or copyrights incident to the use in the performance of the Work or resulting
from the incorporation in the Work of any invention, design, process, product or device not specified in the Contract
Documents, and shall defend all such claims in connection with any alleged infringement of such rights, except to the
extent such infringement is due to the fault of the OWNER or PROFFESSIONAL."
Permits:
6.13. Delete and replace the sentence with the following: "Any delays associated with the permitting
process will be considered for time extensions and actual damages or additional compensation unless due to the fault
of the CONTRACTOR." So that the entire paragraph reads as follows:
"CONTRACTOR shall obtain and pay for all construction permits, licenses, governmental charges and
inspection fees, and all public utility charges which are applicable and necessary for the execution of the Work. All
permit costs shall be included in the base bid. Permits, if any, which are provided and paid for by OWNER, are listed
in the Supplementary Conditions. Any delays associated with the permitting process will be considered for time
extensions and actual damages or additional compensation unless due to the fault of the CONTRACTOR."
Shop Drawings and Samples:
, 6.24.1. Delete the final Line "Any delays associated with the submittal process will be considered for time
extensions only, and no damages or additional compensation for delay will be allowed." in its entirety so the entire
paragraph reads as follows:
SGC-5
"No Work requiring a submittal or sample submission shall commence until the submission has been
approved by PROFESSIONAL. A copy of each approved submittal and each approved sample shall be kept in good
order by CONTRACTOR at the site and shall be available to PROFESSIONAL and OWNER."
6.24.2. Delete the entire Section which reads: "Before submission of each Shop Drawing or sample,
CONTRACTOR shall have determined and verified all quantities, dimensions, specified performance criteria,
installation requirements, materials, catalog numbers and similar data with respect thereto and reviewed or
coordinated each Shop Drawing or sample with other Shop Drawings and samples and with the requirements of the
Work and the Contract Documents." in it's entirety.
6.24.3. Delete the entire Section which reads: "At the time of each submission, CONTRACTOR shall give
PROFESSIONAL specific written notice of each variation that the Shop Drawings or samples may have from the
requirements of the Contract Documents, and, in addition, shall cause a specific notation to be made on each Shop'
Drawing submitted to PROFESSIONAL for review and approval of each such variation." in its entirety.
6.27. Delete the entire section which reads: "PROFESSIONAL's approval of submittals or samples shall
not relieve CONTRACTOR from responsibility for any variation from the requirements of the Contract Documents
unless CONTRACTOR has, in writing, called PROFESSIONAL's attention to each such variation at the time of
submission and the OWNER has given written approval to the specific deviation; any such approval by
PROFESSIONAL shall not relieve CONTRACTOR from responsibility for errors or omissions in the submittals." in
it's entirety.
6.28. Delete the entire section and replace it with the following which reads: "Where a shop drawing or
sample is required by the Contract Documents or the schedule of shop drawings and sample submissions accepted by
PROFESSIONAL as required, any related work performed prior to PROFESSIONAL's review and approval of the
pertinent submittal will be at the sole risk of CONTRACTOR" in it's entirety.
Indemnification:
6.32. Delete this Section in it's entirety and replace with the following: "To the fullest extent permitted by
Laws and Regulations, CONTRACTOR shall indemnify and hold harmless OWNER, PROGRAM MANAGER and
PROFESSIONAL and their consultants, agents and employees from and against all claims, damages, losses and.
expenses, (including but not limited to fees and charges of architects, attorneys and other experts and court and
arbitration costs) arising out of or resulting from the performance of the Work, provided that any such claim,
damage, loss or expense (a) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of
tangible property (other than the Work itself) including the loss of use resulting there from and (b) is caused by any
negligent act or omission of CONTRACTOR, any Subcontractor, any person or organization directly or indirectly
employed by any of them to' perform or furnish any of the Work or anyone for whose acts any of them may be
liable." ,
ARTICLE to--CHANGES IN THE WORK
10.2. Delete the following from the final line: "The effect of this paragraph shall remain paramount and
shall prevail irrespective of any conflicting provisions contained in these Contract Documents."
SGC-6
ARTICLE ll-CHANGE OF CONTRACT PRICE
11.1. Replace "Contract Price" in the final line with "GMP."
11.2. Replace "Contract Price" in the first and second lines with "GMP."
Add ", Task Order" immediately following "Change Order" in the first line.
11.3.5. Replace this Section in its entirety with the following Section: "If the pricing methods specified in
11.3 are inapplicable, or if the parties are unable to agree on a price for the changed work, the CONSTRUCTION
MANAGER shall perform the Work on a cost plus basis for a price equal to the Cost of the Work plus the
CONSTRUCTION MANAGER's Fee in accordance with 7.1.3 of the Agreement. OWNER shall then process a
unilateral Change Order, specifying the cost plus method to be paid and CONSTRUCTION MANAGER shall
perform the Work as directed in the Change Order."
11.3.6. Add the following sentence to the end of this Section: "If the CONSTRUCTION MANAGER
disagrees with the OWNER's adjustment it may contests that amount in a claim pursuant to this Article and Article
16."
Cost of the Work:
11.4. Delete this Section and all of its subsections in its entirety.
11.5. Delete this Section and all of its subsections in its entirety.
CONTRACTOR's Fee:
11.6. Delete this Section and all of its subsections in its entirety and replace with the following:
"The Contractor shall be entitled to a negotiated fee for increases in the GMP caused by a Change Order."
11.7. Delete this Section in its entirety.
Cash Allowances:
11.8. Delete the following from the only line in this Section: "shall cause the Work so covered to be done
by such Subcontractors or Suppliers and for such sums within the limit of the allowances as may be acceptable to
PROFESSIONAL" .
ARTICLE 12~-CHANGE OF CONTRACT TIME
12.2. Delete the following from the end of this Section: "Provided, however, notwithstanding anything in
the Contract Documents to the contrary, no interruption, interference, inefficiency, suspension or delay in the
performance, progress, commencement or completion of the Work for any cause whatsoever, including those for
which OWNER or PROFESSIONAL may be responsible in whole or in part, shall relieve CONTRACTOR of its
SGC-7
duty to perform or give rise to any right to damages or additional compensation from OWNER. CONTRACTOR's
sole and exclusive remedy against OWNER for interruption, interference, inefficiency, suspension or delay of any
aspect of the Work shall be the right to seek an extension to the Contract Time in accordance with the procedures set
forth herein." Also, remove the phrase "which OWNER may" immediately after "number of days of delay" from the
second sentence and replace the word "strictly" with the word "substantially" between "shall have" and "complied
with" in the second sentence, so the entire paragraph reads as follows:
"If CONTRACTOR is delayed at any time in the performance, progress, commencement, or completion of the Work
by any act or neglect of OWNER or PROFESSIONAL, or by an employee of either, or by any separate
CONTRACTOR employed by OWNER, or by changes ordered in the Work, or by labor disputes, fire, unavoidable
casualties, utility conflicts which could not have been identified or foreseen by CONTRACTOR using reasonable
diligence, or any causes beyond CONTRACTOR's control or fault, then the Contract Time shall be extended by
Change Order for such reasonable time as OWNER may determine. CONTRACTOR shall be entitled to an
extension of time for such causes only for the number of days of delay determined to be due solely to such causes
and only to the extent such occurrences actually delay the completion of the Work and then only if CONTRACTOR
shall have substantially complied with all the requirements of the Contract Documents." ,
ARTICLE 13-- WARRANTY AND GUARANTEE; TESTS AND INSPECTIONS: CORRECTION,
REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK
Uncovering Work:
13.9. Delete the following language from the end of Line 2 "and OWNER shall be entitled to an appropriate
decrease in the Contract Price and, if the parties are unable to agree as to the amount thereof, OWNER may make a
claim therefore as provided in Article 11." and replace with "as part of the Cost of the Work."
Replace the lines immediately following "as part of the Cost of the Work" (above) with "If, however, such
Work is not found to be defective and the CONSTRUCTION MANAGER is not at fault, then the
CONSTRUCTION MANAGER shall be allowed an increase in the GMP or an extension of the Contract Time, or
both, directly attributable to such uncovering, exposure, observation, inspection, testing and reconstruction, and, if
the parties are unable to agree as to the amount or extent thereof, CONSTRUCTION MANAGER may make a claim
therefore as provided in Articles 11 and 12."
One Year Correction Period:
13.12. Delete", indirect and consequential" immediately after "direct" in the final line.
Acceptance of Defective Work:
13.13. Delete "indirect and consequential costs" immediately after "direct" in the first line.
Add "as part of the Cost of the Work" immediately after "attorneys and other professionals)" in Line 2.
Delete "and OWNER shall be entitled to an appropriate decrease in the Contract Price, and, if the parties
are unable to agree as to the amount thereof, OWNER may make a claim therefore as provided in Article 11" in the
second to last line.
Replace "after such recommendation" with "after final payment" in the final line.
SGC-8
OWNER May Correct Defective Work:
13.14. Remove "indirect and consequential" from lines 4 and 5.
ARTICLE 14-PA YMENTS TO CONTRACTOR AND COMPLETION
Application for Progress Payment:
14.2. Delete the entire paragraph and replace with the following:
"At least twenty (20) calendar days before the date established for each progress payment (but not more
often than once a month), CONTRACTOR shall submit to PROFESSIONAL for review an application for Payment
filled out and signed by CONTRACTOR covering the work completed as of the date of the application and
accompanied by such supporting documentation as is required by the Contract Documents. If payment is requested
on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at the site or
at another location agreed to in writing, the Application for Payment shall also be accompanied by a bill of sale,
invoice or other documentation warranting that OWNER has received the materials and equipment free and clear of
all liens and evidence that the materials and equipment are covered by appropriate property insurance and other
arrangements to protect OWNER's interest therein, all of which will be satisfactory to OWNER. The amount of
retainage with respect to progress payments will be as stipulated in the Agreement."
Final Application for Payment:
14.12.3. Delete the entire paragraph which states: "General Indemnity: CONTRACTOR shall indemnify
OWNER and PROFESSIONAL for any damages sustained, including lost profits, resulting from CONTRACTOR's
failure or refusal to perform the work required by these contract documents."
ARTICLE 16--DlSPUTE RESOLUTION
16.1. Delete the entire paragraph and replace it with the following:
"All disputes arising under this Contract or its interpretation whether involving law or fact or both, or extra
work, and all claims for alleged breach of contract shall within thirty (30) days of a decision by the
PROFESSIONAL or a reasonable time after the conunencement of the dispute be presented by CONSTRUCTION
MANAGER to OWNER for decision. All papers pertaining to claims shall be filed in quadruplicate. Such notice
need not detail the amount of the claim but shall state the facts surrounding the claim in sufficient detail to identify
the claim, together with its character and scope. In the meantime, CONTRACTOR shall proceed with the Work as
directed. Any claim not presented within the time limit specified in this paragraph shall be deemed to have been
waived. If the claim is of a continuing character a notice of a potential claim shall be given within fifteen (IS)
working days of its conunencement and the claim shall be submitted within fifteen (15) working days after the full
impact is known. Each decision by OWNER will be in writing and will be mailed to CONTRACTOR by registered
or certified mail, return receipt requested, directed to his last known address within 30 days of receipt."
ARTICLE 17-MISCELLANEOUS
SGC-9
Revision Dace
August 2001
GENERAL CONDITIONS
ARTICLE I-DEFINITIONS
Wherever used in these General Conditions or in the other Contract Documents the following terms have the
meanings indicated, which are applicable to both the singular and plural thereof:
Addenda -Any changes, revisions or clarifications of the Contract Documents which have been duly issued
by OWNER to prospective Bidders prior to the time of opening of Bids.
Agreement-The written agreement between OWNER and CONTRACTOR covering the Work to be performed;
other Contract Documents are attached to the Agreement and made a part thereof as provided therein.
Application for Payment-The form accepted by PROFESSIONAL which is to be used by CONTRACTOR in
requesting progress or final payments and which is to include such supporting documentation as is required
by the Contract Documents.
Bid- The offer or proposal of the bidder submitted on the prescribed form setting forth the price(s) for the Work
to be performed.
Bonds-Bid, performance and payment bonds and other instruments of security furnished by CONTRACTOR
and its Surety in accordance with the Contract Documents.
Change Order-- A document recommended by PROFESSIONAL, which is signed by CONTRACTOR and
OWNER, and authorizes an addition, deletion or revision in the Work, or an adjustment in the Contract Price
or the Contract Time, issued on or after the Effective Date of the Agreement.
Contract Documents-The Agreement: Addenda (which pertain to the Contract Documents); CONTRACTOR's
Bid (including documentation accompanying the Bid and any post-Bid documentation submitted prior to the
Notice of Award) when attached as an exhibit to the Agreement; the Bonds; these General Conditions; the
Supplementary Conditions; the Plans, Specifications and the Drawings as the same are more specifically
identified in the Agreement; Certificates of Insurance; Notice of Award; and Change Order duly delivered after
execution of Contract together with all amendments, modifications and supplements issued pursuant to
paragraphs 3.3 and 3.5 or after the Effective Date of the Agreement.
Contract Price- The moneys payable by OWNER to CONTRACTOR under the Contract Documents as stated
in the Agreement (subject to the provisions of paragraph 11.9.1 in the case of Unit Price Work).
Contract Time- The number of days (computed as provided in paragraph 17.2.1) or the date stated in the
Agreement for the completion of the Work.
CONTRACTOR -The person, firm or corporation with whom OWNER has entered into the Agreement.
COUNTY-Richmond County, Georgia, or Augusta, Georgia, political subdivisions of the State of Georgia, the
Augusta-Richmond County Commission, and its authorized designees, agents, or employees.
Oay -Either a working day or calendar day as specified in the bid documents. If a calendar day shall fall on
a legal holiday, that day will be omitted from the computation. Legal Holidays: New Year's Day, Martin Luther
King Day, Memorial Day, 4th of July, Labor Day, Veterans Day, Thanksgiving Day and the following Friday,
and Christmas Day.
Oefective-An adjective which, when modifying the word Work, refers to Work that is_unsatisfactory, faulty or
GC-1
Page 1 of 52
Revision Date
August 2001
deficient, does not conform to the Contract Documents, or does not meet the requirements of any inspection,
reference standard, test or approval referred to in the Contract Documents, or has been damaged prior to
PROFESSIONAL's recommendation of final payment, unless responsibility for the protection thereof has been
assumed by OWNER at Substantial Completion (in accordance with paragraph 14.8 or 14.10).
Drawings-The drawings which show the character and scope of the Work to be performed and which have
been prepared or approved by PROFESSIONAL and are referred to in the Contract Documents.
Effective Oate of the Agreement-The date indicated in the Agreement on which it becomes effective, but if
no such date is indicated it means the date on which the Agreement is signed by the Mayor of Augusta,
Georgia.
Field Order-A written order issued by PROFESSIONAL that modifies Drawings and Specifications, but which
does not involve a change in th"e Contract Price or the Contract Time.
General Requirements-Sections of Division I of the Specifications.
Laws or Regulations-Laws, rules, regulations, ordinances, codes and/or orders.
Notice of Award- The written notice by OWNER to the apparent successful bidder stating that upon compliance
by the apparent successful bidder with the conditions precedent enumerated therein, within the time specified,
OWNER will sign and deliver the Agreement.
Notice to Proceed-A written notice given by OWNER to CONTRACTOR (with a copy to PROFESSIONAL)
fixing the date on which the Contract Time will commence to run and on which CONTRACTOR shall start to
perform CONTRACTOR'S obligations under the Contract Documents.
OWNER- Augusta, Georgia, and the Augusta-Richmond County Commission.
Partial Utilization-Placing a portion of the Work in seNice for the purpose for which it is intended or for a
related purpose) before reaching Substantial Completion for all the Work.
PROFESSIONAL-The Architectural/Engineering firm or individual or in-house licensed person designated to
perform the design and/or resident engineer seNices for the Work. '
PROGRAM MANAGER - The professional firm or individual designated as the representative or the OWNER
who shall 'act as liaison between OWNER and both the PROFESSIONAL and CONTRACTOR when project
is part of an OWNER designated program.
Project-The total construction of which the Work to be provided under the Contract Documents may be the
whole, or a part, as indicated elsewhere in the Contract Documents.
Project Area- The area within which are the specified Contract Limits of the improvements contemplated to
be constructed in whole or in part under this Contract.
Project Manager-The professional in charge, seNing OWNER with architectural or engineering seNices, his
successor, or any other person or persons, employed by said OWNER, for'the purpose of directing or having
in charge the work embraced in this Contract.
Resident Project Representative- The authorized representative of PROFESSIONAL as PROGRAM
MANAGER who is assigned to the site or any part thereof.
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Shop Orawings-AII drawings, diagrams, illustrations, schedules and other data which are specifically prepared
by or for CONTRACTOR to illustrate some portion of the Work and all illustrations, brochures, standard
schedules, performance charts, instructions, diagrams and other information prepared by a Supplier and
submitted by CONTRACTOR to illustrate material or equipment for some portion of the Work.
Specifications-Those portions of the Contract Documents consisting of written technical descriptions of
materials, equipment, construction systems, standards and workmanship as applied to the Work and certain
administrative details applicable thereto.
Subcontractor-An individual, firm or corporation having a direct contract with CONTRACTOR or with any other
SUBCONTRACTOR for the performance of a part of the Work at the site.
Substantial Completion- The Work (or a specified part thereof) has progressed to the point where, in the
opinion of PROFESSIONAL as evidenced by PROFESSIONAL's definitive certificate of Substantial
Completion, it is sufficiently complete, in accordance with the Contract Documents, so that the Work (or
specified part) can be used for the purposes for which it is intended, or if there be no such certificate issued,
when final payment is due in accordance with paragraph 14.13. The terms "substantially complete" and
"substantially completed" as applied to any Work refer to Substantial Completion thereof.
Supplementary Conditions-The part of the Contract Documents which amends or supplements these General
Conditions.
Supplier-A manufacturer, fabricator, supplier, distributor, materialman or vendor.
Underground Facilities-All pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels or other
such facilities or attachments, and any encasement containing such facilities which have been installed
underground to furnish any of the following seNices or materials: electricity, gases, steam, liquid petroleum
products, telephone or other communications, cable television, sewage and drainage removal, traffic or other
control systems, or water.
Unit Price Work-Work to be paid for on the basis of unit prices.
Work-The entire completed construction or the various separately identifiable parts thereof required to be
furnished under the Contract Documents. Work is the result of performing seNices, furnishing labor and
furnishing and incorporating materials and equipment into the construction, and furnishing documents, all as
required by the Contract Documents.
Work Change Oirective-A written directive to CONTRACTOR, issued on or after the Effective Date of the
Agreement and signed by OWNER and recommended by PROFESSIONAL, ordering an addition, deletion
or revision in the Work, or responding to differing or unforeseen physical conditions under which the Work is
to be performed as provided in paragraph 4.2 or 4.3 or to emergencies under paragraph 6.22. A Work Change
Directive may not change the Contract Price or the Contract Time but is evidence that the parties expect that
the change directed or documented by a Work Change Oirective will be incorporated in a subsequently issued
Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract
Time as provided in Article 10.
Written Amendment-A written amendment of the' Contract Documents, signed by OWNER and
CONTRACTOR on or after the Effective Date of the Agreement and normally dealing with the non-engineering
or non-technical rather than strictly Work-related aspects of the Contract Documents.
GC-3
Page 3 of 52
Revision Date
August 2001
ARTICLE 2-PRELlMINARY MATTERS
Delivery of Bonds:
2.1. When CONTRACTOR delivers the executed Agreements to OWNER, CONTRACTOR shall also
deliver to OWNER such Bonds as CONTRACTOR may be required to furnish in accordance with these
Contract Documents.
Copies of Documents:
2.2. After the award of the Contract, OWNER shall furnish CONTRACTOR, at no cost, one (1)
complete set of the Contract Documents for execution of the work. Additional sets of the project manual and
drawings and/or individual pages or sheets of the project manual or drawings will be furnished by COUNTY
upon CONTRACTOR's request and at CONTRACTOR's expense, which will be OWNER's standard charges
for printing and reproduction.
Commencement of Contract Time, Notice to Proceed:
2.3. The Contract Time shall commence as established in the Notice to Proceed. A Notice to Proceed
may be given at any time after the Effective Date of the Contract.
Starting the Project:
2.4. CONTRACTOR shall begin the Work on the date the Contract Time commences. No Work shall
be done prior to the date on which the Contract Time commences. Any Work performed by CONTRACTOR
prior to date on which Contract Time commences shall be at the sole risk of CONTRACTOR.
Before Starting Construction:
2.5. Before undertaking each part of the Work, CONTRACTOR shall carefully study and compare
the Contract Documents and check and verify pertinent figures shown thereon and all applicable field
measurements. CONTRACTOR shall promptly report in writing to PROFESSIONAL any conflict, error,
ambiguity, or discrepancy which CONTRACTOR may discover and shall obtain a written interpretation or
clarification from PROFESSIONAL before proceeding with any Work affected thereby. CONTRACTOR shall
be liable to OWNER for failure to report any conflict, error, ambiguity or discrepancy in the Contract
Documents, if CONTRACTOR knew or reasonably should have known thereof.
2.6. Within ten days after the Effective Date of the Agreement (unless otherwise specified in the
General Requirements), CONTRACTOR shall submit to PROFESSIONAL and OWNER for review:
2.6.1. an estimated progress schedule indicating the starting and completion dates of the various
stages of the Work:
2.6.2. a preliminary schedule of Shop Drawing and Sample submissions, and
2.6.3. a preliminary schedule of values for all of the Work which will include quantities and prices of
items aggregating the Contract Price and will subdivide the Work into component parts in sufficient detail to
seNe as the basis for progress payments during construction. Such prices will include an appropriate amount
of overhead and profit applicable to each item of Work which will be confirmed in writing by CONTRACTOR
at the time of submission.
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Revision Date
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2.7. Before any Work at the site is started, CONTRACTOR shall deliver to OWNER, with copies to
each additional insured identified in the Supplementary Conditions, an original policy or certified copies of each
insurance policy (and other evidence of insurance which OWNER may reasonably request) which
CONTRACTOR is required to purchase and maintain in accordance with Article 5.
Pre-construction Conference:
2.8. Before any Work at the site is started, a conference attended by CONTRACTOR, OWNER,
PROFESSIONAL and others as appropriate will be held to establish a working understanding among the
parties as to the Work and to discuss the schedules referred to in 2.6 as well as procedures for handling
Shop Drawings and other submittals, processing applications for payment and maintaining required records.
Finalizing Schedules:
2.9. At least ten days before submission of the first Application for Payment, a conference attended
by CONTRACTOR, PROFESSIONAL and OWNER and others as appropriate will be held to finalize the
schedules submitted in accordance with paragraph 2.6. CONTRACTOR shall have an additional ten (10)
calendar days to make corrections and adjustments and to complete and resubmit the schedules. No
progress payment shall be made to CONTRACTOR until the schedules are submitted and acceptable to
OWNER and PROFESSIONAL as provided below. The finalized progress schedule will be acceptable to
OWNERand PROFESSIONAL as providing an orderly progression of the Work to completion within any
specified Milestones and the Contract Time, but such acceptance will neither impose on PROFESSIONAL
responsibility for the sequencing, scheduling or progress of the Work nor interfere with or relieve
CONTRACTOR from full responsibility therefor. The finalized schedule of Shop Drawing submissions and
Sample submissions will be acceptable to PROFESSIONAL as providing a workable arrangement for
reviewing and processing the submissions. CONTRACTOR's schedule of values shall be approved by
PROFESSIONAL as to form and substance.
CONTRACTOR, in addition to preparing an initially acceptable schedule, shall be responsible for
maintaining the schedule, including updating schedule. Schedule updates shall include progression of work
as compared to scheduled progress on work. Schedule updates shall accompany each pay request.
GC-5
Page 5 of 52
Revision Date
August 2001
ARTICLE 3-CONTRACT DOCUMENTS; INTENT,
AMENDING, REUSE
Intent:
3.1. The Contract Documents comprise the entire agreement between OWNER and CONTRACTOR
concerning the Work. The Contract Documents are complementary: what is called for by one is as binding
as if called for by all. The Contract Documents will be construed in accordance with the law of the State of
Georgia.
3.2. It is the intent of the Contract Documents to describe a functionally complete Project (or part
thereof) to be constructed in accordance with the Contract Documents. Any Work, materials or equipment
that may reasonably be inferred from the Contract Documents or from prevailing custom or trade usage as
being required to produce the intended result will be supplied whether or not specifically called for. When
words or phrases which have a well-known technical or construction industry or trade meaning are used to
describe Work, materials or equipment, such words shall be interpreted in accordance with that meaning.
3.3. Except as otherwise specifically stated in the Contract Documents or as may be provided by
amendment or supplement thereto issued by one of the methods indicated in 3.6 or 3.7, the provisions of the
Contract Documents shall take precedence in resolving any conflict, error, ambiguity or discrepancy between
the provisions of the Contract Documents and the provisions of any such standard, specification, manual,
code or instruction (whether or not specifically incorporated by reference in the Contract Documents) and the
provisions of any such Laws or Regulations applicable to the performance of the Work (unless such an
interpretation of the provisions of the Contract Documents would result in violation of such Law or Regulation).
Clarifications and interpretations of the Contract Documents shall be issued by PROFESSIONAL as provided
in paragraph 9.4.
3.4. Reference to standards, specifications, manuals or codes of any technical society, organization
or association, or to the Laws or Regulations of any governmental authority, whether such reference be
specific or by implication, shall mean the latest standard, specification, manual, code or Laws or Regulations
in effect at the time of opening of Bids (or on the Effective Date of the Agreement if there were no Bids),
except as may be otherwise specifically stated in the Contract Documents.
3.5. If, during the performance of the Work, CONTRACTOR discovers any conflict, error, ambiguity
or discrepancy within the Contract Documents or between the Contract Documents and any provision of any
such Law or Regulation applicable to the performance of the Work or of any such standard, specification,
manual or code or of any instruction of any Supplier referred to in 6.7, CONTRACTOR shall so report to
PROFESSIONAL in writing at once and before proceeding with the Work affected thereby and shall obtain
a written interpretation or clarification from PROFESSIONAL; however, CONTRACTOR shall not be liable.
to OWNER or PROFESSIONAL for failure to report any conflict, error, ambiguity or discrepancy in the
Contract Documents unless CONTRACTOR had actual knowledge thereof or should reasonably have known
thereof.
Amending and Supplementing Contract Documents:
3.6. The Contract Documents may be amended to provide for additions, deletions and revisions in
the Work or to modify the terms and conditions thereof in one or more of the following ways:
3.6.1. a formal Written Amendment,
GC-6
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Revision Date
August 2001
3.6.2. a Change Order (pursuant to paragraph 10.3), or
3.6.3. a Work Change Directive (pursuant to paragraph 10.4).
As indicated in paragraphs 11.2 and 12.1, Contract Price and Contract Time may only be changed by a
Change Order or a Written Amendment.
3.7. In addition, the requirements of the Contract Documents may be supplemented, and minor
variations and deviations in the Work may be authorized in one or more of the following ways:
3.7.1. a Field Order (pursuant to paragraph 9.5).
3.7.2. PROFESSIONAL's approval of a Shop Drawing or sample (pursuant to paragraphs 6.24 and
6.26), or
3.7.3. PROFESSIONAL's written interpretation or clarification (pursuant to paragraph 9.4).
Reuse of documents:
3.8. Neither CONTRACTOR nor any Subcontractor or Supplier or other person or organization
performing or furnishing any of the Work under a direct or indirect contract with OWNER shall have or acquire
any title to or OWNERSHIP rights in any of the Drawings, Specifications or other documents (or copies of
any thereof) prepared by or bearing the seal of PROFESSIONAL or PROFESSIONAL's consultant; and they
shall not reuse such Drawings, Specifications or other documents (or copies of any thereof) on extensions
of the Project or any. other project without written consent of OWNER and PROFESSIONAL and specific
written verification or adaptation by PROFESSIONAL.
GC-7
Page 7 of 52
Revision Date
August 2001
ARTICLE 4-AVAILABILlTY OF LANDS, PHYSICAL
CONDITIONS; REFERENCE POINTS
A vailability of Lands:
4.1. OWNER shall furnish, as indicated in the Contract Documents, the lands upon which the Work
is to be performed, rights-of-way and easements for access thereto, and such other lands which are
designated for the use of CONTRACTOR. Necessary easements or rights-of-way will be obtained and
expenses will be borne by OWNER. If CONTRACTOR and OWNER are unable to agree on entitlement to
or the amount or extent of any adjustments in the Contract Price or the Contract Times as a result of any delay
in OWNER's furnishing these lands, rights-of"way or easements, the CONTRACTOR may make a claim
therefor as provided in Articles 11 and 12. The CONTRACTOR shall provide for all additional lands and
access thereto that may be required for temporary construction facilities or storage of materials and
equipment.
Physical Conditions:
4.2.1. Explorations and Reports: Reference is made to the Supplementary Conditions for identification
of those reports of explorations and tests of subsurface conditions at or contiguous to the site that have been
utilized in preparing the Contract Documents and those drawings of physical conditions in or relating to
existing surface or subsurface structures at or contiguous to the site (except Underground Facilities) that have
been utilized in preparing the Contract Documents.
4.2.2. CONTRACTOR may rely upon the general accuracy of the "technical data" contained in such
reports and drawings. Such "technical data" is identified in the Supplementary Conditions. Except for such
reliance on such "technical data," CONTRACTOR may not rely upon or make any claim against OWNER,
PROFESSIONAL, or any of PROFESSIONAL's Consultants with respect to:
4.2.2.1. the completeness of such reports and drawings for CONTRACTOR's purposes, including but
not limited to, any aspects of the means, methods, techniques, sequences and procedures of construction
to be employed by CONTRACTOR and safety precautions and programs incident thereto, or
4.2.2.2. other data, interpretations, opinions and information contained in such reports or shown or
indicated in such drawings, or
4.2.2.3. any CONTRACTOR interpretation of or conclusion drawn from any "technical data" or any
such data, interpretations, opinions or information.
4.2.3. If conditions are encountered, excluding existing utilities, at the site which are (1) subsurface
or otherwise concealed physical conditions which differ materially from those indicated in the Contract
Documents or (2) unknown physical conditions of an unusual nature, which differ materially from those
ordinarily found to exist and generally recognized as inhererit in construction activities of the character
provided for in the Contract Documents, then CONTRACTOR shall give OWNER notice thereof promptly
before conditions are disturbed and in no event later than 48 hours after first obseNance of the conditions.
4.2.4. The OWNER and PROFESSIONAL shall promptly investigate such conditions, and, if they
differ materially and cause an increase or decrease in CONTRACTOR's cost of, or time required for,
performance of any part of the Work, the OWNER and PROFESSIONAL shall recommend an equitable
adjustment in the Contract Price or Contract Time, or both. If the OWNER and PROFESSIONAL determine
that the conditions at the Site are not materially different from those indicated in the Contract Documents or
are not materially different from those ordinarily found and that no change in the terms of the Contract is
GC-8
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Revision Date
August 2001
justified, the PROFESSIONAL shall notify CONTRACTOR of the determination in writing. The Work shall be
performed after direction is provided by the PROFESSIONAL.
Physical Conditions-Underground Facilities:
4.3.1. Shown or Indicated: The information and data shown or indicated in the Contract Documents
with respect to existing Underground Facilities at or contiguous to the site is based on information and data
furnished to OWNER or PROFESSIONAL by OWNER'S of such Underground Facilities or by others. Unless
it is otherwise expressly provided in the Supplementary Conditions:
4.3.1.1. OWNER and PROFESSIONAL shall not be responsible for the accuracy or completeness
of any such information or data; and
4.3.1'.2. The cost of all of the following will be included in the Contract Price and CONTRACTOR shall
have full responsibility for reviewing and checking all such information and data for locating all Underground
Facilities shown or indicated in the Contract Documents, for coordination of the Work with the OWNER'S of
such Underground Facilities during construction, for the safety and protection thereof as provided in paragraph
6.20 and repairing any damage thereto resulting from theWork, the cost of all of which will be considered as
having been included in the Contract Price.
4.3.2. Not Shown or Indicated. If an Underground Facility is uncovered or revealed at or contiguous
to the site which was not shown or indicated in the Contract Documents and which CONTRACTOR could not
reasonably have been expected to be aware of, CONTRACTOR shall, promptly after becoming aware thereof
and before performing any Work affected thereby except in an emergency as permitted by paragraph 6.22,
identify the OWNER of such Undergro~nd Facility and give written notice thereof to that OWNER and to
OWNER and PROFESSIONAL. PROFESSIONAL will promptly review the Underground Facility to determine
the extent to which the Contract Documents should be modified to reflect and document the consequences
of the existence of the Underground Facility, and the Contract Documents will be amended or supplemented
to the extent necessary. During such time, CONTRACTOR shall be responsible for the safety and protection
of such Underground Facility as provided in paragraph 6.20. CONTRACTOR shall be allowed an increase in
the Contract Price or an extension of the Contract Time, or both, to the extent that they are attributable to the
existence of any Underground Facility that was not shown or indicated in the Contract Documents and which
CONTRACTOR could not reasonably have been expected to be aware of. If the parties are unable to agree
as to the amount or length thereof, CONTRACTOR may make a claim therefor as provided in Articles 11 and
12.
Reference Points:
4.4. OWNER shall provide Engineering sUNeys to establish reference points for construction which
in PROFESSIONAL's judgment are necessary to enable CONTRACTOR to proceed with the Work.
CONTRACTOR shall be responsible for laying out the Work (unless otherwise specified in the General
Requirements), shall protect and preseNe the established reference points and shall make no changes or
relocations without the prior written approval of OWNER. CONTRACTOR shall report to PROFESSIONAL
whenever any reference point is lost or destroyed or requires relocation because of necessary changes in
grades or locations, and shall be responsible for the accurate replacement or relocation of such reference
points by professionally qualified personnel.
GC-9
Page 9 of 52
Asbestos, PCBs, Petroleum, Hazardous Waste or Radioactive Material:
Revision Date
August 2001
4.5 OWNER shall be responsible for any Asbestos, PCBs, Petroleum, Hazardous Waste or
Radioactive Material uncovered or revealed at the site which was not shown or indicated in Drawings or
Specifications or identified in the Contract Documents to be within the scope of the Work and which may
present a substantial danger to persons or property exposed thereto in connection with the Work at the site.
OWNER shall not be responsible for any such materials brought to the site by CONTRACTOR,
Subcontractor, Suppliers or anyone else for whom CONTRACTOR is responsible.
4.6 CONTRACTOR shall immediately: (i) stop all work in connection with such hazardous condition
and in any area affected thereby (except in an emergency as required by 6.22), and (ii) notify OWNER and
PROFESSIONAL (and thereafter confirm such notice in writing). OWNER shall promptly consult with
PROFESSIONAL concerning the necessity for OWNER to retain a qualified expert to evaluate such
hazardous condition or take corrective action, if any. CONTRACTOR shall not be required to resume Work
in connection with such hazardous condition or in any such affected area until after OWNER has obtained any
required permits related thereto and delivered to CONTRACTOR special written notice (i) specifying that such
condition and any affected area is or has been rendered safe for the resumption of Work, or (ii) specifying any
special conditions under which such Work may be resumed safely. If OWNER and CONTRACTOR cannot
agree as to entitlement to or the amount or extent of an adjustment, if any, in Contract Price or Contract Times
as a result of such Work stoppage or such special conditions under which Work is agreed by CONTRACTOR
to be resumed, either party may make a claim therefor as provided in Articles 11 and 12.
4.7 If after receipt of such special written notice, CONTRACTOR does not agree to resume such
Work based on a reasonable belief it is unsafe, or does not agree to resume such Work under such special
conditions, then CONTRACTOR may order such portion of the Work that is in connection with such hazardous
conditions or in such affected area to be deleted from the Work. If OWNER and CONTRACTOR cannot
agree as to entitlement to or the amount or extent of an adjustment, if any, in Contract Price or Contract Times
as a result of deleting such portion of the Work, then either party may make a claim therefor as provided in
Articles 11 and 12. OWNER may have deleted such portion of the Work performed by OWNER's own forces
or others in accordance with Article 7.
4.7.1 The provisions of 4.2 and 4.3 are not intended to apply to Asbestos, PCBs, Petroleum,
Hazardous Waste or Radioactive Material uncovered or revealed at the site.
GC-10
Page 10 of 52
Revision Date
August 2001
ARTICLE 5-BONDS AND INSURANCE
Performance and Other Bonds:
5.1. CONTRACTOR shall furnish performance and payment Bonds, each in an amount at least equal
to the Contract Price as Security for the faithful performance and payment of all CONTRACTOR's obligations
under the Contract Documents. These Bonds shall remain in effect at least until one year after the date when
final payment becomes due, except as otherwise provided by Law or Regulation or by the Contract
Documents. CONTRACTOR shall also furnish such other Bonds as are required by the Supplementary
Conditions. All Bonds shall be in the forms prescribed by Law or Regulation or by the Contract Documents
and be executed by such sureties as are named in the current list of "Companies Holding Certificates of
Authority as Acceptable Sureties on Federal Bonds, and as Acceptable Reinsuring Companies" as published
in Circular 570 (amended) by the Audit Staff Bureau of Accounts, U.S. Treasury Department. All Bonds
signed by an agent must be accompanied by a certified copy of the authority to act.
Licensed Sureties and Insurers; Certificates of Insurance
5.2.1 All bonds and insurance required by the Contract Documents to be purchased and maintained
by CONTRACTOR shall be obtained from surety or insurance companies that are duly licensed or authorized
in the State of Georgia to issue bonds or insurance policies for the limits and coverages so required. All bonds
signed by an agent must be accompanied by a certified copy of authority to act. Such surety and insurance
companies shall also meet such additional requirements and qualifications as may be provided in the
Supplementary Conditions.
5.2.2. CONTRACTOR shall deliver to OWNER, with copies to each additional insured identified in
5.3, an original or a certified copy of the complete insurance policy for each policy required, certificates of
insurance (and other evidence of insurance requested by OWNER or any other additional insured) which
CONTRACTOR is required to purchase and maintain in accordance with 5.3.
5.2.3. If the surety on any Bond furnished by CONTRACTOR is declared bankrupt or becomes
insolvent or its right to do business is terminated in any state where any part of the Project is located or it
ceases to meet the requirements of paragraph 5.1, CONTRACTOR shall within five days thereafter substitute
another Bond and Surety, both of which must be acceptable to OWNER.
CONTRACTOR's Liability Insurance:
5.3. CONTRACTOR shall purchase and maintain such comprehensive general liability and other
insurance as is appropriate for the Work being performed and furnished and as will provide protection from
claims set forth below which may arise out of or result from CONTRACTOR's performance and furnishing of
the Work and CONTRACTOR's other obligations under the Contract Documents, whether it is to be performed
or furnished by CONTRACTOR, by any Subcontractor, by anyone directly or indirectly employed by any of
them to perform or furnish any of the Work, or by anyone for whose acts any of them may be liable:
5.3.1. Claims under workers' or workmen's compensation, disability benefits and other similar
employee benefit acts;
5.3.2. Claims for damages because of bodily injury, occupational sickness or disease, or death of
CONTRACTOR's employees;
GC-11
Page 11 of 52
Revision Date
August 2001
5.3.3. Claims for damages because of bodily injury, sickness or disease, or death of any person other
than CONTRACTOR's employees;
5.3.4. Claims for damages insured by personal injury liability coverage which are sustained (a) by any
person as a result of an offense directly or indirectly related to the employment of such person by
CONTRACTOR, or (b) by any other person for any other reason;
5.3.5. Claims for damages, other than to the Work itself, because of injury to or destruction of
tangible property wherever located, including loss of use resulting therefrom;
5.3.6. Claims arising out of operation of Laws or Regulations for damages because of bodily injury
or death of any person or for damage to property; and
5.3.7. Claims for damages because of bodily injury or death of any person or property damage arising
out of the OWNERSHIP, maintenance or use of any motor vehicle.
The insurance required by this paragraph 5.3 shall include the specific coverage's and be written for not less
than the limits of liability and coverage's provided in the Supplementary Conditions, or required by law,
whichever is greater. The comprehensive general liability insurance shall include completed operations
insurance. All of the policies of insurance so required to be purchased and maintained (or the certificates or
other evidence thereof) shall contain a provision or endorsement that the coverage afforded will not be
canceled, materially changed or renewal refused until at least thirty days prior written notice has been given
to OWNER, PROGRAM MANAGER, and PROFESSIONAL by certified mail. All such insurance shall remain
in effect until final payment and at all times thereafter when CONTRACTOR may be correcting, removing or
replacing defective Work in accordance with paragraph 13.12. In addition, CONTRACTOR shall maintain
such completed operations insurance for at least two years after final payment and furnish OWNER with
evidence of continuation of such insurance at final payment and one year thereafter.
Contractual Liability Insurance:
5.4. The comprehensive general liability insurance required by paragraph 5.3 will include contractual
liability insurance applicable to CONTRACTOR's obligations under paragraphs 6.32 and 6.33.
OWNER's Liability Insurance:
5.5. OWNER shall be responsible for purchasing and maintaining OWNER's own liability insurance,
and/or Risk Retention Program, and, at OWNER's option, may purchase and maintain such insurance as will
protect OWNER against claims which may arise from operations under the Contract Documents.
Property Insurance:
5.6. Unless otherwise provided in the Supplementary Conditions, OWNER shall purchase and
maintain property insurance upon the Work at the site to the full insurable value thereof (subject to such
deductible amounts as may be provided in the Supplementary Conditions or required by Laws and
Regulations). This insurance shall include the interests of OWNER, CONTRACTOR, Subcontractors,
PROGRAM MANAGER, PROFESSIONAL and PROFESSIONAL's consultants in the Work, all of whom shall
be listed as insureds or additional insured parties, shall insure against the perils of fire and extended coverage
and shall include "all risk" insurance for physical loss and damage including theft, vandalism and malicious
mischief, collapse and water damage, and such other perils as may be provided in the Supplementary
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Revision Date
August 2001
Conditions, and shall include damages, losses and expenses arising out of or resulting from any insured loss
or incurred in the repair or replacement of any insured property (including but not limited to fees and charges
of PROFESSIONALs, architects, attorneys and other PROFESSIONALs). If not covered under the "all risk"
insurance or otherwise provided in the Supplementary Conditions, CONTRACTOR shall purchase and
maintain similar property insurance on portions of the Work stored on and off the site or in transit when such
portions of the Work are to be included in an Application for Payment.
5.7. OWNER shall purchase and maintain such boiler and machinery insurance or additional property
insurance as may be required by the Supplementary Conditions or Laws and Regulations which will include
the interests of OWNER, CONTRACTOR, Subcontractors, PROFESSIONAL AND PROFESSIONAL's
consultants in the Work, all of whom shall be listed as insured or additional insured parties.
5.8. All the policies of insurance (or the certificates or other evidence thereof) required to be
purchased and maintained by OWNER in accordance with paragraphs 5.6 and 5.7 will contain a provision or
endorsement that the coverage afforded will not be canceled or materially changed or renewal refused until
at least thirty days prior written notice has been given to CONTRACTOR by certified mail and will contain
waiver provisions in accordance with paragraph of 5.11 .2.
5.9. OWNER shall not be responsible for purchasing and maintaining any property insurance to
protect the Interests of CONTRACTOR, Subcontractors or others in the Work to the extent of any deductible
amounts that are provided in the Supplementary Conditions. The risk of loss within the deductible amount will
be borne by CONTRACTOR, Subcontractor or others suffering any such loss, and if any of them wishes
property insurance coverage within the limits of such amounts, each may purchase and maintain it at the
purchaser's own expense.
5.10. If CONTRACTOR requests in writing that other special insurance be included in the property
insurance policy, OWNER shall, if possible, include such insurance, and the cost thereof will be charged to
CONTRACTOR by appropriate Change Order or Written Amendment. Prior to commencement of the Work
at the site, OWNER shall in writing advise CONTRACTOR whether or not such other insurance has been
procured by OWNER.
Waiver of Rights:
5.11.1. OWNER and CONTRACTOR waive all rights against each other for all losses and damages
caused by any of the perils covered by the policies of insurance provided in response to paragraphs 5.6 and
5.7 and other property insurance applicable to the Work, and also waive all such rights against the
Subcontractors, PROFESSIONAL, PROFESSIONAL's consultants and all other parties named as insureds
in such policies for losses and damages so caused. As required by paragraph 6.11 , each subcontract between
CONTRACTOR and a Subcontractor will contain similar waiver provisions by the Subcontractor in favor of
OWNER, CONTRACTOR, PROFESSIONAL, PROFESSIONAL's consultants and all other parties named as
insureds. None of the above waivers shall extend to the rights that any of the insured parties may have to the
proceeds of insurance held by OWNER as trustee or otherwise payable under any policy so issued.
5.11.2. OWNER and CONTRACTOR intend that policies provided in response to paragraphs 5.6 and
5.7 shall protect all of the parties insured and provide primary coverage for all losses and damages caused
by the perils covered thereby. Accordingly, all such policies shall contain provisions to the effect that in the
event of payment of any loss or damage the insurer will have no rights of recovery against any of the parties
named as insureds or additional insureds, and if the insurers require separate waiver forms to be signed by
PROFESSIONAL or PROFESSIONAL's consultant, OWNER will obtain the same, and if such waiver forms
are required of any Subcontractor, CONTRACTOR will obtain the same.
GC-13
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Revision Date
August 2001
Receipt and Application of Proceeds:
5.12. Any insured loss under the policies of insurance required by paragraphs 5.6 and 5.7 will be
adjusted with OWNER and made payable to OWNER as trustee for the insureds, as their interests may
appear, subject to the requirements of any applicable mortgage clause and of paragraph 5.13. OWNER shall
deposit in a separate account any money so received and shall distribute it in accordance with such
agreement as the parties in interest may reach. If no other special agreement is reached, the damaged Work
shall be repaired or replaced, the moneys so received applied on account thereof, and the Work and the cost
thereof covered by an appropriate Change Order or Written Amendment.
Receipt and Application of Insurance Proceeds
5.13. OWNER, as trustee, shall have power to adjust and settle any loss with the insurers unless one
of the parties in interest shall object in writing within fifteen days after the occurrence of loss to OWNER's
exercise of this power. If such objection be made, OWNER, as trustee, shall make settlement with the
insurers in accordance with such agreement as the parties in interest may reach. If required in writing by any
party in interest, OWNER as trustee shall, upon the occurrence of an insured loss, give bond for the proper
performance of such duties.
Acceptance of Insurance: '
5.14. If OWNER has any objection to the coverage afforded by or other provisions of the insurance
required to be purchased and maintained by CONTRACTOR in accordance with paragraphs 5.3 and 5.4 on
the basis of its not complying with the Contract Documents, OWNER shall notify CONTRACTOR in writing
thereof within ten days of the date of delivery of such certificates to OWNER in accordance with paragraph
2.7. If CONTRACTOR has any objection to the coverage afforded by or other provisions of the policies of
insurance required to be purchased and maintained by OWNER in accordance with paragraphs 5.6 and 5.7
on the basis of their not complying with the Contract Documents, CONTRACTOR shall notify OWNER in
writing thereof within ten days of the date of delivery, of such certificates to CONTRACTOR in accordance
with paragraph 2.7. OWNER and CONTRACTOR shall each provide to the other such additional information
in respect of insurance provided by each as the other may reasonably request. Failure by OWNER or
CONTRACTOR to give any such notice of objection within the time provided shall constitute acceptance of
such insurance purchased by the other as complying with the Contract Documents.
Partial Utilization-Property Insurance:
5.15. If OWNER finds it necessary to occupy or use a portion or portions of the Work prior to
Substantial Completion of all the Work, such use or occupancy may be accomplished in accordance with
paragraph 14.10 provided that no such use or occupancy shall commence before the insurers providing the
property insurance have acknowledged notice thereof and in writing effected the changes in coverage neces-
sitated thereby. The insurers providing the property insurance shall consent by endorsement on the policy or
policies, but the property insurance shall not be canceled or lapse on account of any such partial use or
occupancy.
Indemnification
5.16.1. CONTRACTOR shall indemnify and hold harmless OWNER, PROGRAM MANAGER, and
its employees and agents from and against all liabilities, claims, suits, demands, damages, losses, and
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expenses, including attorneys' fees, arising out of or resulting from the performance of its Work, provided that
any such liability, claim, suit, demand, damage, loss, or expense (a) is attributable to bodily injury, sickness,
disease or death, or injury to or destruction of tangible property, including the loss of use resulting therefrom
and (b) is caused in whole or in part by an act or omission of CONTRACTOR, any Subcontractor, anyone
directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, whether
or not it is caused in whole or in part by the negligence or other fault of a party indemnified hereunder.
5.16.2. In any and all claims against OWNER or any of its agents or employees by any employee of
CONTRACTOR, any SUBCONTRACTOR, anyone directly or indirectly employed by any of them, or anyone
for whose acts any of them may be liable, the indemnification obligation under the previous paragraph shall
not be limited in any way as to the amount or type of damages, compensation or benefits payable by or for
CONTRACTOR or any SUBCONTRACTOR under workmen's compensation acts, disability benefit acts, or
other employee benefit acts.
5.16.3. CONTRACTOR shall indemnify and hold harmless OWNER and anyone directly or indirectly
employed by it from and against all claims, suits, demands, damages, losses expenses (including attorneys'
fees) arising out of any infringement on patent or copyrights held by others and shall defend all such claims
in connection with any alleged infringement of such rights.
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ARTICLE 6--CONTRACTOR'S RESPONSIBILITIES
6.1. CONTRACTOR shall supeNise and direct the Work competently and efficiently, devoting such
attention thereto and applying such skills and expertise as may be necessary to perform the Work in
accordance with the Contract Documents. CONTRACTOR shall be solely responsible for the means,
methods, techniques, sequences and procedures of construction, but CONTRACTOR shall not be responsible
for the negligence of others in the design or specification of a specific means, method, technique, sequence
or procedure of construction which is shown or indicated in and expressly required by the Contract
Documents. CONTRACTOR shall be responsible to see that the finished Work complies accurately with the
Contract Documents.
6.2. CONTRACTOR shall keep on the Work, at all times during its progress, a competent resident
superintendent, who shall not be replaced without written notice to OWNER and PROFESSIONAL except
under extraordinary circumstances. The superintendent will be CONTRACTOR's representative at the site
and shall have authority to act on behalf of CONTRACTOR. All communications to the superintendent shall
be as binding as if given to CONTRACTOR.
Labor, Materials and Equipment:
6.3. CONTRACTOR shall provide competent, suitably qualified personnel to sUNey and layout the
Work and perform construction as required by the Contract Documents. CONTRACTOR shall at all times
maintain good discipline and order at the site. Except in connection with the safety or protection of persons
or the Work or property at the site or adjacent thereto, and except as otherwise indicated in the Contract
Documents, all Work at the site shall be performed during regular working hours, and CONTRACTOR will not
permit evening work.or the performance of Work on Saturday, Sunday or any legal holiday without OWNER's
written consent given after prior written notice to PROFESSIONAL.
6.4. Unless otherwise specified in the General Requirements, CONTRACTOR shall furnish and
assume full responsibility for all materials, equipment, labor, transportation, construction equipment and'
machinery, tools, appliances, fuel, power, light" heat, telephone, water, sanitary facilities, temporary facilities
and all other facilities and incidentals whether temporary or permanent necessary for the execution, testing,
initial operation, and completion of the Work as required by the Contract Documents.
6.5. All materials and equipment shall be of good quality and new, except as otherwise provided in
the Contract Documents. If required by PROFESSIONAL, CONTRACTOR shall furnish satisfactory evidence '
(including reports of required tests) as to the kind and quality of materials and equipment. All materials and
equipment shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with
the instructions of the applicable Supplier except as otherwise provided in the Contract Documents; but no
provision of any such instructions will be effective to assign to PROFESSIONAL, or any of PROFESSIONAL's
consultants, agents or employees, any duty or authority to supeNise or direct the furnishing or performance
of. the Work or any duty or authority to undertake responsibility contrary to the provisions of paragraph 9.14
or 9.15.
Adjusting Progress Schedule:
6.6. CONTRACTOR shall submit to PROFESSIONAL for acceptance to the extent indicated in
paragraph 2.9 adjustments in the progress schedule to reflect the impact thereon of new developments;
these will conform generally to the progress schedule then in effect and additionally will comply with any
provisions of the General Requirements applicable thereto.
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Substitutes or "Or-Equal" Items:
6.7.1. Whenever materials or equipment are specified or described in the Contract Documents by
using the name of a proprietary item or the name of a particular Supplier, the naming of the item is intended
to establish the type, function and quality required. Unless the name is followed by words indicating that no
substitution is permitted, materials or equipment of other Suppliers may be accepted by PROFESSIONAL if
sufficient information is submitted by CONTRACTOR to allow PROFESSIONAL to determine that the material
or equipment proposed is equivalent or equal to that named. The procedure for review by PROFESSIONAL
will include the following as supplemented in the General Requirements. Requests for review of substitute
items of material and equipment will not be accepted by PROFESSIONAL from anyone other than
CONTRACTOR. If CONTRACTOR wishes to furnish or use a substitute item of material or equipment,
CONTRACTOR shall make written application to PROFESSIONAL for acceptance thereof, certifying that the
proposed substitute will perform adequately the functions and achieve the results called for by the general
design, be similar and of equal substance to that specified and be suited to the same use as that specified.
The application will state that the evaluation and acceptance of the proposed substitute will not prejudice
CONTRACTOR's achievement of Substantial Completion on time, whether or not acceptance of the substitute
for use in the Work will require a change in any of the Contract Documents (or in the provisions of any other
direct contract with OWNER for work on the Project) to adapt the design to the proposed substitute and
whether or not incorporation or use of the substitute in connection with the Work is subject to payment of any
license fee or royalty. All variations of the proposed substitute from that specified will be identified in the
application and available maintenance, repair and replacement seNice will be indicated. The application will
also contain an itemized estimate of all costs that will result directly or indirectly from acceptance of such
substitute, including costs of redesign and claims of other contractors affected by the resulting change, all of
which shall be considered by PROFESSIONAL. In evaluating the proposed substitute, PROFESSIONAL may
require CONTRACTOR to furnish, at CONTRACTOR's expense, additional data about the proposed
substitute.
6.7.2. If a specific means, method, technique, sequence or procedure of construction is indicated in
or required by the Contract Documents, CONTRACTOR may furnish or utilize a substitute means, method,
sequence, technique or procedure of construction acceptable to PROFESSIONAL, if CONTRACTOR submits
sufficient information to allow PROFESSIONAL to determine that the substitute proposed is equivalent to that
indicated or required by the Contract Documents. The procedure for review by PROFESSIONAL will be similar
to that provided in paragraph 6.7.1 as applied by PROFESSIONAL and as may be supplemented in the Gen-
eral Requirements.
6.7.3. PROFESSIONAL will be allowed a reasonable time within which to evaluate each proposed
substitute. PROFESSIONAL will be the sole judge of acceptability and no substitute will be ordered, installed
or utilized without PROFESSIONAL's prior written acceptance which will be evidenced by either a Change
Order or an approved Shop Drawing. OWNER may require CONTRACTOR to furnish, at CONTRACTOR's
expense, a special performance guarantee or other surety with respect to any substitute. PROFESSIONAL
will record time required by PROFESSIONAL and PROFESSIONAL's consultants in evaluating substitutions
proposed by CONTRACTOR and in making changes in the Contract Documents occasioned thereby.
Whether or not PROFESSIONAL accepts a proposed substitute, CONTRACTOR shall reimburse OWNER
for the charges of PROFESSIONAL and PROFESSIONAL's consultants for evaluating each proposed
substitute.
Concerning Subcontractors, Suppliers and Others:
6.8.1. CONTRACTOR shall not employ any Subcontractor, Supplier or other person or organization
(including those acceptable to OWNER and PROFESSIONAL as indicated in paragraph 6.8.2) whether initially
or as a substitute, against whom OWNER or PROFESSIONAL may have reasonable objection.
CONTRACTOR shall not be required to employ any Subcontractor, Supplier orother person or organization
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to furnish or perform any of the Work against whom CONTRACTOR has reasonable objection.
613.2. If the Supplementary Conditions require the identity of certain Subcontractors, Suppliers or
other persons or organizations including those who are to furnish the principal items of materials and
equipment to be submitted to OWNER prior to the Effective Date of the Agreement for acceptance by
OWNER and PROFESSIONAL and if CONTRACTOR has submitted a list thereof in accordance with the
Supplementary Conditions, OWNER's or PROFESSIONAL's acceptance (either in writing or by failing to make
written objection thereto by the date indicated for acceptance or objection in the bidding documents or the
Contract Documents) of any such Subcontractor, Supplier or other person or organization so identified may
be revoked on the basis of reasonable objeCtion after due investigation, in which case CONTRACTOR shall
submit an acceptable substitute, the Contract Price will be increased by the difference, and the cost
occasioned by such substitution and an appropriate Change Order will be issued or Written Amendment
signed. No acceptance by OWNER or PROFESSIONAL of any such Subcontractor, Supplier or other person
or organization shall constitute a waiver of any right of OWNER or PROFESSIONAL to reject defective Work.
6.9. CONTRACTOR shall be fully responsible to OWNER and PROFESSIONAL for all acts and
omissions of the Subcontractors, Suppliers and other persons and organizations performing or furnishing any
of the Work under a direct or indirect contract with CONTRACTOR just as CONTRACTOR is responsible for
CONTRACTOR's own acts and omissions. Nothing in the Contract Documents shall create any contractual
relationship between OWNER or PROFESSIONAL and any such Subcontractor, Supplier or other person or
organization, nor shall it create any obligation on the part of OWNER or PROFESSIONAL to payor to see to
the payment of any moneys due any such Subcontractor, Supplier or other person or organization except as
may otherwise be required by Laws and Regulations.
6.10. The divisions and sections of the Specifications and the identifications of any Drawings shall
not control CONTRACTOR in dividing tl)e Work among Subcontractors or Suppliers or delineating the Work
to be performed by any specific trade.
6.11. All Work performed for CONTRACTOR by a Subcontractor will be pursuant to an appropriate
agreement between CONTRACTOR and the Subcontractor which specifically binds the Subcontractor to the
applicable terms and conditions of the Contract Documents for the benefit of OWNER and PROFESSIONAL
and contains waiver provisions as required by paragraph 5.11 . CONTRACTOR shall pay each Subcontractor
a just share of any insurance moneys received by CONTRACTOR on account of losses under policies issued
pursuant to paragraphs 5.6 and 5.7.
Patent Fees and Royalties:
6.12. CONTRACTOR shall pay all license fees and royalties and assume all costs incident to the use
in the performance of the Work or the incorporation in the Work of any invention, design, process, product
or device which is the subject of patent rights or copyrights held by others. CONTRACTOR shall indemnify
and hold harmless OWNER and PROFESSIONAL and anyone directly or indirectly employed by either of
, them from and against all claims, damages, losses and expenses including, attorneys' fees and court and
arbitration costs arising out of any infringement on patent rights or copyrights incident to the use in the
performance of the Work or resulting from the incorporation in the Work of any invention, design, process,
product or device not specified in the Contract Documents, and shall defend all such claims in connection with
any alleged infringement of such rights.
Permits:
6.13. CONTRACTOR shall obtain and pay for all construction permits, licenses, governmental
charges and inspection fees, and all public utility charges which are applicable and necessary for the
execution of the Work. All permit costs shall be included in the base bid. Permits, if any, that are provided and
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paid for by OWNER are listed in the Supplementary Conditions. Any delays associated with the permitting
process will be considered for time extensions only and no damages or additional compensation for delay will
be allowed.
Laws and Regulations:
6.14.1. CONTRACTOR shall give all notices and comply with all Laws and Regulations applicable
to furnishing and performance of the Work. Except where otherwise expressly required by applicable Laws
and Regulations, neither OWNER nor PROFESSIONAL shall be responsible for monitoring CONTRACTOR's
compliance with any Laws or Regulations.
6.14.2. If CONTRACTOR obseNes that any of the Contract Documents are contradictory to such
laws, rules, and regulations, it will notify the Project Manager promptly in writing. Any necessary changes shall
then be adjusted by an appropriate Change Order. If CONTRACTOR performs any Work that it knows or
should have known to be contrary to such laws, ordinances, rules, and regulations and without such notice
to the Project Manager, it shall bear all related costs.
Taxes:
6.15. CONTRACTOR shall pay all sales, consumer, use and other similar taxes required to be paid
in accordance with the Laws and Regulations of the place of the Project which are applicable during the
performance of the Work.
Use of Premises:
6.16. CONTRACTOR shall confine construction equipment, the storage of materials and equipment
and the operations of workers to the Project site and land and areas identified in and permitted by the Contract
Documents and other land and areas permitted by Laws and Regulations, rights-of-way, permits and
easements. CONTRACTOR shall not unreasonably encumber the premises with construction equipment or
other materials or equipment. Any loss or damage to CONTRACTOR's or any Subcontractor's equipment is
solely at the risk of CONTRACTOR. CONTRACTOR shall assume full responsibility for any damage to any
such land or area, or to the OWNER or occupant thereof or of any land or areas contiguous thereto, resulting
from the performance of the Work. Should any claim be made against OWNER or PROFESSIONAL by any
such OWNER or occupant because of the performance of the Work, CONTRACTOR shall promptly attempt
to settle with such other P?rty by agreement or otherwise resolve the claim by arbitration or at law.
CONTRACTOR shall, to the fullest extent permitted by Laws and Regulations, indemnify and hold OWNER
harmless from and against all claims, damages, losses and expenses (including, but not limited to, fees of
PROFESSIONALs, architects, attorneys and other professionals and court and arbitration costs) arising
directly, indirectly or consequentially out of any action, legal or equitable, brought by any such other party
against OWNER to the extent based on a claim arising out of CONTRACTOR's performance of the Work.
6.17. During the progress of the Work, CONTRACTOR shall keep the premises free from
accumulations of waste materials, rubbish and other debris or contaminants resulting from the Work. At the
completion of the Work, CONTRACTOR shall remove all waste materials, rubbish and debris from and about
the premises as well as all tools, appliances, construction equipment and machinery, and surplus materials,
and shall leave the site clean and ready for occupancy by OWNER. CONTRACTOR shall restore to original
condition all property not designated for alteration by the Contract Documents.
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6.18. CONTRACTOR shall not load nor permit any part of any structure to be loaded in any manner
that will endanger the structure, nor shall CONTRACTOR subject any part of the Work or adjacent property
to stresses or pressures that will endanger them.
Record Documents:
6.19. Contractor shall keep at the site and in good order one record copy of the Contr?ct Documents
and all Drawings and Specifications. These documents shall be annotated on a continuing basis to show all
changes made during the construction process. These shall be available to PROFESSIONAL and the Project
Manager and shall be submitted with the Application for Final Payment.
Safety and Protection:
6.20. CONTRACTOR shall be responsible for initiating, maintaining and supeNising all safety
precautions and programs in connection with the Work. CONTRACTOR shall assume all risk of loss for stored
equipment or materials, irrespective of whether CONTRACTOR has transferred the title of the stored
equipment or materials to OWNER. CONTRACTOR shall take all necessary precautions for the safety of,
and shall provide the necessary protection to prevent damage, injury or loss to:
6.20.1. all employees on the Work and other persons and organizations who may be affected
thereby;
6.20.2. all the Work and materials and equipment to be incorporated therein, whether in storage on
or off the site; and
6.20.3. other property at the site or adjacent thereto, including trees, shrubs, lawns, walks,
pavements, roadways, structures, utilities and Underground Facilities not designated for removal, relocation
or replacement in the course of construction.
CONTRACTOR shall comply with all applicable Laws and Regulations of any public body having jurisdiction
for the safety of persons or property or to protect them from damage, injury or loss; and shall erect and
maintain all necessary safeguards for such safety and protection. CONTRACTOR shall notify OWNERs of
adjacent property and of Underground Facilities and utility OWNERs when prosecution of the Work may affect
them, and shall 'Cooperate with them in the protection, removal, relocation and replacement of their property.
All damage, injury or loss to any property referred to in paragraph 6.20.2 or 6.20.3 caused, directly or'
indirectly, in whole or in part, by CONTRACTOR, any Subcontractor, Supplier or any other person or
organization directly or indirectly employed by any of them to perform or furnish any of the Work or anyone
for whose acts any of them may be liable, shall be remedied by CONTRACTOR (except damage or loss
attributable to the fault of Drawings or Specifications or to the acts or omissions of OWNER or
PROFESSIONAL or anyone employed by either of them or anyone for whose acts either of th_em may be '
liable, and not attributable, directly or indirectly, in whole orin part, to the fault or negligence of CON-
TRACTOR). CONTRACTOR's duties and responsibilities for the safety and protection of the Work shall
continue until such time as all the Work is completed and PROFESSIONAL has issued a notice to OWNER
and CONTRACTOR in accordance, with paragraph 14.13 that the Work is acceptable (except as otherwise
expressly provided in connection with Substantial Completion).
6.21. CONTRACTOR shall designate a responsible member of its organization whose duty shall be the
prevention of accidents at the site. This person shall be CONTRACTOR's superintendent unless otherwise
designated in writing by CONTRACTOR to the Project Manager.
Emergencies:
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6.22. In emergencies affecting the safety or protection of persons or the Work or property at the site
or adjacent thereto, CONTRACTOR, without special instruction or authorization from PROFESSIONAL or
OWNER, is obligated to act to prevent threatened damage, injury or loss. CONTRACTOR shall give
PROFESSIONAL prompt written notice if CONTRACTOR believes that any significant changes in the Work
or variations from the Contract Documents have been caused thereby. If PROFESSIONAL determines that
a change in the Contract Documents is required because of the action taken in response to an emergency,
a Work Change Directive or Change Order be issued to document the consequences of the changes or
variations.
6.22.1. CONTRACTOR shall immediately notify PROFESSIONAL of all events involving injuries to
any person on the Site, whether or not such person was engaged in the construction of the Project, and shall
file a written report on such person(s) and any other event resulting in property damage of any amount within
five (5) days of the occurrence.
6.22.2. If PROFESSIONAL determines that a change in the Contract Documents is required because
of the action taken by CONTRACTOR in response to such an emergency, a Change Order will be issued to
document the consequences of such action.
Shop Drawings and Samples:
6.23. After checking and verifying all field measurements, CONTRACTOR shall promptly submit to
PROFESSIONAL for approval, in accordance with the accepted schedule of submittals, all submittals and
samples required by the Contract Documents. All submittals and samples shall have been checked by and
stamped with the approval of CONTRACTOR and identified as PROFESSIONAL may require. The data
shown on or with the submittals will be complete with respect to dimensions, design criteria, materials and any
other information necessary to enable PROFESSIONAL to review the submittal as required. At the time of
each submission, CONTRACTOR shall give notice to PROFESSIONAL of all deviations that the submittal or
sample may have from the requirements of the Contract Documents.
6.24. PROFESSIONAL shall review and approve submittals and samples. Professional's review and
approval shall be only for conformance with the design concept of the Project and compliance with the
information given in the Contract Documents. The approval of a separate item as such will not indicate
approval of the assembly in which the item functions. CONTRACTOR will make any corrections required by
PROFESSIONAL and resubmit the required number of corrected copies until approved. CONTRACTOR's
stamp of approval on any submittal or sample shall constitute its representation to PROFESSIONAL and
OWNER that CONTRACTOR has determined and verified all quantities, dimensions, field construction
criteria, materials, catalog numbers, and similar data, and that each submittal or sample has been reviewed
or coordinated with the requirements of the Work and the Contract Documents.
6.24.1. No Work requiring a submittal or sample submission shall commence until the submission
has been approved by PROFESSIONAL. A copy of each approved submittal and each approved sample shall
be kept in good order by CONTRACTOR at the site and shall be available to PROFESSIONAL and OWNER.
Any delays associated with the submittal process will be considered for time extensions only, and no
damages or additional compensation for delay will be allowed.
6.24.2. Before submission of each Shop Drawing or sample, CONTRACTOR shall have determined
and verified all quantities, dimensions, specified performance criteria, installation requirements, materials,
catalog numbers and similar data with respect thereto and reviewed or coordinated each Shop Drawing or
sample with other Shop Drawings and samples and with the requirements of the Work and the Contract
Documents.
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6.24.3. At the time of each submission, CONTRACTOR shall give PROFESSIONAL specific written
notice of each variation that the Shop Drawings or samples may have from the requirements of the Contract
Documents, and, in addition, shall cause a specific notation to be made on each Shop Drawing submitted to
PROFESSIONAL for review and approval of each such variation.
B.26. PROFESSIONAL will review and approve with reasonable promptness Shop Drawings and
samples, but PROFESSIONAL's review and approval will be only for conformance with the design concept
of the Project and for compliance with the information given in the Contract Documents and shall not extend
to means, methods, techniques, sequences or procedures of construction (except where a specific means,
method, technique, sequence or procedure of construction is indicated in or required by the Contract
Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item
as such will not indicate approval of the assembly in which the item functions.
6.27. PROFESSIONAL's approval of submittals or samples shall not relieve CONTRACTOR from
responsibility for any variation from the requirements of the Contract Documents unless CONTRACTOR has,
in writing, called PROFESSIONAL's attention to each such variation at the time of submission and the
OWNER has given written approval to the specific deviation; any such approval by PROFESSIONAL shall not
relieve CONTRACTOR from responsibility for errors or omissions in the submittals.
6.28. Where a shop drawing or sample is required by the Contract Documents or the schedule of
shop drawings and sample submissions accepted by PROFESSIONAL as required, any related work
performed prior to PROFESSIONAL's review and approval of the pertinent submittal" will be at the sole
expense and responsibility of CONTRACTOR.
Continuing the Work:
6.30. CONTRACTOR shall carry on the Work and adhere to the progress schedule during all
disputes or disagreements with OWNER. No Work shall be delayed or postponed pending resolution of any
disputes or disagreements, except as permitted by paragraph 15.6 or as CONTRACTOR and OWNER may.
otherwise agree in writing.
Cleaning Up:
6.31. CONTRACTOR shall maintain the site free from accumulations of waste materials, rubbish,
and other debris or contaminants resulting from the work on a daily basis or as required. At the completion
of the work, CONTRACTOR shall remove all waste materials, rubbish, and debris from the site as well as all
tools, construction equipment and machinery, and surplus materials and will leave the Site clean and ready
for occupancy by OWNER. All disposal shall be in accordance with applicable Laws and Regulations. In
addition to any other rights available to OWNER under the Contract Documents, CONTRACTOR's failure to
maintain the site may result in withholding of any amounts due CONTRACTOR. CONTRACTOR will restore
to original condition those portions of the site not designated for alteration by the Contract Documents.
Indemnification:
6.32. To the fullest extent permitted by Laws and Regulations, CONTRACTOR shall indemnify and
hold harmless OWNER, PROGRAM MANAGER and PROFESSIONAL and their consultants, agents and
employees from and against all claims, damages, losses and expenses, direct, indirect or consequential
(including but not limited to fees and charges of PROGRAM MANAGER, PROFESSIONALs, architects,
attorneys and other PROFESSIONALs and court and arbitration costs) arising out of or resulting from the
performance of the Work, provided that any such claim, damage, loss or expense (a) is attributable to bodily
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injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself)
including the loss of use resulting therefrom and (b) is caused in whole or in part by any negligent act or
omission of CONTRACTOR, any Subcontractor, any person or organization directly or indirectly employed
by any of them to perform or furnish any of the Work or anyone for whose acts any of them may be liable,
regardless of whether or not it is caused in part by a party indemnified hereunder or arises by or is imposed
by Law and Regulations regardless of the negligence of any such party.
6.33. In any and all claims against OWNER, PROGRAM MANAGER or PROFESSIONAL or any of
their consultants, agents or employees by any employee of CONTRACTOR, any Subcontractor, any person
or organization directly or indirectly employed by any of them to perform or furnish any of the Work or anyone
for whose acts any of them may be liable, the indemnification obligation under paragraph 6.32 shall not be
limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by
or for CONTRACTOR or any such Subcontractor or other person or organization under workers' or workmen's
compensation acts, disability benefit acts or other employee benefit acts.
6.34. The obligations of CONTRACTOR under paragraph 6.32 shall not extend to the liability of
PROFESSIONAL, PROFESSIONAL's consultants, agents or employees arising out of the preparation or
approval of maps, drawings, opinions, reports, sUNeys, Change Orders, designs or specifications.
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ARTICLE 7--0THER WORK
Related Work at Site:
7.1. OWNER may perform other work related to the Project at the site by OWNER's own forces,
have other work performed by aided OWNERs or let other direct contracts therefor which shall contain
General Conditions similar to these. If the fact that such other work is to be performed was not noted in the
Contract Documents, written notice thereof will be given to CONTRACTOR prior to starting any such other
work, and, if CONTRACTOR believes that such performance will involve additional expense to
CONTRACTOR or requires additional time and the parties are unable to agree as to the extent thereof,
CONTRACTOR may make a claim therefor as provided in Articles 11 and 12.
7.1.2. CONTRACTOR shall afford each utility OWNER and other contractor who is a party to such
a direct contract for OWNER, if OWNER is performing the additional work with OWNER's employees, proper
and safe access to the site and a reasonable opportunity for the introduction and storage of materials and
equipment and the execution of such work, and shall properly connect and coordinate the Work with theirs.
CONTRACTOR shall do all cutting, fitting and patching of the Work that may be required to make its several
parts come together properly and integrate with such other work. CONTRACTOR shall not endanger any work
of others by cutting, excavating or otherwise altering their work and will only cut or alter their work with the
written consent of PROFESSIONAL and the others whose work will be affected. The duties and
responsibilities of CONTRACTOR under this paragraph are for the benefit of such utility OWNERs and other
contractors to the extent that there are comparable provisions for the benefit of CONTRACTOR in said direct
contracts between OWNER and such utility OWNERs and other contractors.
7.2. If any part of CONTRACTOR's Work depends for proper execution or results upon the work of
any such other contractor or utility OWNER (or OWNER), CONTRACTOR shall inspect and promptly report
to PROFESSIONAL in writing any delays, defects or deficiencies in such work that render it unavailable or
unsuitable for such proper execution and results. CONTRACTOR's failure so to report will constitute an
acceptance of the other work as fit and proper for integration with CONTRACTOR's Work except for latent
or nonapparent defects and deficiencies in the other work.
Coordination:
7.4. If OWNER contracts with others for the pertormance of other work on the Project at the site, the
person or organization who will have authority and responsibility for coordination ofthe activities among the
various prime contractors will be identified in the Supplementary Conditions, and the specific matters to be
covered by such authority and responsibility will be itemized, and the extent of such authority and
responsibilities will be provided in the Supplementary Conditions. Unless otherwise provided in the
Supplementary Conditions, neither OWNER nor PROFESSIONAL shall have any authority or responsibility
in respect of such coordination.
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ARTICLE 8---0WNER'S RESPONSIBILITIES
8.1. Except as otherwise provided in these General Conditions, OWNER shall issue all
communications to CONTRACTOR through the PROGRAM MANAGER or PROFESSIONAL.
8.2. In case of termination of the employment of PROFESSIONAL, OWNER shall appoint a
PROFESSIONAL against whom CONTRACTOR makes no reasonable objection, whose status under the
Contract Documents shall be that of the former PROFESSIONAL. Any dispute in connection with such
appointment shall be subject to arbitration.
8.3. OWNER shall furnish the data required of OWNER under the Contract Documents promptly and
shall make payments to CONTRACTOR promptly after they are due as provided in paragraphs 14.4 and
14.13.
8.4. OWNER's duties in respect of providing lands and easements and providing Engineering ,
sUNeys to establish reference points are set forth in paragraphs 4.1 and 4.4. Paragraph 4.2 refers to
OWNER's identifying and making available to CONTRACTOR copies of reports of explorations and tests of
subsurface conditions at the site and in existing structures which have been utilized by PROFESSIONAL in
preparing the Drawings and Specifications.
8.5. OWNER's responsibilities in respect of purchasing and maintaining liability and property
insurance are set forth in paragraphs 5.5 through 5.8.
8.6. OWNER is obligated to execute Change Orders as indicated in paragraph 10.3.
8.7. OWNER's responsibility in respect of certain inspections, tests and approvals is set forth in
paragraph 13.4.
8.8. In connection with OWNER's right to stop Work or suspend Work, see paragraphs 13.10 and
15.1. Paragraph 15.2 deals with OWNER's right to terminate seNices of CONTRACTOR under certain
ci rcu m stances.
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ARTICLE 9---PROFESSIONAL'S STATUS DURING
CONSTRUCTION
OWNER's Representative:
9.1. PROFESSIONAL will be OWNER's representative during the construction period. The duties
and responsibilities and the limitations of authority of PROFESSIONAL as OWNER's representative during
construction are set forth in the Contract Documents and shall not be extended without written consent of
OWNER and PROFESSIONAL.
Visits to Site:
9.2. PROFESSIONAL will make visits to the site at inteNals appropriate to the various stages of
construction to obseNe the premises and quality of the executed Work and to determine, in general, if the
Work is proceeding in accordance with the Contract Documents. PROFESSIONAL will not be required to
make exhaustive or continuous on-site inspections to check the quality or quantity of the Work.
PROFESSIONAL's efforts will be directed toward providing for OWNER a greater degree of confidence that
the completed Work will conform to the Contract Documents. On the basis of such visits and on-site
obseNations as an experienced and qualified design PROFESSIONAL, PROFESSIONAL will keep OWNER
informed of the progress of the Work and will endeavor to guard OWNER against defects and deficiencies
in the Work. '
Project Representation:
9.3. If OWNER and PROFESSIONAL agree, PROFESSIONAL will furnish a Resident Project
, Representative to assist PROFESSIONAL in obseNing the performance of the Work. The duties,
responsibilities and limitations of authority of any such Resident Project Representative and assistants will be
as provided in the Supplementary Conditions. If OWNER designates another agent to represent OWNER at
the site who is not PROFESSIONAL's agent or employee, the duties, responsibilities and limitations of
authority of such other person will be as provided in the Supplementary Conditions.
Clarifications and Interpretations:
9.4. PROFESSIONAL shall issue such written clarifications or interpretations of the Contract
Documents (in the form of Drawings or otherwise) as may be determined necessary, or as reasonably
requested by CONTRACTOR, which shall be consistent with or reasonably inferable from the overall intent
of the Contract Documents. If CONTRACTOR believes that a written clarification and interpretation entitles
it to an increase in the Contract Price and/or Contract Time, CONTRACTOR may make a claim as provided
for in Articles 11 or 12.
Authorized Variations in Work:
9.5. PROFESSIONAL may authorize minor variations in the Work from the requirements of the
Contract Documents which do not involve an adjustment in the Contract Price or the Contract Time and are
consistent with the overall intent of the Contract Documents. These may be accomplished by a Field Order
and will be binding on OWNER and also on CONTRACTOR who shall perform the Work involved promptly.
If CONTRACTOR' believes that a Field Order justifies an increase in the Contract Price or an extension of the
Contract Time and the parties are unable to agree as tO,the amount or extent thereof, CONTRACTOR may
make a claim therefor as provided in Article 11 or 12.
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Rejecting Defective Work:
9.6. PROFESSIONAL will have authority to disapprove or reject Work which PROFESSIONAL
believes to be defective and will also have authority to require special inspection or testing of the Work as
provided in paragraph 13.9, whether or notthe Work is fabricated, installed or completed.
Shop Drawings, Change Orders and Payments:
9.7. In connection with PROFESSIONAL's responsibility for Shop Drawings and samples, see
paragraphs 6.23 through 6.29 inclusive.
9.8. In connection with PROFESSIONAL's responsibilities as to Change Orders, see Articles 10, 11
and 12.
9.9. In connection with PROFESSIONAL's responsibilities in respect of Applications for Payment,
etc., see Article 14.
Determinations for Unit Prices:
9.10. PROFESSIONAL will determine the actual quantities and classifications of Unit Price Work
performed by CONTRACTOR. PROFESSIONAL will review with CONTRACTOR PROFESSIONAL's
preliminary determinations on such matters before rendering a written decision thereon (by recommendation
of an Application for Payment or otherwise). PROFESSIONAL's written decisions thereon will be final and
binding upon OWNER and CONTRACTOR, unless, within ten days after the date of any such decision, either
OWNER or CONTRACTOR delivers to the other party to the Agreement and to PROFESSIONAL written
notice of intention to appeal from such a decision.
Decisions on Disputes:
9.11. PROFESSIONAL will be the initial interpreter of the requirements of the Contract Documents
and judge of the acceptability of the Work thereunder. Claims, disputes and other matters relating to the
acceptability of the Work or the interpretation of the requirements of the Contract Documents pertaining to
the performance and fumishing of the Work and claims under Articles 11 and 12 in respect of changes to the
Contract Price or Contract Time will be referred initially to PROFESSIONAL in writing with a request for a
formal decision in accordance with this paragraph, which PROFESSIONAL will render in writing within a
reasonable time. Written notice of each such claim, dispute and other matter will be delivered by the claimant
to PROFESSIONAL and the other party to the Agreement promptly (but in no event later than thirty days after
the occurrence of the event giving rise thereto) and written supporting data will be submitted to
PROFESSIONAL and the other party within sixty days after such occurrence unless PROFESSIONAL allows
an additional period of time to ascertain more accurate data in support of the claim. '
9.12. When functioning as interpreter and judge under paragraphs 9.10 and 9.11, PROFESSIONAL
will not show partiality to OWNER or CONTRACTOR and will not be liable in connection with any interpretation
or decision rendered in good faith in such capacity. The rendering of a decision by PROFESSIONAL pursuant
to paragraphs 9.10 and 9.11 with respect to any such claim, dispute or other matter (except any which have
been waived by the making or acceptance of final payment as provided in paragraph 14.16) will be a condition
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precedent to any exercise by OWNER or CONTRACTOR of such rights or remedies as either may otherwise
have under the Contract Documents or by Laws or Regulations in respect of any such claim, dispute or other
matter.
Limitations on PROFESSIONAL ~ Responsibilities:
9.13. Neither PROFESSIONAL's authority to act under this Article or elsewhere in the Contract
Documents nor any decision made in good faith to exercise such authority shall give rise to any duty or
responsibility of PROFESSIONAL to CONTRACTOR, any Subcontractor, any of their agents or employees.
9.14. PROFESSIONAL shall not be responsible for the construction means, methods, techniques,
sequences, or procedures or the safety precautions and programs used. PROFESSIONAL shall not be
responsible for CONTRACTOR's failure to perform the Work in accordance with the Contract Documents.
9.15. PROFESSIONAL shall not be responsible for the acts or omissions of CONTRACTOR, any
Subcontractors, any agents or employees, or any other persons performing any of the Work.
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ARTICLE 10-CHANGES IN THE WORK
10.1. Without invalidating the Contract, OWNER may at any time or from time to time order additions,
deletions, or revisions in the Work. The OWNER shall provide CONTRACTOR with a proposal request,
identifying the Work to be added, deleted or revised. Upon receipt, CONTRACTOR shall promptly submit a
written proposal for the changed work prepared in accordance with Articles 11 and 12. If the proposal request
calls only for the deletion of Work, the OWNER may order the partial suspension of any Work related to the
proposed deletio~, in which case CONTRACTOR must cease performance as directed; CONTRACTOR shall
not be entitled to claim lost profits on deleted work. All changed Work shall be executed under the applicable
conditions of the Contract Documents.
10.2. Additional Work performed by CONTRACTOR without authorization of a Change Order will not
entitle CONTRACTOR to an increase in the Contract Price or an extension of the Contract Time, except in
the case of an emergency as provided in Article 6. The effect of this paragraph shall remain paramount and
shall prevail irrespective of any conflicting provisions contained in these Contract Documents.
10.3. Upon agreement as to changes in the Work to be performed, Work performed in an emergency
as provided in Article 6, and any other claim of CONTRACTOR for a change in the Contract Time or the
Contract Price, PROFESSIONAL will prepare a written Change Order to be signed by PROFESSIONAL and
CONTRACTOR and submitted to OWNER for approval.
10.4. In the absence of an agreement as provided in 10.3, OWNER may, at its sole discretion, issue
a Work Change Directive to CONTRACTOR. Pricing of the Work Change Directive will be in accordance with
Section 11.3. The Work Change Directive will specify a price, and if applicable a time extension, determined
to be reasonable by OWNER. If CONTRACTOR fails to.sign such Work Change Directive, CONTRACTOR
may submit a claim in accordance with Articles 11 and 12, but CONTRACTOR shall nevertheless be obligated
to fully perform the work as directed by the Work Change Directive.
10.5. CONTRACTOR shall proceed diligently with performance of the Work as directed by OWNER,
regardless of pending claim actions, unless otherwise agreed to in writing.
10.6. If notice of any change affecting the general scope of the Work or the provisions of the Contract
Documents (including, but not limited to, Contract Price or Contract Time) is required by the provisions of any
Bond to be given to a surety, the giving of any such notice will be CONTRACTOR's responsibility, and the
amount of each applicable Bond will be adjusted accordingly.
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ARTICLE 11-CHANGE OF CONTRACT PRICE
11.1. The Contract Price constitutes the total compensation (subject to written authorized
adjustments) payable to CONTRACTOR for performing the Work. All duties, responsibilities and obligations
assigned to or undertaken by CONTRACTOR shall be at CONTRACTOR's expense without change in the
Contract Price.
11.2. The Contract Price may only be changed by a Change Order or by a Written Amendment. Any
claim for an increase or decrease in the Contract Price shall be based on written notice delivered by the party
making the claim to the other party and to PROFESSIONAL promptly (but in no event later than thirty days)
after the occurrence of the event giving rise to the claim and stating the general nature of the claim. Notice
of the amount of the claim with supporting data shall be delivered within sixty days after such occurrence
(unless PROFESSIONAL allows an additional period of time to ascertain more accurate data in support of
the claim) and shall be accompanied by claimant's written statement that the amount claimed covers all known
amounts (direct, indirect and consequential) to which the claimant is entitled as a result of the occurrence of
said event. All claims for adjustment in the Contract Price shall be determined by PROFESSIONAL in accor-
dance with paragraph 9.11 if OWNER and .CONTRACTOR cannot otherwise agree on the amount involved.
No claim for an adjustment in the Contract Price will be valid if not submitted in accordance with this
paragraph 11.2.
11.3. The value of any Work covered by a Change Order or of any claim for an-adjustment in the
Contract Price will be determined by the following procedures:
11 ;3.1. Designated Unit Price (Field Measure). CONTRACTOR and OWNER recognize and
acknowledge that the quantities shown for those items designated in the Bid Proposal as unit price items are
approximations prepared by OWNER for bid purposes and that the actual compensation payable to
CONTRACTOR for the utilization of such items is based upon the application of unit prices to the actual
quantities of items involved as measured in the field and required to complete the Work as originally defined
in the Contract Documents.
11.3.2. When it is determined by OWNER that an addition, deletion, or revision to the Work, as
defined in these Contract Documents, is required and affects the quantities required for items designed in the
Bid Proposal as unit price items, CONTRACTOR and OWNER agree that the compensation payable to
CONTRACTOR for such unit price items shall be adjusted accordingly by a Change Order based upon the
application of the appropriate unit prices shown in the Bid Proposal to the quantity of the unit price item
required to complete the Work as defined in the Contract Documents.
11.3.3. Other Unit Prices. For items not designated in the bid proposal as unit prices, OWNER and
CONTRACTOR may establish unit prices as agreed on by Change Order. '
11.3.4. Lump Sum. When it is determined by OWNER that an addition, deletion or revision to the
Work is required which results in a change in Work designated in the Bid Proposal as a lump sum item, the
amount of increase or decrease in the lump sum price shall be established by mutual agreement of the
parties.
11.3.5. If the pricing methods specified in 11.3 are inapplicable, or if the parties are unable to agree
on a price for the changed work, a reasonable price for the same shall be established by OWNER in
accordance with 11.4 and 11.5. OWNER shall then process a unilateral Change Order, specifying the said
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reasonable price, in accordance with 11.4 through 11.6. CONTRACTOR shall perform the Work as directed
in the Change Order. -
11.3.6. Failure on the part of CONTRACTOR to construct any item to plan or authorized dimensions
within the specification tolerances shall result in: reconstruction to acceptable tolerances at no additional costs
to OWNER; acceptance at no pay; or acceptance at reduced final pay quantity or reduced unit price, all at the
discretion of OWNER. Determinations of aggregate monetary change for items identified as lump sum
quantities shall be made by OWNER based upon an analysis of the scope of CONTRACTOR's failure to
construct to plan or authorized dimensions.
Cost of the Work:
11.4. The term Cost of the Work means the sum of all costs necessarily incurred and paid by
CONTRACTOR in the proper performance of the Work. Except as otherwise may be agreed to in writing by
OWNER, such costs shall be in amounts no higher than those prevailing in the locality of the Project, shall
include only the following items and shall not include any of the costs itemized in paragraph 11.5:
11.4.1. Payroll costs for employees in the direct employ of CONTRACTOR in the performance of the
Work under schedules of job classifications agreed upon by OWNER and CONTRACTOR. Payroll costs for
employees not employed full timeon the Work shall be apportioned on the basis of their time spent on the
Work. Payroll costs shall include, but not be limited to, salaries and wages plus the cost of fringe benefits
which shall include social security contributions, unemployment, excise and payroll taxes, workers' or
workmen's compensation, health and retirement benefits, bonuses, sick leave, vacation and holiday pay
applicable thereto. Such employees shall include superintendents and foremen at the site. The expenses of
performing Work after regular working hours, on Saturday, Sunday or lega~ holidays, shall be included in the
above to the extent authorized by OWNER.
11.4.2. Cost of all materials and equipment furnished and incorporated in the Work, including costs
of transportation and storage thereof, and Suppliers' field seNices required in connection therewith. All cash
discounts shall accrue to CONTRACTOR unless OWNER deposits funds with CONTRACTOR with which to
make payments, in which case the cash discounts shall accrue to OWNER. Trade discounts, rebates and
refunds and all returns from sale of surplus materials and equipment shall accrue to OWNER, and
CONTRACTOR shall make provisions so that they may be obtained.
11.4.3. Payments made by CONTRACTOR to the Subcontractors for Work performed by
Subcontractors. If required by OWNER, CONTRACTOR shall obtain competitive bids from Subcontractors
acceptable to CONTRACTOR and shall deliver such bids to OWNER who then determines, with the advice
of PROFESSIONAL, which bids will be accepted. If a subcontract provides that the Subcontractor is to be paid
on the basis of Cost of the Work Plus a Fee, the Subcontractor's Cost of the Work shall be determined in the
same manner as CONTRACTOR's Cost of the Work. All subcontracts shall be subject to the other provisions
of the Contract Documents insofar as applicable.
11 .4.4. Costs of special consultants (including but not limited to engineers, architects, testing
laboratories, sUNeyors, attorneys and accountants) employed for seNices specifically related to the Work.
11.4.5. Supplemental costs including the following:
11.4.5.1. The proportion of necessary transportation, travel and subsistence expenses of CONTRAC-
TOR's employees incurred in discharge of duties connected with the Work.
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11.4.5.2. Cost, including transportation and maintenance, of all materials, supplies, equipment,
machinery, appliances, office and temporary facilities at the site and hand tools not owned by the workers,
which are consumed in the performance of the Work, and cost less market value of such items used but not
consumed which remain the property of CONTRACTOR.
11.4.5.3. Rentals of all construction equipment and machinery and the parts thereof whether rented
from CONTRACTOR or others in accordance with rental agreements approved by OWNER with the advice
of PROFESSIONAL, and the costs of transportation, loading, unloading, installation, dismantling and removal
thereof-all in accordance with terms of said rental agreements. The rental of any such equipment, machinery
or parts shall cease when the use thereof is no longer necessary for the Work.
11.4.5.4. Sales, consumer, use or similar taxes related to the Work, and for which CONTRACTOR
is liable, imposed by Laws and Regulations.
11.4.5.5. Deposits lost for causes other than negligence of CONTRACTOR, any Subcontractor or
anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, and royalty
payments and fees for permits and licenses.
11.4.5.6. Losses and damages (and related expenses), not compensated by insurance or otherwise,
to the Work or otherwise sustained by CONTRACTOR in connection with the performance and furnishing of
the Work (except losses and damages within the deductible amounts of property insurance established by
OWNER in accordance with paragraph 5.6) provided they have resulted from causes other than the
negligence of CONTRACTOR, any Subcontractor, or anyone directly or indirectly employed by any of them.
. or for whose acts any of them may be liable. Such losses shall include settlements made with the written
consent and approval of OWNER. No such losses, damages and expenses shall be included in the Cost of
the Work for the purpose of determining CONTRACTOR's Fee. If, however, any such loss or damage requires
reconstruction and CONTRACTOR is placed in charge thereof, CONTRACTOR shall be paid for seNices a
fee proportionate to that stated in paragraph 11.6.2. .
11.4.5.7. The cost of utilities, fuel and sanitary facilities at the site.
11 .4.5.8. Minor expenses such as telegrams, long distance telephone calls, telephone seNice at the
site, expressage and similar petty cash items in connection with the Work.
11.4.5.9. Cost of premiums for additional Bonds and insurance required because of changes in the
Work and premiums of property insurance coverage within the limits of the deductible amounts established
by OWNER in accordance with paragraph 5.6.
11.5. The term Cost of the Work shall not include any of the following:
11.5.1. Payroll costs and other compensation of CONTRACTOR's officers, executives, principals (of
partnership and sole proprietorships), general managers, engineers, architects, estimators, attorneys,
auditors, accountants, purchasing and contracting agents, expeditors, timekeepers, clerks and other
personnel employed by CONTRACTOR whether at the site or in CONTRACTOR's principal or a branch office
for general administration of the Work and not specifically included in the agreed upon schedule of job
classifications referred to in paragraph 11 .4.1 or specifically covered by paragraph 11 .4.4-all of which are to
be considered administrative costs covered by CONTRACTOR's Fee.
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11.5.2. Expenses of CONTRACTOR's principal area branch offices other than CONTRACTOR's
office at the site.
11.5.3. Any part of CONTRACTOR's capital expenses, including interest on CONTRACTOR'S capital
used for the Change Order Work and charges against CONTRACTOR for delinquent payments.
11.5.4. Cost of premiums for all Bonds and for all insurance whether or not CONTRACTOR is
required by the Contract Documents to purchase and maintain the same (except for the cost of premiums
covered by subparagraph 11 A5.9 above).
11.5.5. Costs due to the negligence of CONTRACTOR, any Subcontractor, or anyone directly or
indirectly, employed by any of them or for whose acts any of them may be liable, including but not limited to,
the correction of defective Work, disposal of materials or equipment wrongly supplied and making good any
damage to property. _
11.5.6. Other overhead or general expense costs of any kind and the costs of any item not
specifically and expressly included in paragraph 11.4.
CONTRACTOR's Fee:
11.6. CONTRACTOR's Fee allowed to CONTRACTOR for overhead and profit shall be determined
as follows:
11.6.1. a mutually acceptable fixed fee, or if none can be agreed upon;
11.6.2. a fee based on the following percentages of the various portions of the Cost of the Work:
11.6.2.1. for costs incurred under paragraphs 11.4.1 and 11.4.2, CONTRACTOR's Fee shall be
fifteen percent,
11.6.2.2. for costs incurred under paragraph 11.4.3, CONTRACTOR's Fee shall five percent; and
if a subcontract is on the basis of Cost of the Work Plus a Fee, the maximum allowable to CONTRACTOR
on account of overhead and profit of all Subcontractors shall be fifteen percent,
11.6.2.3. no fee shall be payable on the basis of costs itemized under paragraphs 11 .4.4, 11 .4.5 and
11.3,
11.6.2.4. the amount of credit to be allowed by CONTRACTOR to OWNER for any such change
which results ina net decrease in cost will be the amount of the actual net decrease plus a deduction in
CONTRACTOR's Fee by an amount equal to ten percent of the net decrease, and
11.6.2.5. when both additions and credits are involved in anyone change, the adjustment in CON-
TRACTOR's Fee shall be computed on the basis of the net change in accordance with paragraphs 11.6.2.1
through 11.6.2.4, inclusive.
11.7. For all changes, CONTRACTOR shall submit an itemized cost breakdown, together with
supporting data in such detail and form as prescribed by the Project Manager. When a credit is due, the
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amount of credit to be allowed_by CONTRACTOR to OWNER for any such change which results in a net
decrease in cost will be the amount of the actual net decrease in direct cost as determined by the Project
Manager, plus the applicable reduction in overhead and profit. ' When both additions and credits are involved
in any change, the combined overhead and profit shall be calculated on the basis of the net change, whether
an increase or decrease. In any event, the minimum detail shall be an itemization of all man-hours required
by discipline/trade with the unit cost per man-hour and total labor price, labor burden, equipment hours and
rate for each piece of equipment, material by units of measure and price per unit, other costs specifically
itemized, plus the overhead and profit markup.
Cash Allowances:
11.8. It is understood that CONTRACTOR has included in the Contract Price all allowances so
named in the Contract Documents and shall cause the Work so covered to be done by such Subcontractors
or Suppliers and for such sums within the limitofthe allowances as may be acceptable to PROFESSIONAL
CONTRACTOR agrees that:
11.8.1. The allowances include the cost to CONTRACTOR (less any applicable trade discounts) of
materials and equipment required by the allowances to be delivered at the site and all applicable taxes; and
11.8.2. CONTRACTOR's costs for unloading and handling on the site, labor, installation costs,
overhead, profit and other expenses contemplated for the allowances have been included in the Contract
Price and not in the allowances. No demand for additional payment on account of any thereof will be valid.
Prior to final paym~nt, an appropriate Change Order will be issued as recommended by PROFESSIONAL to
reflect actual amounts due CONTRACTOR on account of Work covered by allowances, and the Contract
Price shall be correspondingly adjusted. '
Unit Price Work:
11.9.1. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work,
initially the Contract Price will be deemed to include for all Unit Price Work an amount equal to the sum of the
established unit prices for each separately identified item of Unit Price Work times the estimated quantity of
each item as indicated in the Agreement. The estimated quantities of items of Unit Price Work are not
guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Price.
Determinations of the actual quantities and classifications of Unit Price Work performed by CONTRACTOR
will be made by PROFESSIONAL in accordance with Paragraph 9.10.
11.9.2. Each unit price will be deemed to include an amount considered by CONTRACTOR to be
adequate to cover CONTRACTOR's overhead and profit for each separately identified item.
11.9.3. Where the quantity of any item of Unit Price Work performed by CONTRACTOR differs
materially and significantly from the estimated quantity of such item indicated in the Agreement and there is
no corresponding adjustment with respect to any other item of Work and if CONTRACTOR believes that
CONTRACTOR has incurred additional expense as a result thereof, CONTRACTOR may make a claim for
an increase in the Contract Price in accordance with Article 11 if the parties are unable to agree as to the
amount of any such increase.
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ARTICLE 12--CHANGE OF CONTRACT TIME
12.1. The Contract Time may only be changed by a Change Order. Any request for an extension in
the Contract Time shall be made in writing and delivered to PROFESSIONAL and OWNER within seven (7)
calendar days of the occurrence first happening and resulting in the claim. Written supporting data will be
submitted to PROFESSIONAL and OWNER within fifteen (15) calendar days after such occurrence unless
the OWNER allows additional time. All claims submitted by CONTRACTOR for adjustments to the Contract
Time must set forth in detail the reasons for and causes of the delay and clearly indicate why the subject delay
was beyond CONTRACTOR's control or fault.
12.2. If CONTRACTOR is delayed at any time in the performance, progress, commencement, or
completion of the Work by any act or neglect of OWNER or PROFESSIONAL, or by an employee of either,
or by any separate CONTRACTOR employed by OWNER, or by changes ordered in the Work, or by labor
disputes, fire, unavoidable casualties, utility conflicts which could not have been identified or foreseen by
CONTRACTOR using reasonable diligence, or any causes beyond CONTRACTOR's control or fault, then the
Contract Time shall be extended by Change Order for such reasonable time as OWNER may determine.
CONTRACTOR shall be entitled to an extension of time for such causes only for the number of days of delay
which OWNER may determine to be due solely to such causes and only to the extent such occurrences
actually delay the completion of the Work and then only if CONTRACTOR shall have strictly complied with
all the requirements of the Contract Documents. Provided, however, notwithstanding anything in the Contract
Documents to the contrary, no interruption, interference, inefficiency, suspension or delay in the performance,
progress, commencement or completion of the Work for any cause whatsoever, including those for which
OWNER or PROFESSIONAL may be responsible in whole or in part, shall relieve CONTRACTOR of its duty
to perform or give rise to any right to damages or additional compensation from OWNER. CONTRACTOR's
sole and exclusive remedy against OWNER for interruption, interference, inefficiency, suspension or delay
of any aspect of the Work shall be the right to seek an extension to the Contract Time in accordance with the
procedures set forth herein.
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ARTICLE 13-WARRANTY AND GUARANTEE; TESTS AND INSPECTIONS: CORRECTION,
REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK
Warranty and Guarantee:
13.1. CONTRACTOR warrants and guarantees to OWNER that all materials and equipment will be
new unless otherwise specified and that all work will be of good quality, performed in a workmanlike manner,
free from faults or defects, and in accordance with the requirements of the Contract Documents and any
inspections, tests, or approvals referred to in this Article. All unsatisfactory Work, all faulty Work and all Work
not conforming to the requirements of the Contract Documents or such inspections, tests, approvals, or all
applicable building, construction and safety requirements shall be considered defectiye. Notice of all defects
shall be given to CONTRACTOR by PROFESSIONAL. All defective work, whether or noUn place, may be
rejected, corrected, or accepted as provided in this Article.
Access to Work:
13.2. For the duration of the Work, PROFESSIONAL and its representatives, other designated
representatives of OWNER, and authorized representatives of any regulatory agency shall at all times be
given access to the Work. CONTRACTOR shall provide proper facilities for such access and obseNation of
the Work and also for any inspection or testing by others.
Tests and Inspections:
13.3. If the Contract Documents, ,laws, ordinances, rules, regulations or orders of any public authority
having jurisdiction require any Work to specifically be inspected, tested, or approved by someone other than
CONTRACTOR, CONTRACTOR shall give PROFESSIONAL timely notice of readiness therefore.
13.4. The testing firm(s) (if assigned by OWNER to this Work) and all such inspections, tests, or
approvals provided for by OWNER shall be identified inwriting by PROFESSIONAL to CONTRACTOR. All
other inspections, tests or approvals shall be at CONTRACTOR's expense including additional expenses for
inspection and tests required as a result of delays by CONTRACTOR or hours worked in excess of 40 hours
per week. For all required inspections, tests, and approvals on any Work prepared, performed, or assembled
away from the site, CONTRACTOR will furnish PROFESSIONAL with the required Certificates of Inspection,
testing, or approval. All such tests will be in accordance with the methods prescribed by the American Society
for Testing and Materials or such other applicable organizations as may be required by law or the Contract
Documents. Materials or Work in place that fail to pass acceptability tests shall be retested at the direction
of PROFESSIONAL and at CONTRACTOR's expense. -
13.5. All inspections, tests or approvals other than those required by Laws or Regulations of any
public body having jurisdiction shall be performed 'by organizations acceptable to' OWNER and'
CONTRACTOR (or by PROFESSIONAL if so specified).
13.6. If any Work (including the work of others) that is to be inspected, tested or approved is covered
without written concurrence of PROFESSIONAL, it must, if requested by PROFESSIONAL, be uncovered for
obseNation. Such uncovering shall be at CONTRACTOR's expense unless CONTRACTOR has given
PROFESSIONAL timely notice of CONTRACTOR's intention to cover the same and PROFESSIONAL has
not acted with reasonable promptness in response to such notice.
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13.7. Neither obseNations by PROFESSIONAL or Project Manager nor inspections, tests, or
approvals by persons other than CONTRACTOR shall relieve CONTRACTOR of its obligations to perform
the Work in accordance with the requirements of the Contract Documents.
Uncovering Work:
13.8. If any Work required to be inspected, tested or approved is covered prior thereto without the
prior written approval of PROFESSIONAL, or if any Work is covered contrary to the request of
PROFESSIONAL, the Work shall, if requested by PROFESSIONAL, be uncovered for obseNation, inspection,
testing or approval and replaced at CONTRACTOR's expense.
13.9. If PROFESSIONAL considers it necessary or advisable that covered Work be obseNed by
PROFESSIONAL or inspected or tested by others, CONTRACTOR, at PROFESSIONAL's request, shall
uncover, expose or otherwise make available for obseNation, inspection or testing as PROFESSIONAL may
require, that portion of the Work in question, furnishing all necessary labor, material and equipment. If it is
found that such Work is defective, CONTRACTOR shall bear all direct and consequential costs of such
uncovering, exposure, obseNation, inspection and testing and of satisfactory reconstruction (including but not
limited to fees and charges of PROFESSIONALs, architects, attorneys and other PROFESSIONALs), and
OWNER shall be entitled to an appropriate decrease in the Contract Price and, if the parties are unable to
agree as to the amount thereof, OWNER may make a claim therefor as provided in Article 11. If, however,
such Work is not found to be defective, CONTRACTOR shall be allowed an increase in the Contract Price
or an extension of the Contract Time, or both, directly attributable to such uncovering, exposure, obseNation,
inspection, testing and reconstruction, and, if the parties are unable to agree as to the amount or extent
thereof, CONTRACTOR may make a claim therefor as provided in Articles 11 and 12.
OWNER May Stop the Work:
13.10. When Work is defective or when CONTRACTOR fails to supply sufficient skilled workmen
or suitable materials or equipment or make prompt payments to Subcontractors for labor, materials, or
equipment or if CONTRACTOR violates any provisions of these Contract Documents, OWNER may order
CONTRACTOR to stop the Work until the cause for such order has been eliminated. However, this right of
OWNER to stop the Work shall not give rise to any duty on the part of OWNER to exercise this right for the
benefit of CONTRACTOR or any other party. CONTRACTOR shall have no right to claim an increase In the
Contract Price or Contract Time or other damages for a stop work order under this paragraph.
Correction or Removal of Defective Work:
13.11. When directed by PROFESSIONAL, CONTRACTOR shall promptly, without cost to OWNER
and as specified by PROFESSIONAL, either correct the defective Work whether fabricated, installed, or
completed, or remove it from the site and replace it with non-defective Work. If CONTRACTOR does not
correct such defective Work or remove and replace such defective Work within a reasonable time, as
specified in a written notice from PROFESSIONAL, OWNER may have the deficiency corrected. All direct
and indirect costs of such correction shall be paid by CONTRACTOR or deducted from payment to
CONTRACTOR. CONTRACTOR will also bear the expense of correcting or removing and replacing all Work
of others destroyed or damaged by the correction, removal, or replacement of the defective Work.
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One Year Correction Period:
13.12. If, after approval of final payment and prior to the expiration of one year after the date of
substantial completion or such longer period of time as may be prescribed by law or by the terms of any
applicable special guarantee required by the Contract Documents, any Work or materials are found to be
defective, incomplete, or otherwise not in accordance with the Contract Documents, CONTRACTOR shall
promptly, without cost to OWNER and in accordance with OWNER's written instructions, either correct such
defective Work or if it has been rejected by OWNER, remove it from the Site and replace it with non-defective
Work. If CONTRACTOR does not promptly comply with the terms of such instructions, OWNER may have
the defective Work corrected, removed, or replaced. All direct, indirect and consequential costs of such
removal and replacement (including but not limited to fees and charges of engineers, architects, attorneys and
other professionals) will be paid by CONTRACTOR.
Acceptance of Defective Work:
13.13. If, instead of requiring correction or removal and replacement of defective Work,> OWNER
(and, prior to PROFESSIONAL's recommendation of final payment, PROFESSIONAL) prefers to accept it,
OWNER may do so. CONTRACTOR shall bear all direct, indirect and consequential costs attributable to
OWNER's evaluation of and determination to accept such defective Work (such costs to be approved by
PROFESSIONAL as to reasonableness and to include but not be limited to fees and charges of engineers,
architects, attorneys and other professionals). If any such acceptance occurs prior to PROFESSIONAL's
recommendation of final payment, a Change Order will be issued incorporating the necessary revisions in the
Contract Documents with respect to the Work, and OWNER shall be entitled to an appropriate decrease in
the Contract Price, and, if the parties are unable to agree as to the amount thereof, OWNER may make a
claim therefor as provided in Article 11. If the acceptanc.e occurs after such recommendation, an appropriate
amount will be paid by CONTRACTOR to OWNER.
OWNER May Correct Defective Work:
13.14. If CONTRACTOR fails within a reasonable time after written notice of PROFESSIONAL to
proceed to correct defective Work or to remove and replace rejected Work as required by PROFESSIONAL
in accordance with paragraph 13.11, or if CONTRACTOR fails to perform the Work in accordance with the
Contract Documents, or if CONTRACTOR falls to comply with any other provision of the E:ontract Documents,
OWNER may, after seven days' written notice to CONTRACTOR, correct and remedy any such deficiency.
In exercising the rights and remedies under this paragraph, OWNER shall proceed expeditiously, to the extent
necessary to complete corrective and remedial action. OWNER may exclude CONTRACTOR from all or part
of the site, take possession of all or part of the Work, and suspend CONTRACTOR's seNices related thereto,
take possession of CONTRACTOR's tools, appliances, construction equipment and machinery at the site and
incorporate in the Work all materials and equipment stored at the site or for which OWNER has paid
CONTRACTOR but which are stored elsewhere. CONTRACTOR shall allow OWNER, OWNER's
representatives, agents and employees such access to the site as may be necessary to enable OWNER to
exercise the rights and remedies under this paragraph. All direct, indirect and consequential costs of OWNER
in exercising such rights and remedies will be charged against CONTRACTOR in an amount approved as to
reasonableness by PROFESSIONAL, and a Change Order will be issued incorporating the necessary
revisions in the Contract Documents with respect to the Work, and OWNER shall be entitled to an appropriate
decrease in the Contract Price, and, if the parties are unable to agree as to the amount thereof, OWNER may
make a claim therefor as provided in Article 11. Such direct, indirect and consequential costs will include, but
not be limited to, fees and charges of engineers, architects, attorneys and other professionals, all court costs
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and all costs of repair and replacement of work of others destroyed or damaged by correction, removal or
replacement of CONTRACTOR's defective Work. CONTRACTOR shall not be allowed an extension of the
Contract Time because of any delay in performance of the Work attributable to the exercise by OWNER of
OWNER's rights and remedies hereunder.
Neglected Work by CONTRACTOR
13.15. If CONTRACTOR neglects to execute the Work in accordance with the Contract Documents,
including any requirements of the progress schedule, PROFESSIONAL may direct CONTRACTOR to submit
a recovery plan and take specific corrective actions including, but not limited to, employing additional workmen
and/or equipment, and working extended hours and additional days, all at no cost to OWNER in order to put
the Work back on schedule. If CONTRACTOR fails to correct the deficiency or take appropriate corrective
action, OWNER may terminate the contract or CONTRACTOR's right to proceed with that portion of Work
and have the Work done by others. The cost of completion under such procedure shall be charged against
CONTRACTOR. A Change Order shall be issued incorporating the necessary revisions in the Contract
Documents, including an appropriate reduction in the Contract Price. If the payments due CONTRACTOR
are not sufficient to cover such amount, CONTRACTOR shall pay the difference to OWNER.
13.16. Should CONTRACTOR work overtime, weekends or holidays to regain the schedule, all costs
to OWNER of associated inspection, construction management and resident engineers shall be identified to
CONTRACTOR and the Contract Price reduced by a like amount via Change Order.
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ARTICLE 14-PAYMENTS TO CONTRACTOR AND COMPLETION
Schedule of Values:
14.1. The schedule of values established as provided in 2.9 will seNe as the basis for progress
payments and will be incorporated into a form of application for Payment acceptable to Project Manager.
Progress payments on account of Unit Price Work will be based on the number of units completed.
Application for Progress Payment:
14.2. At least twenty (20) calendar days before the date established for each progress payment (but
not more often than once a month), CONTRACTOR shall submit to PROFESSIONAL for review an application
for Payment filled out and signed by CONTRACTOR covering the work completed as of the date of the
application and accompanied by such supporting documentation as is required by the Contract Documents.
If payment is requested on the basis of materials and equipment not incorporated in the Work but delivered
and suitably stored at the site or at another location agreed to in writing, the Application for Payment shall also
be accompanied by a bill of sale, invoice or other documentation warranting that OWNER has received the
materials and equipment free and clear of all liens and evidence that the materials and equipment are covered
by appropriate property insurance and other arrangements to protect OWNER's interest therein, all of which
will be satisfactory to OWNER. Payment is subject to a ten percent (10%) retainage that will be held until the
final payment or acceptance by OWNER. The amount of retainage with respect to progress payments will be
as stipulated in the Agreement.
CONTRACTOR's Warranty of Title:
14.3. CONTRACTOR warrants and guarantees that title to all Work, materials and equipment
covered by any Application for Payment, whether incorporated in the Project or not, will pass to OWNER no
later than the time of payment free and clear of all Liens.
Review of Applications for Progress Payment:
14.4. PROFESSIONAL will, within ten (10) calendar days after receipt of each Application for
Payment, either indicate in writing a recommendation of payment and present the application to OWNER, or
return the application to CONTRACTOR indicating in writing PROFESSIONAL's reasons for refusing to
recommend payment. In the latter case, CONTRACTOR may make the necessary corrections and resubmit
the application. OWNER shall, within thirty-one calendar days of presentation to him of the application for
payment with PROFESSIONAL's recommendation of the amount for payment, pay CONTRACTOR amount
recommended.
14.5. PROFESSIONAL's recommendation of any payment requested in an Application for Payment
will constitute a representation by PROFESSIONAL to OWNER, based on PROFESSIONAL's on-site
obseNations of the Work in progress as an experienced and qualified design PROFESSIONAL and on PROF-
ESSIONAL's review of the Application for Payment and the accompanying data and schedules, that the Work
has progressed to the point indicated; that, to the best of PROFESSIONAL's knowledge, information and
belief, the quality of the Work is in accordance with the Contract Documents subjectto an evaluation of the
Work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests
called for in the Contract Documents, to a final determination of quantities and classifications for Unit Price
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Work under paragraph 9.10, and to any other qualifications stated in the recommendation; and that
CONTRACTOR is entitled to payment of the amount recommended. However, by recommending any such
payment, PROFESSIONAL will not thereby be deemed to have represented that exhaustive or continuous
on-site inspections have been made to check the quality or the quantity of the Work beyond the
responsibilities specifically assigned to PROFESSIONAL in the Contract Documents or that there may not be
other matters or issues between the parties that might entitle CONTRACTOR to be paid additionally by
OWNER or OWNER to withhold payment to CONTRACTOR.
14.6. PROFESSIONAL's recommendation of final payment will constitute an additional
representation by PROFESSIONAL to OWNER that the conditions precedent to CONTRACTOR's being
entitled to final payment as set forth in paragraph 14.13 have been fulfilled.
14.7. PROFESSIONAL may refuse to recommend the whole or any part of any payment if, in
PROFESSIONAL's opinion, it would be incorrect to make such representations to OWNER. PROFESSIONAL
may also refuse to recommend any such payment, or, because of subsequently discovered evidence or the
results of subsequent inspections or tests, nullify any such payment previously recommended, to such extent
as may be necessary in PROFESSIONAL's opinion to protect OWNER from loss because:
14.7.1. the Work is defective, or completed Work has been damaged requiring correction or
replacement.
14.7.2. the Contract Price has been reduced by Written Amendment or Change Order.
14.7.3. OWNER has been required to correct defective Work or complete Work in accordance with
paragraph 13.14. or
14.7.4. of PROFESSIONAL's actual knowledge of the occurrence of any of the events enumerated
in paragraphs 15.2.1 through 15.2.9 inclusive.
OWNER may refuse to make payment of the full amount recommended by PROFESSIONAL because claims
have been made against OWNER on account of CONTRACTOR's performance or furnishing of the Work or
Liens have been filed in connection with the Work or there are other items entitling OWNER to a off-set
against the amount recommended, but OWNER must give CONTRACTOR immediate written notice (with a
copy to PROFESSIONAL) stating the reasons for such action.
Substantial Completion:
14.8. When CONTRACTOR considers the entire Work ready for its intended use, CONTRACTOR
shall notify OWNER and PROFESSIONAL in writing that the entire Work is substantially complete (except
for items specifically listed by CONTRACTOR as incomplete) and request that PROFESSIONAL issue a
certificate of Substantial Completion. Within a reasonable time thereafter, OWNER, CONTRACTOR and
PROFESSIONAL shall make an inspection of the Work to determine the status of completion. If
PROFESSIONAL does not consider the Work substantially complete, PROFESSIONAL will notify
CONTRACTOR in writing giving the reasons therefor. If PROFESSIONAL considers the Work substantially
complete, PROFESSIONAL will prepare and deliver to OWNER a tentative certificate of Substantial
Completion which shall fix the date of Substantial Completion. There shall be attached to the certificate a
tentative list of items to be completed or corrected before final payment. OWNER shall have seven days after
receipt of the tentative certificate during which to make written objection to PROFESSIONAL as to any
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provisions of the certificate or attached list. If, after considering such objections, PROFESSIONAL concludes
that the Work is not substantially complete, PROFESSIONAL will, within fourteen days after submission of
the tentative certificate to OWNER notify CONTRACTOR in writing stating the reasons therefor. If, after
consideration of OWNER's, objections, PROFESSIONAL considers the Work substantially complete,
PROFESSIONAL will within said fourteen days execute and deliver to OWNER and CONTRACTOR a
definitive certificate of Substantial Completion (with a revised tentative list of items to be completed or
corrected) reflecting such changes from the tentative certificate as PROFESSIONAL believes justified after
consideration of any objections from OWNER. At the time of delivery of the tentative certificate of Substantial
Completion, PROFESSIONAL will deliver to OWNER and CONTRACTOR a written recommendation as to
division of responsibilities pending final payment between OWNER and CONTRACTOR with respect to
security, operation, safety, maintenance, heat, utilities, insurance and warranties. Unless OWNER and
CONTRACTOR agree otherwise in writing and so inform PROFESSIONAL prior to PROFESSIONAL's issuing
the definitive certificate of Substantial Completion, PROFESSIONAL's aforesaid recommendation will be
binding on OWNER and CONTRACTOR until final payment.
14.9. OWNER shall have the right to exclude CONTRACTOR from the Work after the date of
Substantial Completion, but OWNER shall allow CONTRACTOR reasonable access to complete or correct
items on the tentative list.
Partial Utilization:
14.10. Use by OWNER at OWNER's option of any substantially completed part of the Work which
(i) has specifically been identified in the Contract Documents, or (ii) OWNER, PROFESSIONAL, and
CONTRACTOR agree constitutes a separately functioning and usable part of the Work that l;:an be used by
OWNER for its intended purpose without significant interference with CONTRACTOR's performance of the
remainder of the Work, may be accomplished prior to Substantial Completion of all the Work subject to the
following:
14.10.1. OWNER at any time may request CONTRACTOR in writing to permit OWNER to use any
such part of the Work which OWNER believes to be ready for its intended use and substantially complete.
If CONTRACTOR agrees, CONTRACTOR will certify to OWNER and PROFESSIONAL that said part of the
Work is substantially complete and request PROFESSIONAL to issue a certificate of Substantial Completion
for that part of the Work. CONTRACTOR at any time may notify OWNER and PROFESSIONAL in writing that
CONTRACTOR considers any such part ofthe Work ready for its intended use and substantially complete
and request PROFESSIONAL to issue a certificate of Substantial Completion for that part of the Work. Within
a reasonable time after either such request, OWNER, CONTRACTOR and PROFESSIONAL shall make an
inspection of that part of the Work to determine its status of completion. If PROFESSIONAL does not consider
that part of the Work to be substantially complete, PROFESSIONAL will notify OWNER and CONTRACTOR,
in writing, giving the reasons therefor. If PROFESSIONAL considers that part of the Work to be substantially
complete, the provisions of paragraphs 14.8 and 14.9 will apply with respect to certification of Substantial
Completion of that part of the Work and the division of responsibility in respect thereof and access thereto.
14.10.2. OWNER may at any time request CONTRACTOR, in writing, to permit OWNER to take over
operation of any such part of the Work although it is not substantially complete. A copy of such request will
be sent to PROFESSIONAL and, within a reasonable time thereafter, OWNER, CONTRACTOR and
PROFESSIONAL shall make an inspection of that part of the Work to determine its status of completion, and
PROFESSIONAL will prepare a list of the items remaining to be completed or corrected thereon before final
payment. If CONTRACTOR does not object in writing to OWNER and PROFESSIONAL that such part of the
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Work is not ready for separate operation by OWNER, PROFESSIONAL will finalize the list of items to be
completed or corrected and will deliver such list to OWNER and CONTRACTOR together with a written
recommendation as to the division of responsibilities pending final payment between OWNER and
CONTRACTOR with respect to security, operation, safety, maintenance, utilities, insurance, warranties and
guarantees for that part of the Work which will become binding upon OWNER and CONTRACTOR at the time
when OWNER takes over such operation (unless they shall have otherwise agreed in writing and so informed
PROFESSIONAL). During such operation and prior to Substantial Completion of such part of the Work,
OWNER shall allow CONTRACTOR reasonable access to complete or correct items on said list and to
complete other related Work.
14.10.3. No occupancy or separate operation of part of the Work will be accomplished prior to
compliance with the requirements of paragraph 5.15 in respect of property insurance.
14.10.4. OWNER, may at its discretion, reduce the amount of retainage subject to Beneficial
Occupancy.
Final Inspection:
14.11. Upon written n()tice from CONTRACTOR that the entire Work or an agreed upon portion
thereof is complete, PROFESSIONAL will make a final inspection with OWNER and CONTRACTOR and will
notify CONTRACTOR in writing of all particulars in which this inspection reveals that the Work is incomplete
or defective. CONTRACTOR shall immediately take such measures as are necessary to remedy such defi-
ciencies.
Final Applicatiqn for Payment:
14.12. After CONTRACTOR has completed all such corrections to the satisfaction of
PROFESSIONAL and OWNER and delivered in accordance with the Contract Documents all maintenance
and operating instructions, schedules, guarantees, bonds, certificates or other evidence of insurance required
by 5.2, certificates of inspection, marked-up record documents and other documents, CONTRACTOR may
make application for final payment following the procedure for progress payments. The final Application for
Payment shall be accompanied (except as previously delivered) by: (i) all documentation called for in the
Contract Documents, including but not limited to the evidence of insurance required, (ii) consent of the surety,
if any, to final payment, and (iii) complete and legally effective releases or waivers (satisfactory to OWNER)
of all liens arising out of or filed in connection with the Work. In lieu of such releases or waivers of liens and
as approved by OWNER, CONTRACTOR may furnish receipts or release in full and an affidavit of
CONTRACTOR that (i) the releases and receipts include all labor, seNices, material and equipment for which
a lien could be filed, and (ii) all payrolls, material and equipment bills and other indebtedness connected with
the Work for which OWNER or OWNER's property might in any way be responsible have been paid or
otherwise satisfied. If any Subcontractor or supplier fails to furnish such a release or receipt in full,
CONTRACTORmay furnish a bond or other collateral satisfactory to OWNER to indemnify OWNER ag-ainst
any lien.
14.12.1. No application for final payment will be accepted by OWNER until approved as-built
documents by CONTRACTOR are accepted and approved by PROFESSIONAL. .
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14.12.2. Notwithstanding any other provision of these contract documents to the contrary, OWNER
and PROFESSIONAL are under no duty or obligation whatsoever to any vendor, materials provider,
Subcontractor, laborer or other party to ensure that payments due and owing by CONTRACTOR to any of
them are or will be made. Such parties shall rely only on CONTRACTOR's surety bonds for remedy of
nonpayment by him. CONTRACTOR agrees to defend and resolve all claims made by Subcontractors,
indemnifying OWNER and PROFESSIONAL for all claims arising from or resulting from Subcontractor or
supplier or material men or laborer seNices in connection with this project.
14.12.3. General Indemnity: CONTRACTOR shall indemnify OWNER and PROFESSIONAL for any
damages sustained, including lost profits, resulting from CONTRACTOR's failure or refusal to perform the
work required by these contract documents.
Final Payment and Acceptance:
14.13. If, on the basis of PROFESSIONAL's obseNation of the Work during construction and final
inspection and PROFESSIONAL's review of the final Application for Payment and accompanying
documentation as required by the Contract Documents, PROFESSIONAL is satisfied that the Work has been
completed and CONTRACTOR's other obligations under the Contract Documents have been fulfilled,
PROFESSIONAL will, within ten (10) working days after receipt of the final Application for Payment, indicate
in writing PROFESSIONAL's recommendation of payment and present the Application to OWNER for
payment. At the same time PROFESSIONAL will also give written notice to OWNER and CONTRACTOR
that the Work is acceptable subject to the provisions of 14.6. Otherwise, PROFESSIONAL will return the
application to CONTRACTOR, i~dicating in writing the reasons for refusing to recommend final payment, in
which case CONTRACTOR shall make the necessary corrections and resubmit the Application. After the
presentation to OWNER of the application and accompanying documentation, in appropriate form and
substance and with PROFESSIONAL's recommendation and notice of acceptability, the amount
recommended by PROFESSIONAL will become due and will be paid by OWNER to CONTRACTOR.
14.14. If, through no fault of CONTRACTOR, final completion of the Work is significantly delayed and
if PROFESSIONAL so confirms, OWNER shall, upon receipt of CONTRACTOR's final Application for
Payment and recommendation of PROFESSIONAL and without terminating the Agreement, make payment
of the balance due for that portion of the Work fully completed and accepted. If the remaining balance to be
held by OWNER for Work not fully completed or corrected is less than the retainagestipulated in the Contract
and if bonds have been furnished"as required in Article 5, the written consent of the surety to the payment of
the balance due for that portion of the Work fully completed and accepted shall be submitted by
CONTRACTOR to PROFESSIONAL with the application for such payment. Such payment shall be made
under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims.
CONTRACTOR's Continuing Obligation:
14.15. CONTRACTOR's obligation to perform and complete the Work in accordance with the
Contract Documents shall be absolute. Neither recommendation of any progress or final
payment by PROFESSIONAL, nor the issuance of a certificate of Substantial Completion, nor
any payment by OWNER to CONTRACTOR under the Contract Documents, nor any use or
occupancy of the Work or any part thereof by OWNER, nor any act of acceptance by OWNER
nor any failure to do so, nor any review and approval of a Shop Drawing or sample
submission, nor the issuance of a notice of acceptability by PROFESSIONAL pursuant to
paragraph 14.13, nor any correction of defective Work by OWNER will constitute an
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acceptance of Work not in accordance with the Contract Documents or a release of
CONTRACTOR's obligation to perform the Work in accordance with the Contract Documents
(except as provided in paragraph 14.16).
Waiver of Claims:
14.16. The making and acceptance of final payment will constitute:
14.16.1. A waiver of all claims by OWNER against CONTRACTOR, except claims arising from
unsettled liens, from defective Work appearing after final inspection pursuant to 14.11, from failure to comply
with the Contract Documents or the terms of any special guarantees specified therein, or from
CONTRACTOR's continuing obligations under the Contract Documents; and
14.16.2. A waiver of all claims by CONTRACTOR against OWNER other than those previously made
in writing and still unsettled.
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ARTICLE 15--SUSPENSION OF WORK AND
TERMINATION
OWNER May Suspend Work:
15.1. OWNER may, at any time and without cause, suspend the Work or any portion thereof for a
period of not more than ninety days by notice in writing to CONTRACTOR and PROFESSIONAL which will
fix the date on which Work will be resumed. CONTRACTOR shall resume the Work on the date so fixed.
CONTRACTOR shall be allowed an adjustment in the Contract Price or an extension of the Contract Time,
or both, directly attributable to any suspension if CONTRACTOR makes an approved claim therefor as
provided in Articles 11 and 12.
Termination For Cause:
15.2. Upon the occurrence of anyone or more of the following events:
15.2. 1. if CONTRACTOR commences a voluntary case under any chapter of the Bankruptcy Code
(Title 11, United States Code), as now or hereafter in effect, or if CONTRACTOR takes any equivalent or
similar action by filing a petition or otherwise under any other federal or state law in effect at such time relating
to the bankruptcy or insolvency;
15.2.2. if a petition is filed against CONTRACTOR under any chapter of the Bankruptcy Code as now
or hereafter in effect at the time of filing, or if a petition is filed seeking any such equivalent or similar relief
against CONTRACTOR under any other federal or state law in effect at the time relating to bankruptcy or
insolvency;
15.2.3. if CONTRACTOR makes a general assignment for the benefit of creditors;
15.2.4. if a trustee, receiver, custodian or agent of CONTRACTOR is appointed under applicable law
or under contract, whose appointment or authority to take charge of property of CONTRACTOR is for the
purpose of enforcing a Lien against such property or for the purpose of general administration of such property
for the benefit of CONTRACTOR's creditors;
15.2.5. if CONTRACTOR admits in writing an inability to pay its debts generally, as they become due;
15.2.6. if CONTRACTOR fails to perform the Work in accordance with the Contract Documents
(including, but not limited to, failure to supply sufficient skilled workers or suitable materials or equipment or
failure to adhere to the progress schedule established under paragraph 2.9 as revised from time to time);
15.2.7. if CONTRACTOR disregards Laws or Regulations of any public body having jurisdiction;
15.2.8. if CONTRACTOR disregards the authority of PROFESSIONAL; or
15.2.9. if CONTRACTOR otherwise violates in any substantial way any provisions of the Contract
Documents,
OWNER may, after giving CONTRACTOR (and the surety, if there be one) seven days' written notice and to
the extent permitted by Laws and Regulations, terminate the services of CONTRACTOR, exclude
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CONTRACTOR from the site and take possession of the Work and of all CONTRACTOR's tools, appliances,
construction equipment and machinery at the site and use the same to the full extent they could be used by
CONTRACTOR (without liability to CONTRACTOR for trespass or conversion), incorporate in the Work all
materials and equipment stored at the site or for which OWNER has paid CONTRACTOR but which are
stored elsewhere, and finish the Work as OWNER may deem expedient. In such case CONTRACTOR shall
not be entitled to receive any further payment until the Work is finished. If the unpaid balance of the Contract
Price exceeds the direct, indirect and consequential costs of completing the Work (including but not limited
to fees and charges of PROFESSIONALs, architects, attorneys and other PROFESSIONALs and court and
arbitration costs) such excess will be paid to CONTRACTOR. If such costs exceed such unpaid balance,
CONTRACTOR shall pay the difference to OWNER. Such costs incurred by OWNER will be approved as
to reasonableness by PROFESSIONAL and incorporated in a Change Order, but when exercising any rights
or remedies under this paragraph, OWNER shall not be required to obtain the lowest price for the Work
performed.
15.3. In the event OWNER terminates the contract for cause and it is subsequently judicially
determined that there was no cause for termination, the termination for convenience provision will be the
means for disposition of the balance of the contract obligations.
Termination for Convenience
15.4. Upon seven working days' written notice to CONTRACTOR and PROFESSIONAL, OWNER
may, without cause and without prejudice to any other right or remedy of OWNER, elect to terminate the
Contract. In such case, CONTRACTOR shall be paid (without duplication of any items):
15.4.1. For completed and acceptable Work executed in accordance with the Contract Documents
prior to the effective date of termination, including fair and reasonable sums for overhead and profit on such
Work;
15.4.2. For expenses sustained prior to the effective date of termination in performing services and
furnishing labor, materials or equipment as required by the Contract Documents in connection with
uncompleted Work, plus fair and reasonable sums for overhead and profit on such expenses;
15.4.3. For all claims, costs, losses and damages incurred in settlement of terminated contracts with
Subcontractors, suppliers and others; and
15.4.4. For reasonable expenses directly attributable to termination.
CONTRACTOR shall not be paid on account of loss of anticipated profits or revenue or other economic loss
arising out of or resulting from such termination.
15.5. Where CONTRACTOR's services have been so terminated by OWNER, the termination will
not affect any rights or remedies of OWNER against CONTRACTOR then existing or which may thereafter
accrue. Any retention or payment of moneys due CONTRACTOR by OWNER will not release
CONTRACTOR from liability.
CONTRACTOR May Stop Work or Terminate:
15.6. If through no act or fault of CONTRACTOR, the Work is suspended for a period of more than
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ninety calendar days by OWNER or under an order of court or other public authority, or PROFESSIONAL fails
to act on any Application for Payment within thirty days after it is submitted or OWNER fails for thirty-one days
to pay CONTRACTOR any sum finally determined to be due, then CONTRACTOR may upon seven working
days' written notice to OWNER and PROFESSIONAL and provided OWNER or PROFESSIONAL did not
remedy such suspension or failure within that time, terminate the Agreement and recover from OWNER
payment on the same terms as provided in 15.2. In lieu of terminating the Agreement and without prejudice
to any other right or remedy, if PROFESSIONAL has failed to act on an Application for Payment within thirty
days after it is submitted or OWNER has failed for thirty-one calendar days after it is submitted to pay
CONTRACTOR any sum finally determined to be due, CONTRACTOR may upon seven days' written notice
to OWNER and PROFESSIONAL stop the Work until receipt of payment of all such amounts due
CONTRACTOR, including interest thereon. The provisions of this paragraph are not intended to preclude
CONTRACTOR from making claim under Articles 11 and 12 for an increase in Contract Price or Contract
Time or otherwise for expenses or damage directly attributable to CONTRACTOR's stopping Work as
permitted by this paragraph. The provisions of this paragraph shall not relieve CONTRACTOR of the
obligations under paragraph 6.30 to carry on the Work in accordance with the progress schedule and without
delay during disputes and disagreements with OWNER.
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ARTICLE 16--DISPUTE RESOLUTION
16.1. All disputes arising under this Contract or its interpretation whether involving law or fact or
both, or extra work, and all claims for alleged breach of contract shall within ten (10) working days of the
commencement of the dispute be presented by CONTRACTOR to OWNER for decision. All papers
pertaining to claims shall be filed in quadruplicate. Such notice need not detail the amount of the claim but
shall state the facts surrounding the claim in sufficient detail to identify the claim, together with its character
and scope. In the meantime, CONTRACTOR shall proceed with the Work as directed. Any claim not
presented within the time limit specified in this paragraph shall be deemed to have been waived, except that
if the claim is of a continuing character and notice of the claim is not given within ten (10) working days of its
commencement, the claim will be considered only for a period commencing ten (10) working days prior to the
receipt by OWNER of notice thereof. Each decision by OWNER will be in writing and will be mailed to
CONTRACTOR by registered or certified mail, return receipt requested, directed to his last known address.
16.2 All claims, disputes and other matters in question between OWNER and CONTRACTOR
arising out of, or relating to, the Contract Documents or the breach thereof shall be decided under Georgia
Law in the Superior Court of Richmond County, Georgia. CONTRACTOR by execution of the Contract
consents to jurisdiction and venue in the Superior Court of Richmond County, Georgia, and waives any right
to contest same.
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Revision Date
August 2001
ARTICLE 17-MISCELLANEOUS
Giving Notice:
17.1. Whenever any provision of the Contract Documents requires the giving of written notice, it
will be deemed to have been validly given if delivered in person to the individual or to a member of the firm
or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered or certified
mail, postage prepaid, to the last business address known to the giver of the notice.
Computation of Time:
17.2.1. When any period of time is referred to in the Contract Documents by days, it will be computed
to exclude the first and include the last day of such period. If the last day of any such period falls on a
Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day will
be omitted from the computation.
17.2.2. A calendar day of twenty-four hours measured from midnight to the next midnight shall
constitute a day.
General:
17.3. Should OWNER or CONTRACTOR suffer injury or damage to person or property because of
any error, omission or act of the other party or of any of the other party's employees or agents or others for
whose acts the other party is legally liable, claim should be made in writing to the other party within a
reasonable time of the first observance of such injury or damage. The provisions of this paragraph 17.3 shall
not be construed as a substitute for or a waiver of the provisions of any applicable statute of limitations or
repose.
17.4. The duties and obligations imposed by these General Conditions and the rights and remedies
available hereunder to the parties hereto, and, in particular but without limitation, the warranties, guarantees
and obligations imposed upon CONTRACTOR by paragraphs 6.32, 13.1, 13.12, 13.14, 14.3 and 15.2 and all
of the rights and remedies available to OWNER and PROFESSIONAL thereunder, are in addition to, and are
not to be construed inany way as a limitation of, any rights and remedies available to any or all of them which
are otherwise imposed or available by Laws or Regulations, by special warranty or guarantee or by other
provisions of the Contract Documents, and the provisions of this paragraph will be as effective as if repeated
specifically in the Contract Documents in connection with each particular duty, obligation, right and remedy
to which they apply. All representations, warranties and guarantees made in the Contract Documents will
survive final payment and termination or completion of the Agreement.
17.5. CONTRACTOR shall keep adequate records and supporting documentation applicable to this
Work and Contract. Said records and documentation shall be retained by CONTRACTOR for a minimum of
five (5) years from the date of final completion or termination of this Contract. OWNER shall have the right
to audit, inspect, and copy all such records and documentation as often as OWNER deems necessary during
the period of the Contract and for a period of five (5) years thereafter provided, however, such activity shall
be conducted only during normal business hours. OWNER, during this period of time, shall also have the right
to obtain a copy of and otherwise inspect any audit made at the direction of CONTRACTOR as concerns the
aforesaid records and supporting documentation. .
GC-50
Page 50 of 52
Revision Date
August 2001
17.6. The Contract Documents are intended by the Parties to, and do, supersede any and all
provisions of the Georgia Prompt Pay Act, O.C.GA Section 13-11-1, etseq. In the event any provision of
the Contract Documents are inconsistent with any provision of the Prompt Pay Act, this provision of the
Contract Documents shall control.
17.7. Notwithstanding any provision of the law to the contrary, the parties agree that no interest
shall be due Contractor on any sum held as retainage pursuant to the Contract Documents and
CONTRACTOR specifically waives any claim to same.
Substitutions:
17.8. Notwithstanding any provision of these general conditions, there shall be no substitutions of
materials that are not determined to be equivalent to those indicated or required in the contract documents
without an amendment to the contract.
Sanitary Sewer Overflow Prevention:
17.9. Procedures to Prevent Overflows During Sanitary Sewer Construction:
17.9.1 The CONTRACTOR is hereby notified that the discharge of any untreated wastewater to
waters of the State is a violation of Georgia Water Quality Regulations and is prohibited.
17.9.2 The CONTRACTOR will submit an Emergency Response Plan prior to beginning work. This
plan will include a list of key personnel with 24-hour contact information who will respond during an emergency
situation. The ERP will include estimates of mobilization time for a response crew to a,rrive onsite. Any
changes to the Emergency Response Plan will be submitted to the RESIDENT PROJECT
REPRESENTATIVE prior to implementation.
17.9.3 In the event bypass pumping is required to facilitate new sewer construction, bypassing plans
and supporting calculations must be submitted to the Augusta Utilities Department for review prior to
establishment of the bypass. All bypass systems will include complete redundancy in pumping systems, if
failure of the primary pumping system could result in a discharge of untreated wastewater to waters of the
State.
17.9.4 Bypass pumping will be monitored continuously by a person knowledgeable in pump operation
and maintenance if the failure of the bypass pump could result in the discharge of untreated wastewater to
waters of the State.
17.9.6 The RESIDENT PROJECT REPRESENTATIVE will coordinate notification of the Georgia
Environmental Protection Division (800.241.4113) and the Augusta Emergency Management Agency if
GC-51
Page 51 of 52
Revision Date
August 2001
appropriate.
17.9.7 If, in the opinion of the RESIDENT PROJECT REPRESENTATIVE and the OWNER, the
CONTRACTOR is not responding to an emergency situation in an appropriate manner, the Utilities
Department will undertake necessary actions to abate an overflow situation. The cost of these actions will
be the responsibility of the CONTRACTOR.
17.9.8 Following a discharge of untreated wastewater, a downstream inspection will be conducted
by the Utilities Department to assess potential mitigation measures that may be required of the
CONTRACTOR.
PROGRAM MANAGER:
17.10 The PROGRAM MANAGER for the project is CH2M HILL, 360 Bay Street, Suite 100 Augusta,
GA 30901.
The presence or duties of PROGRAM MANAGER's personnel at the construction site, whether as onsite
representatives or otherwise, do not make PROGRAM MANAGER or PROGRAM MANAGER's personnel
in any way responsible for those duties that belong to OWNER and / or the CONTRACTOR or other entities,
and do not relieve the CONTRACTOR or any other entity of their obligations, duties, and responsibilities,
including, but not limited to, all construction methods, means, techniques, sequences, and procedures
necessary for coordinating and completing all portions of the construction work in accordance with the
construction Contract Documents and any health and safety precautions required by such construction work.
PROGRAM MANAGER and PROG.RAM MANAGER's personnel have no authority to exercise any control
over any construction contractor or other entity or their employees in connection with their work or any health
or safety precautions and have no duty of inspecting, noting, observing, correcting, or reporting on health or
safety deficiencies of the CONTRACTOR(s) or other entity or any other persons at the site except PROGRAM.
MANAGER's own personnel.
The presence of PROGRAM MANAGER's personnel at the construction site is for the purpose of providing
to OWNER a greater degree of confidence that the completed construction work will conform generally to the
construction documents and that the integrity of the design concept as reflected in the construction documents
has been implemented and preserved by the construction contractor(s). PROGRAM MANAGER neither
guarantees the performance of the construction contractor(s) nor assumes responsibility for construction
contractor's failure to perform work in accordance with the construction documents.
For this AGREEMENT only, construction sites include places of manufacture for materials incorporated into
the construction work, and construction contractors include manufacturers of materials incorporated into the
construction work
GC-52
Page 52 of 52
EXHIBIT B
LIST OF TASK ORDERS
MWH CONSTRUCTORS, INC.
AUGUSTA CAPITAL IMPROVEMENTS PROGRAM PROJECT NO. 80130
J B MESSERL Y WATER POLLUTION CONTROL PLANT
CONSTRUCTION MANAGEMENT AT RISK AGREEMENT - CONSTRUCTION SERVICES
TASK ORDER NUMBER
DESCRIPTION
GMP AMOUNT
TO-l
Early Construction/20" Force main
$3,543,069
MWH Constructors, Inc.
May 18,2006
Page I
Augusta, Georgia
IB Messerly WPCP .
Fee Schedule
EXIDBIT C
SAMPLE TASK ORDER
MWH CONSTRUCTORS, INC.
AUGUSTA CAPITAL IMPROVEMENTS PROGRAM PROJECT NO. 80130
- J B MESSERLY WATER POLLUTION CONTROL PLANT
CONSTRUCTION MANAGEMENT AT RISK AGREEMENT - CONSTRUCTION
SERVICES
CONSTRUCTION MANAGEMENT AT RISK CONTRACT
James B. Messerly WPCP 2003 Master Plan Implementation - Phase 1(80130)
TASK ORDER AGREEMENT NO.
This Task Order Agreement No. _, ("Task Order") is made pursuant to and is part of the
Construction Management at Risk Contract between the City of Augusta (the "Owner"), and MWH
Constructors, Inc., ("MWH"), dated , 2006 for the James B. Messerly WPCP Master Plan
Implementation Project (the "Contract").
RECITALS
A. In accordance with the Contract, MWH is to provide to the Owner certain Construction
Management (CM) services on a task order basis with a separate scope of work, time for performance and
price to be established for each task order; and,
B. As contemplated by the parties, individual task orders are to be governed and developed
in accordance with the terms and conditions of the Contract and developed Contract Documents, subject to
approval by the Owner; and,
C. The purpose of this Task Order is to establish the time for performance, price, and to
provide Owner's authorization to proceed with the scope of work identified herein.
D. Work under this Task Order is performed under and as part of the Contract.
THEREFORE, for'good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. SCOPE OF WORK
The Scope of Work for this Task Order is identified in Attachment A, based upon MWH's pre-
construction phase services prepared under a separate contract. Any changes to the Scope of Work are
subject to the changes clause of the Contract, any developed Contract Documents, and any other applicable
provisions of the Contract.
2. TASK ORDER PRICE
Owner shall compensate MWH for the labor, materials and services for the scope of work under
this Task Order in accordance with the terms 1ind"conditions of the Contract based on the cost of work plus
fee. The Guaranteed Maximum Price ("GMP") for this Task Order is $ , based upon the Scope
of Work in Attachment A and the Schedule in the GMP Proposal and established in accordance with the
provisions of the Contract.
3. SCHEDULE AND COMPLETION
The schedule for the work is the attached, and shall be in accordance with the anticipated date for
Substantial Completion for the entire work outlined in the attached, and as may be changed or amended
from time to time by the Parties. The parties shall use their best efforts to coordinate concurrent or
conflicting Task Order activities associated with this and other Task Orders, ongoing operational
obligations of the Owner, or other matters which might impact or otherwise interfere with the schedule for
this Task Order or the anticipated date for Substantial Completion of the Project.
2
Work under this Task Order shall commence within five (5) days of MWH's receipt of Owner's
Notice to Proceed, unless otherwise agreed in writing by the parties.
4. PAYMENT
MWH will be paid under this Task Order in accordance with the Contract.
5. INTEGRATION
It is the intent of the parties that this Task Order, and applicable contract documents, schedules,
drawings, or other related documentation or Work developed in conjunction with this Task Order which
would reasonably be part of the overall Contract Documents for the Project shall be deemed to be
integrated into the Contract.
6. OTHER PROVISIONS
Other provisions, if any are as follows:
In executing this Task Order, the undersigned representatives on behalf of the Owner and MWH
each individually represent that they have the necessary authority and approval to execute this Task Order,
and perform the services described herein.
Dated this the _ day of
2006.
(name and address)
O'\u,:)t\ Ccx"\S.yuc.~ I ~'L'
B\vd, Su.L,e3Cl:>
~OC I
OWNER:
(Signature)
(Signature)
(Printed Name)
(Printe
PRESIDENT AND CEO
(Title)
(Title)
Date:
Date:
~.C)C;'b~.
Attachment A - The Scope of Work
The Guaranteed Maximum Price ("GMP") PROPOSAL"
3
EXHIBIT D
PROJECT RATES AND INSURANCE REQUIREMENTS
MWH CONSTRUCTORS, INC.
AUGUSTA CAPITAL IMPROVEMENTS PROGRAM PROJECT NO. 80130
J B MESSERLY WATER POLLUTION CONTROL PLANT
CONSTRUCTION MANAGEMENT AT RISK AGREEMENT - CONSTRUCTION
SERVICES
Date: As of January, 2006
MWHC will procure, hold and maintain the following project insurance types and coverage with
one or more of our insurance carrier(s) who are authorized to do business in the state where the
project is located, as provided in the Agreement. These rates are valid for a period of one year
from the date of submission of this Exhibit D, and are subject to change by our insurance carriers
after such time. The current project rates and standard coverages are as follows:
Type Coverage *Rate under GMP
Commercial General Liability $1,000,000 per occurrence $4.75/$1,000 revenue
$2,000,000 aggregate
($0 deductible)
Workers Compensation
Coverage A:
As statutorily required
Coverage B:
$1,000,000 each accident
$1,000,000 disease-policy limit
$1,000,000 disease-each employee
Automotive Liability $1,000,000 combined single limit
Professional Liability $5,000,000 per claim
$1.93/$100 billing rate
Employer's Liability
(construction staff only)
$1 ,200/vehicle/yr.
$1.96/$1,000 revenue
$5,000,000 aggregate
($500,000 deductible)
Excess Liability
$10,000,000 occurrence
$1.68/$1,000 revenue
(CGL, Auto, E.L.) $10,000,000 aggregate
Contractor's Pollution Liability $5,000,000 per claim
$5,000,000 aggregate
($25,000 deductible)
NOTES:
$1.00/$1,000 revenue
Note: "Revenue" is defined as the total GMP for each Task Order(s).
EXHIBIT E
COMPENSATION SCHEDULE
MWH CONSTRUCTORS, INC.
AUGUSTA CAPITAL IMPROVEMENTS PROGRAM PROJECT NO. 80130
J B MESSERLY WATER POLLUTION CONTROL PLANT
CONSTRUCTION MANAGEMENT AT RISK AGREEMENT
Labor Classification
Client Service Manager
Operations Director
Director of Quality
Construction Manager
QA/QC Manager
Procurement Leader
Health & Safety Manager
Startup & Training Manager
Project Accountant
Project Controls/Scheduler
Office Engineer
General Superintendent
Asst. Superintendent
Administrative Support
Estimating Director
Estimating Manager
Chief Estimator
Lead Estimator
Principal Estimator - Mechanical
Senior Estimator - Electrical
Senior Estimator - Concrete
Senior Estimator - Site
Senior Estimator - Buildings
Senior Estimator - Equipment
Estimating Technician I
Purchasing Agent - Equipment
Estimating Administrative Assistant
Base Rate 2, 3
($/hour)
$146.00
$146.00
$146.00
$135.00
$135.00
$141.00
$143.00
$116.00
$87.00
$116.00
$98.00
$111.00
$88.00
$55.00
$185.00
$150.00
$144.00
$144.00
$136.00
$124.00
$117.00
$117.00
$127.00
$124.00
$38.00
$92.00
$52.00
Notes:
1. Rates are effective through March 1, 2007.
2. Base hourly rate includes salary, overhead, G&A, and applied project cost (APC).
3. Costs serve as basis for detennining Cost of Work.
MWH Constructors, Inc.
May 18, 2006
Page 1
Augusta, Georgia
IB Messerly WPCP
Compensation Schedule