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HomeMy WebLinkAboutAmendement To The Standard Form Of Agreements Augusta Richmond GA DOCUMENT NAME: A tY1 e.roI tY'\ enc I:P tic 3-&:.."d"'-Yd +OOY' oP ~e";;')ci~" DOCUMENT TYPE: ~ Ge-ry-, e..nt YEAR: 0::2- BOX NUMBER: l7 FILE NUMBER: I Ca359 NUMBER OF PAGES: G:, ~, .. Amendment to the Standard Form of Agreement Between Owner and Design Builder - Cost Plus Fee With a Guaranteed Maximum Price THIS AMENDMENT, is made and entered into this .3l'dday of September 2002, by and between the Augusta, Georgia, (hereinafter "Owner") and MWH Americas (formerly known as Montgomery Watson Americas, Inc., hereinafter "Design-Builder"), a Delaware corporation; Recitals WHEREAS, the above parties entered into a Standard Form of Agreement Between Owner and Design Builder - Cost Plus Fee With a Guaranteed Maximum Price dated June 19, 2001 ("Prime Agreement") and General Conditions dated May 25, 2001, attached to said Prime Agreement; WHEREAS, Design-Builder agreed to provide engineering design and construction services in accordance with the Prime Agreement, and any amendments, exhibits, and attachments thereto, in consideration of certain fees and payments by Owner; WHEREAS, in accordance with Section 1.4 of the Prime Agreement, Design-Builder has submitted a mutually agreed upon Proposal to Owner; Now, THEREFORE, the parties agree and covenant as follows: 1. Scope of Work 1.1 Design-Builder shall perform the Work in accordance with Exhibit A-I dated August 19, 2002 (this Exhibit A amends the original Exhibit A dated June 5, 2001), of the Prime Agreement, as may be modified or amended by the parties from time to time. 2. Amendments to the Prime Agreement. The following Sections of the Prime Agreement are hereby amended to read: Article 2 Contract Documents 2.1.2 This Agreement, including Exhibit A and Exhibit A-I - Scope of Work, dated August 19,2002, Exhibit B - Project Cost, Exhibit C - Schedule, Exhibit D - Insurance Requirements, Exhibit E - Bonds, Exhibit F - Owner's Permit List, and Exhibit G - Labor Rates (this Exhibit supercedes Exhibit B of the original Agreement), Exhibit H - Water Quality Commitment and attachments, executed by Owner and Design-Builder; 2.1.7 Owner's Project Criteria as set forth in Exhibit A, as amended by Exhibit A-I; and 4' Article 5 Contract Time 5.2 Substantial Completion and Final Completion 5.2.1 Substantial Completion of the entire Work shall be achieved no later than twenty six (26) months after the Date of Commencement, except as adjusted from time to time in accordance with Section 9.1.1.3 of the General Conditions. 5.2.2 Interim milestones and/or Substantial Completion or identified portions of the Work shall be achieved as set forth in Exhibit C. Article 6 Contract Price 6.2 Design-Builder's Fee 6.2.2 Phase II Project Implementation. Design-Builder's Fee for Phase II Project Implementation, Section 1.6 shall be: 6.2.2.1 A lump sum fee for all professional services as set forth in Exhibit B, including but not limited to, design management and program management as set forth in Tasks 1 through 6 of said Exhibit; 6.2.2.2 Twelve percent (12%) of the initial $30 million of the Cost of the Work, as adjusted in accordance with Section 6.2.3 below; 6.2.2.3 Ten percent (10%) of the proceeding $10 million of the Cost of the Work, as adjusted in accordance with Section 6.2.3 below; and 6.2.2.4 Eight percent (8%) of the remaining Cost of the Work, as adjusted in accordance with Section 6.2.3 below. 6.3.1 Wages of direct employees of Design-Builder performing the Work at the Site or, with Owner's agreement, at locations off the Site, provided, however, that the costs for those employees of Design-Builder performing design services shall be calculated on the basis of those rates set forth in Exhibit G of this Agreement. 6.3.3 Wages or salaries of Design-Builder's personnel stations at Design- Builder's principal or branch offices as defined in Exhibit G. 6.3.4 Costs incurred by Design-Builder for employee benefits, premiums, taxes, insurance, contributions, and assessments required by law, collective bargaining agreements, or which are customarily paid by Design-Builder, to the extent such costs are based on wages and salaries paid to employees of Design-Builder covered under Sections 6.3.1 through 6.3.3 hereof, not to exceed the rates set forth in Exhibit G. 2 0; 6.5.1 GMP Established Upon Execution ofthis Agreement 6.5.1.1 Design-Builder guarantees that it shall not exceed the GMP to be established as a part of the Proposal (Section 1.4). Design-Builder does not guarantee any specific line item provided as part of the GMP, but agrees that it will be responsible for paying all costs of completing the Work which exceed the GMP, as adjusted in accordance with the Contract Documents. Documents used as a basis for the GMP as set forth in Exhibit B dated August 19, 2002, may be amended by the parties from time to time. Said documents include the contract documents as set forth in section 2.1.2. 6.5.2.4 Failure to Accept the GMP Proposal. If Owner rejects the GMP Proposal, or fails to notify Design-Builder in writing that it accepts the GMP Proposal and issue a Notice to Proceed on or before October 8, 2002, the GMP Proposal shall be deemed withdrawn and of no effect. In such event, Owner and Design-Builder shall meet and confer as to how the Project will proceed, with Owner having the following options: 6.5.3 Savings 6.5.3.1 If the sum of the actual Cost of the Work and Design-Builders' Fee (and if applicable, any prices established under Section 6.1.2 hereof) is less than the GMP, excluding any Allowance, as such GMP may have been adjusted over the course of the Project, the difference ("Savings") shall be shared as follows: The first Savings of Five percent (5%) of GMP, excluding any Allowance, shall be shared Fifty percent (50%) to Design-Builder and Fifty percent (50%) to Owner, provided the Design-Builder is not assessed Liquidated Damages under Section 5.4, with the balance of Savings, if any, shared Twenty-Five percent (25%) to Design-Builder and Seventy-Five percent (75%) to Owner. 6.5.4 Change in Law 6.5.4.1 Design-Builder shall be entitled to an equitable adjustment in the GMP, completion Schedule, or both, in connection with, or as result of, the adoption, enactment, promulgation, amendment, legal interpretation or other change of any Applicable Law (as defined below) prior to Final Acceptance that requires, as determined in Design-Builder's discretion and agreed to by the Owner, the redesign, modification, alteration or reconfiguration of the Project or its operation. Owner agrees to issue a Change Order, per Article 9 of the General Conditions, equal to any such adjustment required under this Section. "Applicable Law" means any law, rule, code, regulation, guideline, judgement, decision, order, or decree of any governmental body, agency, or court having competent jurisdiction applicable to (1) the design, acquisition, permitting, construction, equipping, possession, start-up, testing, acceptance, operation, maintenance, repair or 3 replacement of the Project or any component thereof; or (2) the delivery, treatment, storage, testing, or supply of water. Article 8 Termination for Convenience 8.3 If Owner terminates this Agreement pursuant to Section 8.1 above and proceeds to design and construct the Project through its employees, agents or third parties, Owner's rights to use the Work Product shall be as set forth in Section 4.1 hereof. 3. Amendments to the General Conditions. The following Sections of the General Conditions of the Prime Agreement are hereby amended to read: 2.6 Government Approvals and Permits 2.6.1 Except as identified in an Owner's Permit List attached as Exhibit F to the Agreement, Design-Builder shall obtain and pay for all necessary permits, approvals, licenses, government charges and inspection fees required for the prosecution of the Work by an Government or quasi-government entity having jurisdiction over the Project. 5.1.5 Within ten (10) days of Design-Builder's receipt of the Notice to Proceed, Design Builder shall provide owner with certificates evidencing that (i) all insurance obligations required by the Contract Documents are in full force and in effect and will remain in effect for the duration required by the Contract Documents and (ii) no insurance coverage will be canceled, renewal refused, or materially changed unless at least thirty (30) days prior written notice is given to Owner. 5.3.3 Within ten (10) days of Design-Builder's receipt of the Notice to Proceed, Design Builder shall provide owner with certificates evidencing that (i) all insurance obligations required by the Contract Documents are in full force and in effect and will remain in effect for the duration required by the Contract Documents and (ii) no insurance coverage will be canceled, renewal refused, or materially changed unless at least thirty (30) days prior written notice is given to Owner. Design-Builder's property insurance shall not lapse or be cancelled if Owner occupies a portion of the Work pursuant to Section 6.6.3 hereof. Design- Builder shall provide Owner with the necessary endorsements from the insurance company prior to occupying a portion of the Work. 6.6.1 Design-Builder shall notify Owner when it believes the Work, or to the extent permitted in the Contract Documents, a portion of the Work, is substantially complete and satisfies the performance criteria in Exhibit H. Within five (5) days of Owner's receipt of Design-Builder's notice, Owner and Design- Builder will jointly inspect such Work to verify that it is substantially complete in 4 accordance with the requirements of the Contract Documents and that any Georgia EPD required certification or permits have been obtained. If such Work is substantially complete, Owner shall prepare and issue a Certificate of Substantial Completion that will set forth (i) the date of Substantial Completion of the Work or portion thereof, (ii) the remaining items of Work that have to be completed before final payment, (iii) provisions (to the extent not already provided in the Contract Documents) establishing Owner's and Design-Builder's responsibility for the Project's security, maintenance, utilities and insurance pending final payment and (iv) an acknowledgement that warranties commence to run on the date of Substantial Completion, except as may otherwise be noted in the Certificate of Substantial Completion. Article 9 Chan2:es to the Contract Price and Time 9.6 Acts of Terrorism 9.6.1 Owner acknowledges that acts of terrorism and terrorist activities are risks that cannot be reasonably ascertained or quantified, are beyond the control of Design-Builder, and were not specifically contemplated or included within Owner's Project Criteria or Scope of Work herein. Owner further acknowledges that acts of terrorism and terrorist activities are as of the date of this Agreement excluded from or not subject to insurance coverage, including coverage as set forth under Article 5 of the General Conditions of this Contract. Owner accepts risk of loss associated with any terrorism or terrorist activity, and releases and holds Design-Builder harmless from any obligations and responsibilities to the extent such activities unreasonably interfere with, impair, delay or prevent Design-Builder from completing its obligations herein. Design-Builder shall provide prompt written notice to Owner, but no later than 14 days of any terrorist act, of any impact to Design-Builder (to the extent reasonably ascertainable or quantifiable), and shall be entitled to an equitable adjustment in contract time and price in accordance with Article 9 of the General Conditions, which may exceed the GMP. Owner shall have the right to terminate this Agreement in accordance with the provisions of 8.1 herein in the event of any act of terrorism or terrorist activity that materially impacts its ability to perform it obligations herein. 12.3 The validity, construction and performance of this Amendment and all disputes between the parties arising out of or related to this Amendment shall be governed by the laws of the State of Georgia, without regard to the law as to choice or conflict of law. ' 4. Miscellaneous Provisions 4.1 The validity, construction and performance of this Amendment and all disputes between the parties arising out of or related to this Amendment shall be governed by the laws of the State of Georgia, without regard to the law as to choice or conflict of law. 5 . . 4.2 This Amendment embodies the entire agreement and understanding between the parties pertaining to this amendment of the Prime Agreement, and supersedes all prior agreements, understandings, representations and discussions, whether oral or written, of the parties, pertaining to this Amendment. 4.3 The section captions or headings contained herein are in no way intended to interpret or define the terms and conditions herein. They are intended for reference purposes only. 4.4 Design-Builder shall not engage in employment discussions with an official or employee of OWNER who has worked or participated personally and substantially in the bidding, contracting, or the contracting process for this contract, for the purpose of inducing or attempting to induce such official or employee to leave Augusta's employ during the term of this agreement and for a 12 month period following its termination for any reason. Failure to comply with this provision shall be considered a breach of the contract and grounds for rescission of the Prime Agreement. IN WITNESS WHEREOF, the Owner and Design Builder have executed this Amendment as of the date first written above. OWNER DESIGN-BillLDER Augusta \......c..,-, Montgomery Watson ~ Signature: Signature: ~~0c Printed Name: \5DIo i c (.L "-1-- Mc1'1cv I Printed Nam . Title: Title: , . . PRESIDENT AND CEO ATTESTATION Jt$~IuwA/ le k 6