HomeMy WebLinkAboutTOTAL SYSTEMS COMMISSIONING INC
,-
\. "l
...
~UL 3 (1 'Z008
.' f
LUMP SUM AGREEMENT FOR
COMMISSIONING AUTHORITY SERVICES
BETIv'EEN
Augusta, Georgia, a political subdivision of the State of Georgia
Acting by and through the
Richmond County Commission
Hereinafter Referred to as Owner
AND
Total Systems Commissioning, Inc.
Hereinafter Referred to as COIIu:nissioni;ng Authority
PRO,JECT: New Augusta ,Judicial Center
DATE: July 15, 2008
=
'"
Article 1
Article 2
Article 3
Article 4
Article 5
Article 6
Article 7
Article 8
Article 9
Article 10
Article 11
Arti.cle 12
Artiele 13
Article 14
Article 15
Exhibit A
Exhibit B
Exhibit C
AGREEMENT FOR COMMISSIONING AUTHORITY SERVICES
TABLE OF CONTENTS
Page
Definitions.......................... ................................... ..... .........................................1
Relationship of the Parties.................................................. .............. ....... ..........4
Basic Services.................................................................. ................................... 5
Compensati.on....... ......... ..... ..... ... ..... ..... ...... ..... ... ........ ..... ..... ...... ..... ... ..... ... ..... ... 7
Period of Services............................................................. ............. ................ .....9
Owner's Responsibilities.. ................ ........................ .............. ..... ....................... 9
Additional Services........................................................ .................................. .10
Notice s .............................................................................................................. 10
Insurance............. ........ .................. ...... ........ ..... ........ ........ .............. ..... .......... ...11
Indemnifica tion ................................................................................................ 12
Termination of Agreement.................................................. ........... ................ ..12
Dispute Resolution.......................................................................................... .14
Successors/Assignmen ttrhird Parties.. ........................... ....... ........................ .15
Ownership of Documentsl
Confidential Information.................. ... ................ .......................................... ..15
Additional Provisions.......... ........................................................................... ..15
Design, Construction and Equipment Budget................................................ Al
Building Program............................................................. ........ ....................... Bl
Scope of Services and Schedule of Payments... ... ...... ... ... ... ... ... ... ... ....... C 1
ARTICLE 1
DEFINITIONS
0:
AGREEMENT FOR
COMMISSIONING CONSULTING SERVICES
AGREEMENT made this 15th day of July, 2008, BETWEEN the Owner: Augusta. Georgia.
a political subdivision of the State of Georgia. acting by and through the Richmond County
Commission: and the Commissioning Authority: Total Systems Commissioning. Inc., for
Professional Services in connection with the Project known as: Building Commissioning
Services for the new Augusta Judicial Center.
The Construction Program Manager for the Project is: Heery International, Inc.
The Facility User is: State of Georgia 10th ,Judicial District.
The Architect for the project is: Turner Associates Architects and Planners, Inc.
The Owner and the Commissioning Authority agree as set forth below:
The following words and phrases where appearing in initial capitalization, shall for the
purposes of this Agreement have the following meanings:
1.1 PROJECT. The Project shall be Commissioning consulting work associated with
architectural/engineering design, construction, equipment testing/start-up and
associated work, as described herein, for new Augusta Richmond County Judicial
Center, including design, bidding, construction administration and post-
construction services.
1.2 SERVICES. The Services to be performed by the Commissioning Authority under
this Agreement shall consist of the Basic Services and any Additional Services
both as defined herein.
1.3 BASIC SERVICES. Basic Services shall consist of the commissioning services as
described in Article 3 and as indicated and specifically designated in Exhibit "C"
to be performed and provided by the Commissioning Authority under this
Agreement in connection with the Project.
1.4 ADDITIONAL SERVICES. Additional Services shall consist of the
commissioning services agreed to be performed by the Commissioning Authority
in connection with the Project but which are not specifically designated as Basic
Services in Article 3.
2
1.5 WORK. The Work shall consist of the Commissioning and related services
(excluding the Services rendered by the Design Consultant) performed on the
Project.
1.6 PROJECT DOCUMENTS. The Project shall be completed in accordance with the
following Project Documents which were prepared or approved by the Owner
prior to the execution of this Agreement between the Commissioning Authority
and the Owner:
1. Owner/Construction Program Manager Contract.
2. Project Verification Phase Report, dated November 8, 2007, including any
modifications mutually agreed to, in writing, between the parties to this
agreement.
3. Master Schedule.
1.7 CONSTRUCTION CONTRACT DOCUMENTS. The Construction Contract
Documents shall consist of the plans and specifica tlons prepared by the Design
Consultant and Commissioning Authority, and any addenda and change orders
thereto, the Owner's Project Manual documents such as the Conditions of the
Contract, Contract Forms, Bidding Requirements, etc., and the Owner-Contractor
agreement, all of which shall be compatible and consistent with this Agreement
and the Owner/Construction Program Manager Contract.
1.8 CONTRACTOR. The Contractor is the person or entity which enters into an
agreement with the Owner to perform the construction of or any construction on
the Project, including, without limitation, the providing of labor, materials, and
equipment incorporated or to be incorporated into the Project. The term
"Contractor" means the Contractor or its authorized representative, but excludes
the Construction Program Manager and the Commissioning Authority.
1.9 BASIC SERVICES COMPENSATION. Basic Services Compensation shall be the
lump sum fee Designated in Article 4 to be paid by the Owner to the
Commissioning Authority in connection with the performance of the Basic
Services by the Commissioning Authority.
1.10 ADDITIONAL SERVICES COMPENSATION. Additional Services Compensation
shall be the fees determined in accordance with Article 7 to be paid by the Owner
to the Commissioning Authority in connection with the performance of Additional
Services.
1.11 REIMBURSABLE EXPENSES. In connection with Additional Services,
Reimbursable Expenses are those actual expenditures made by the
Commissioning Authority, its employees, or its Professional Consultants in the
interest of the Project including but not limited to, County standard per diem
out-of-pocket expenses for travel and living expenses in connection with the
Project, long distance telephone, telex, expressage, professional consultants (other
than those required for the performance of the Basic Services), and Owner-
approved document reproduction. Pre-approved document reproduction mq)enses
3
for Basic Services include expenses incurred for review submittals required by the
Agreement, Bidding Documents, exclusive of addenda, and documents issued for
permitting and/or eonstruetion. Travel expenses shall be eovered by Basie
Services, except where the number of out-of-town trips during the Commissioning
phase exceeds eighteen (IS).
1.12 OWNER/CONSTRUCTION PROGRAM MANAGER CONTRACT. The
Owner/Construction Program Manager Contract is the agreement between the
Owner and the Construetion Program Manager dated May 6, 2004, and amended
in July, 200S, for the performance of construction program management services
on the Project.
1.13 BUILDING PROGRAM. The Building Program or "Program" is the dctailed
written summary of the requirements of the facility which sets forth the Owner's
design objectives, eonstraints and eriteria, including space requirements and
relationships, quality levels, flexibility and expandability, special equipment and
systems and site requirements, as described in Exhibit "B".
1.14 MASTER SCHEDULE. The Master Schedule is a graphic display of the major
activities, phascs, sequences and timing of the major project activities for design,
eonstruction procurement, construction and occupancy as described in "Exhihit
C."
1.15 DESIGN PHASE CHANGE ORDER. A Design Phase Change Order is the form
of documentation from the Owner approving and authorizing a modification to
the Program, Budget, Master Schedule, or previously approved Commissioning
Phase documents.
1.16 DESIGN CONSULTANT. The architect/engineer hired by the Owner to design
the Judicial Center.
4
ARTICLE 2
RELATIONSHIP OF THE PARTIES
2.1 COMMISSIONING CONSULTING SERVICES. The Commissioning Authority
shall provide professional building commissioning consulting services for the
Project in accordance with the terms and conditions of this Agreement. The
Commissioning Authority's performance of services shall be as professional
consultant to the Owner to carry out the activities of Building Commissioning and
to provide the technical documents and supervision to achieve the Owner's
Project objectives.
2.2 COMMISSIONING AUTHORITY SERVICES. The Commissioning Authority
understands that the Owner has entered into a separate contract with an
architect, which includes related engineering, and agrees to communicate,
through the Construction Program Manager, with the architect on matters
pertaining to building systems, including mechanical, electrical, pltunbing and
exterior envelope, to the extent needed to support the architect's mission to
design the facility and its systems in accordance with the design intent.
2.3 OWNER REPRESENTATION. The Construction Program Manager is under
separate contract with the Owner to provide construction program management
services. The Construction Program Manager has no Commissioning
responsibilities of any nature. None of the activities of the Construction Program
Manager supplant or conflict with any other services and responsibilities
customarily furnished by the Commissioning Authority or subconsultants in
accordance with gcncrally acceptcd commissioning practices except as otherwise
modified by this Agreement. The Commissioning Authority understands and
agrees that the Construction Program Manager is the Owner's exclusive
representative to the Commissioning Authority and Contractor insofar as this
Agreement is concerned. All instructions by the Owner to the Commissioning
Authority relating to services performed by the Commissioning Authorit.y will he
issued or made through the Construction Program Manager. All communications
and submittals of the Commissioning Authority to the Owner and Contractor
shall be issued or made through the Construction Program Manager unless the
Construction Program Manager shall otherwise direct. The Construction
Program Manager shall have the authority to establish procedures, consistent
with this Agreement, to be followed by the Commissioning Authority and
Contractor and to call periodic conferences to be attended by the Commissioning
Authority, and his subconsultants, throughout the term of this Agreement.
2.4 The Commissioning Authority understands and agrees that it is not a third party
beneficiary of any contract between the Owner and the Construction Program
Manager or of their performance thereunder; nor is Commissioning Authority a
third party beneficiary of any contract between the Owner and the
Commissioning Authority. Commissioning Authority waives any rights, claims or
5
causes of action it may have as an alleged third party beneficiary of any such
contracts or of the performance of the parties thereunder.
2.5 COMMISSIONING AUTHORITY REPRESENTATION.
2.5.1 The Commissioning Authority shall provide a list of all consultants which the
Commissioning Authority intends to utilize relating to the Project. The list shall
include such information on the qualifications of the consultants as may be
requested by the Owner. The Owner, through the Construetion Program
Manager, reserves the right to review the consultants proposed, and the
Commissioning Authority shall not retain a consultant to which the Owncr,
through the Construction Program Manager, has a reasonable objection. The
Commissioning Authority shall provide to the Owner, through the Construction
Program Manager, a list of the proposed key project personnel of the
Commissioning Authority and its consultants to be assigned to t.he Project.. This
list shall include such information on the professional background of each of the
assigned personnel as may be rcquested by the Owncr, through the Construction
Program Manager. Such key personnel and consultants shall be satisfactory to
the Owner and shall not be changed except with the consent of the Owner unless
said personncl ccase to bc in thc Commissioning Authority's (or its consultants, if
applicable) employ.
2.6 DIVISION OF RESPONSIBILITIES/SERVICES. The Commissioning Authority
understands and agrees that should the Construction Program Manager provide
the Commissioning Authority with any estimating assistance, cost or time control
recommendations or other consultation, recommendations or suggestions, any or
all such activities on the part of the Construction Program Manager or any other
representative of the Owncr shall in no way relicve thc Commissioning Authority
of the responsibility of fulfilling its obligations and responsibilities under this
Agreement.
ARTICLE 3
BASIC SERVICES
3.1 SCOPE OF SERVICES.
3.1.1 The Basic Services to be provided by the Commissioning Authority shall be
performed in accordance with attached Exhibit C.
3.2 COMMISSIONING AUTHORITY'S PROFESSIONAL RESPONSIBILITY AND
STANDARD OF CARE.
3.2.1 By execution of this Agreement, the Commissioning Authority warrants that (a) it
is an experienced commissioning firm having the skill and the legal and
professional ability neceSSaI'y to perform all the Services J'equired of it under this
Agreement in connection with the design, construction and commissioning of a
project having the scope and complexity of the Project contemplated herein; (b) it
has the capabilities and resources necessary to perform its obligations hereunder;
and (c) it is familiar with all current laws, rules and regulations which are
6
applicable to the Commissioning of the Project (such laws, rules and regulations
including, but not limited to, all local ordinances, requirements of building codes
of city, county, state and federal authorities which are applicable to the Project,
local sanitary laws and rules and regulations, and all orders and interpretations
by governing public authorities of such ordinances, requirements, laws, rules and
regulations in effect at the time of commencement of services on the Project), and
that all drawings, specifications and other documents prepared by the
Commissioning Authority shall be prepared in accordance with and shall
accurately reflect and incorporate all such laws, rules and regulations.
3.2.2 The Commissioning Authority hereby represents and agrees that the plans,
specifications and other documents prepared by it pursuant to this Agreement
shall be complete and functional for the purposes intended, except as to any
deficiencies which are due to causes beyond the control of the Commissioning
Authority, and that the Work, if implemented in accordance with the intent
established by such plans, specifications and other documents, shall be sound,
complet.e and suitable for the purposes for which it is intended.
3.2.3 The Commissioning Authority shall be responsible for any errors, inconsistencies
or omissions in their plans, specifications and other documents. While the
Commissioning Authority cannot guarantee the various documents required
herein to be completely free of minor human errors and omissions, it shall be the
responsibility of the Commissioning Authority throughout the period of
performance under this Agreement to use due care with professional competence.
The Commissioning Authority will correct at no additional cost to the Owner any
and all errors and omissions in the plans, specifications and other documents
prepared by the Commissioning Authority. The Commissioning Authority further
agrees, at no additional cost, to render assistance to the Owner in resolving
problems relating to the Commissioning documents.
3.2.4 In the event of a construction change order resulting from completed construction
work that must be demolished, disassembled, redone or removed, as a result of
errors or omissions in the Commissioning Authority's work, the Commissioning
Authority assents to the Owner's right to withhold payments to Commissioning
Authority, in the amount. of the change order that is attributable to the errors and
omissions. The Owner shall not have the right to unjust enrichment or
withholding payments to the Commissioning Authority for portions of change
orders that convey reasonable value to Owner, such as approved work or
materials associated with the finished building.
3.3 PROJECT REQUIREMENTS.
3.3.1 Attached hereto and made a part of this Agreement as Exhibit "A" is the
Construction Budget. The Project Construction Budget shall be defined as the
total cost of construct.ing the Project., as illustrated in Exhibit "A" hereto.
7
3.3.2 Incorporated herein and made a part of this Agreement by reference as Exhibit
liB" is the Building Program which defines the physical and environmental
parameters for t.he Project and establishes t.he design objectives and criteria.
3.4 PROJECT CONFERENCES.
3.4.1 Throughout all phases of the Project, the Commissioning Authority and its
consultants shall meet periodically with the Owner, Contractor and Construction
Program Manager no less than as indicated herein. Attendees shall be as jointly
determined by the Owner, Construction Program Manager and Commissioning
Authority. As a minimum, regularly scheduled meetings which the
Commissioning Authority will attend include:
3.4.1.1 (2) Design Reviews.
3.4.1.2 Prebid conference.
3.4.1.3 Commissioning Launch Meeting
3.4.1.4 Preconstruction Conferences related to major building systems to be
commissioned.
3.4.2 The Commissioning Authority shall be responsible for scheduling and attending
any and all meetings necessary to properly coordinate the Commissioning effort.
ARTICLE 4
COMPENSATION
4.1 BASIC SERVICES COMPENSATION
4.1.1 The Owner shall compensate the Commissioning Authority in accordance with
the terms and conditions of this Agreement, including the following:
1.1.2 For the Basic Services of the Commissioni;ng Authority, Basic Services
Compensation shall be in the amount of Ninety-Nine Thousand Four Hundred
Ninety-Six Dollars ($99A96.00).
4.1.3 The Basic Services Compensation stated in paragraph 4.1.1 includes all
compensation and other payments due the Commissioning Authority (manpower,
overhead, profit, di.rect costs, etc.) in the performance of the Basic Services.
4.2 PAYMENTS TO THE COMMISSIONING AUTHORITY. Payments on account of
the Commissioning Aut.hority shall be made as follows:
4.2.1 Payments for Basic Services shall be made as services are completed, III
accordance with Exhibit C.
8
4.2.2 No deductions shall be made from the Commissioning Authority's Basic Services
Compensation on account of penalty, liquidated damages, retainage or other sums
withheld from payments to Contractor.
4.2.3 If the Project is suspended for more than six months or abandoned in whole or in
part by the Owner, the Commissioning Authority shall be paid compensation for
services performed prior to receipt of written notice from the Owner of such
suspension or abandonment, and all reasonable termination expenses resulting
from such suspension or abandonment. If the Project is resumed after being
suspended for more than six months, the Commissioning Authority's Basic
Services Compensation shall be equitably adjusted.
4.2.4 All payment requests shall be submitted to the Construction Program Manager
for processing, in a format acceptable t,o the Construction Program Manager.
4.3 ADDITIONAL SERVICES COMPENSATION.
4.3.1 With respect to any other Additional Services, as described in Article 7 herein,
performed by the Commissioning Authority hereunder, the Commissioning
Authority and Owner shall negotiate an equitable adjustment to the Basic
Services Compensation. However, if negotiations are not successful prior to the
time the additional services are needed, the Owner may elect to contract with
another entity to perform the Additional Servicc(s); or the Owner may direct the
Commissioning Authority to proceed with the Additional Services on a time spent
basis with Additional Compensation Services to be computed as follows:
4.3.1.1 Principal's time at the fixed rate of One htmdred twenty Dollars ($120.00) per
hour. For the purposes of this agreement, the Principals are: Chike John, Dick
Dutro and ErinJ\1ace.
4.3.1.2 Employee's time computed at a multiple of two times the employee's Direct
Payroll Expense. Direct Payroll Expense includes cost of salaries and of
mandatory and customary benefits such as statutory employee benefits,
insurance, sick leave, holidays and vacations, but shall not exceed 1.3 times the
base hourly wage of each employee.
4.3.1.3 Reimbursable Expenses incurred while performing Additional Services shall be
computed at a multiple of 1.10 times actual cost.
4.3.1.4 Should the Owner elect to contract with a separate entity to perform Additional
Services, as described under Paragraph 4.3.1, the Commissioning Authority shall
comply with reasonable requests from Owner, without additional compensation,
with regards to Commissioning coordination with the respective separate entity.
9
4.3.2 Payments for Additional Services of the Commissioning Authority shall be made
monthly upon presentation of the Commissioning Authority's statement of
services, fully supported by invoices, time cards, and other documentation as
requested by the Owner.
4.4 ACCOUNTING RECORDS.
4.4.1 Records of the Commissioning Authority with respect t.o Additional Services and
payroll, consultant and other expenses (including Reimbursable Expenses)
pertaining to the Project, shall be kept on generally accepted accounting
principals and shall be available t.o the Owner or its authorized representative for
inspection and copying at mutually convenient times.
4.4.2 At the request of the Owner or its authorized representative the Commissioning
Authority will supply in a timely manner and certify as accurate, unaltered copies
of all time sheets, invoices, and other documents to substantiate and document
any and all Additional Services and Reimbursable Expenses.
ARTICLE 5
PERIOD OF SERVICE
5.1 Unless earlier terminated as provided in Article 11 hereof, this Agreement shall
remain in force for a period which may reasonably be required for the Basic
Services and Additional Services hereunder. However, the provisions of the
Agreement relating to Professional Responsibility (paragraph 3.2); Dispute
Resolution (Article 12); Professional Liability coverage (Article 9); Indemnification
(Article 10); and Ownership of Documents/Confidential Information (Article 14)
shall remain in effect after termination of the other provisions of the Agreement.
5.2 If the Owner materially revises the Project, a reasonable time extension and/or
credit shall be negotiated between the Commissioning Authority and the Owner.
5.3 Time is of the essence of this Agreement.
ARTICLE 6
OWNER'S RESPONSIBILITIES
6.1 The Owner shall provide full information regarding the requirements for the
Project.
6.2 The Owner shall examine documents submitted by the Commissioning Authority
and shall render decisions pertaining thereto promptly, to avoid unreasonable
delay in the progress of the Commissioning Authority's Services.
6.3 The Owner shall furnish copies of design architect/engineer's interim reVIew
submittals. including Design Development, GMP and fmal CD's, for use m
performing the scope of work described herein.
10
6.4 The Owner shall furnish copies of design architect/engineer's bid documents and
construction documents..
6.5 The Owner shall furnish such legal, accounting, and insurance counseling
services as the Owner may deem necessary for the Project, and such auditing
services as it. may require to ascertain how, or for what purposes, t.he Contractor
has used the moneys paid to it under the Construction Contract.
6.6 All services, information, surveys and reports required of the Owner, shall be
furnished at the Owner's expense and the Commissioning Authority shall be
entitled to rely upon their accuracy and completeness.
6.7 The Owner shall furnish information and approvals required of it expeditiously,
for orderly progress of the Work and shall endeavor to adhere as closely as
possible with the time conditions for such Owner activities as set forth in all
approved schedules for the Project.
ARTICLE 7
ADDITIONAL SERVICES
7.1 The Owner will compensate the Commissioning Authority for authorized
Additional Services performed to the extent that they exceed the obligations of
the C,ommissionillg Authority under this Agreement. Any Authorization shall be
in writing from the Owner listed in Article 8.
ARTICLE 8
NOTICES
8.1 Any notice required by this Agreement or other communications to either party
by the other shall be in writing and deemed given when delivered personally or
five (5) days after deposit, in the United States Post Office, postage prepaid
certified mail, return receipt requested, addressed as follows, or to such other
address as shall be duly given by notice meeting the requirement of this Article.
8.1.1
To Owner:
Mr. Fred Russell
Augusta Richmond County Administrator
530 Greene Street,
Room 801
Augusta, GA 30911
INSURANCE DESCRIPTION
Minimum Required Coverage
8.1.2 To Commissioning Authority:
!\1r. Dick Dutro
Total Systems Commissioning, Inc.
2020 Howell Mill Road
Suite C Box 309
Atlanta, GA 30318
8.1.3 With Copy to Construction Program Manager: ,
!\1r. Bob Munger
Heery Tnternational, Tnc.
501 Greene Street; Suite 313
Augusta, GA 30901
ARTICLE 9
INSURANCE
9.1 The Commissioning Authority shall purchase and maintain insurance for
protection from claims under worker's or workmen's compensation acts; claims
resulting from negligent acts or omissions for damages because of bodily injury,
including personal injury, sickness, disease or death of any of the Commissioning
Authority's employees or any other person; claims for damages because of injury
to or destruction of personal property including loss of use resulting therefrom;
and claims arising out of the performance of this Agreement and caused by
negligent acts or omissions for which the Commissioning Authority is legally
liable. Minimum limits of coverage shall be:
a. Worker's Compensation
Statutory
b. Public Liability
Bodily Injury: Each Person
Bodily Injury: Each Accident
Property Damage: Each Accident
$1,000,000 Combined Limit
$100,000
$200,000
$100,000
c. Automobile Liability & Property Damage
Bodily Injury: Each Person
Bodily Injury: Each Accident
Property Damage; Each Accident
$1,000,000 Combined Limit
$100,000
$200,000
$100,000
d. Professional Liability:
$1,000,000 per Loss/Claim
9.2 Evidence of such insurance shall be furnished to the Owner, and the Owner shall
receive thirty (30) days prior written notice of any cancellation, non-renewal or
reduction of coverage of any of the policies. Upon notice of such cancellation, non-
11
12
renewal or reduction, the Commissioning Authority shall procure substitute
insurance so as to assure the Owner that the minimum limits of coverage are
maintained continuously throughout the period of t.his Agreement.
9.2.1 The Commissioning Authority shall deliver to the Owner a certificate of
insurance for its Professional Liability coverage annually, so long as it is required
to maintain such coverage under paragraph 9.4.
9.3 All insurance policies (with the exception of Professional Liability) required under
this Agreement shall name the Owner as an additional insured for the insurance
and shall contain a waiver of subrogation against the Owner.
9.4 The Commissioning Authority shall maintain in force during the performance of
this contract and for 2 years after final completion of the Project, the Professional
Liability insurance coverage referenced above.
ARTICLE 10
INDEM~lFICATION
10.1 Notwithstanding anything to the contrary contained herein, the Commissioning
Authority shall indemnify and hold harmless the Owncr, the Construction
Program Manager and their Authorit.ies and employees from and against all
claims, damages, losses and expenses, including but not limited to attorney's fees,
arising out of or rcsulting from (i) the Commissioning Authority's pcrformance or
failure to perform its obligations lmder this Agreement and (ii) any daim,
damage, loss or expense attributable to bodily injury, sickness, disease or death,
or to injury to or destruction of personal property including the loss of use
resulting therefrom and caused in whole or in part by any negligent act or
omission of the Commissioning Authority, anyone directly or indirectly employed
by thc Commissioning Authority or anyone for whose acts the Commissioning
Authority may be liable, Such obligation shall not be construed to negate, abridge
or otherwise reduce any other right or obligation of indemnity which would
otherwise exist as to any party or person described in this Article.
10.2 Except as otherwise set forth in this Agreement, the Commissioning Authority
and the Owner shall not be liable to each other for any delays in the performance
of their respective obligations and responsibilities under this Agreement which
arise from causes beyond their control and without their fault or negligence,
including but not limited to, any of the following events or occurrences: fire,
flood, earthquake, epidemic, atmospheric condition of unusual severity, war, state
or local government acting in its sovereign capacity, and strikes. Owner shall not
be liable to the Commissioning Authority for acts or failures to act by
Construction Program Manager, the Contractor or the Owner's consultants.
ARTICLE 11
TERMINATION OF AGREEMENT
13
11.1 If (1), the Owner abandons the Project or the Project is stopped for more than six
(6) months due to actions taken by the Owner, or under an order of any court or
other public authority having jurisdietion, or as a result of an aet of government,
such as a declaration of a national emergency making materials unavailable
through no act or fault of thc Commissioning Authority or its employces, or (2),
the Owner has failed to substantially perform in accordance with the provisions
of this Agreement due to no fault of the Commissioning Authority and such
non-performance continues without cure for a period of thirty (30) days after the
Owner receives from the Commissioning Authority a written notice of such
nonperformance (including a detailed explanation of the actions of the Owner
required for cure), the Commissioning Authority may, upon fifteen (15) day's
additional written notice to the Owner, terminate this Agreement, without
prejudice to any right or remedy otherwise available to the Owner, and recover
from the Owncr paymcnt for all services performed to the date of the noticc
terminating this Agreement.
11.2 Upon the appointment of a receiver for the CA>mmissioning Authority, or if the
Commissioning Authority makes a general assignment for the benefit of creditors,
the Owner may terminate this Agreement, without prejudice to any right 01'
remedy otherwise available to the Owner, upon giving three (3) working days
written noticc to the Commissioning Authority. If an order for relief is cntered
unde,' the bankruptcy code with respect to the Commissioning Authority, the
Owner may terminate this Agreement by giving three working days written
notice to the Commissioning Authority unless the Commissioning Authority or
the trustee: (1), promptly cures all breaches; (2), provides adequate assurances or
future performance; (3), compensates the Owner for actual pecuniary loss
resulting from such breaches; and (4), assumes the obligations of the
Commissioning Authority within the statutory time limits.
11.3 If the Commissioning Authority persistently or repeatedly refuses or fails, except
in cases for which extension of timc is providcd, to supply sufficicnt propcrly
skilled staff or proper materials, or persistently disregards laws, ordinances,
rules, regulations or orders of any public authority jurisdiction, or otherwise
substantially violates or breaches any term or provision of this Agreement, then
the Owner may, without prejudice to any right or remedy otherwise available to
the Owner, and after giving the Commissioning Authority written notice,
terminate this Agreement.
]].4 Upon termination of this Agreement by the Owner under paragraph 11.2 or 11.3
it shall be entitled to furnish or have furnished the Services to be performed
hereunder by the C.ommissioning Authority by whatever method the Owner may
deem expedient. Also, in such cases, the Commissioning Authority shall not be
cntitled to reccivc any furthcr payment until completion of thc Work; and thc
total compensation to the Commissioning Authority under this Agreement shall
be the amount which is equitable under the circumstances. If the Owner and the
Commissioning Authority are unable to agree on the amount to be paid under the
foregoing scntencc, thc Owncr shall fix an amount, if any, which it deems
14
appropriate in consideration of all of the circumstances surrounding such
termination, and shall make payment accordingly.
11.5 The Owner may, upon thirty day's written notice to the Commissioning Authority
terminate this Agreement, in whole or in part, at any time for the convenience of
the Owner, without prejudice to any right or remedy otherwise available to the
Owner. Upon receipt of such notice, the Commissioning Authority shall
immediately discontinue all services affected unless such notice directs otherwise.
In the event of a termination for convenience of the Owner, the Commissioning
Authority's sole and exclusive right and remedy is to be paid for all work
performed and to receive equitable adjustment for all work performed through
the date of termination. The Commissioning Authority shall not be entitled to be
paid any amount as profit for unperformed services or consideration for the
termination of convenience by the Owner.
11.6 Should the Owner terminate the Commissioning Authority as provided for under
this Article, the Owner will acquire such documents, including the ownership and
use of all plans, specifications, documents and materials relating to the Project
prepared by or in the possession of the Commissioning Authority. The
Commissioning Authority will turn over to the Owner in a timely manner and in
good unaltered condition all such documents.
11.7 The payment of any sums by the Owner under this Article 11 shall not constitute
a waiver of any claims for damages by the Owner for any breach of the Agreement
by the Commissioning Authority.
ARTICLE 12
DISPUTE RESOLUTION
12.1 If a dispute arises out of or related to this Agreement, or its alleged breach, and if
that dispute has not been settled through direct discussions within a reasonable
period, the parties to this Agreement agree to first endeavor tv settle the dispute
in an amicable manner by submitting the dispute to a mutually acceptable
mediator under the Construction Industry Mediation Rulcs, bcfore having
recourse to a judicial forum. Each party further agrees that it will endeavor to
follow a similar dispute resolution procedure to resolve any disputes against any
third parties (including the Contractor and Construction Program Manager)
which aJ'ise out of or relat.e to work.
12.2 Should mediation of disputes prove unsuccessful, the parties to this Agreement
agree that the matter(s) in question will be decided in the Superior Court of
Richmond County, Georgia. By signing this Agreement, the Commissioning
Authority waives any right to contest the venue in the Superior Court of
Richmond County, Georgia.
15
ARTICLE 13
SUCCESSORS/ASSIGNMENT
13.1 This Agreement shall inure to the benefit of and be binding on the heirs,
successors, assigns, trustees and personal representatives of the Owner, as well
as the permitted assigns and trustees of the Commissioning ^uth01-it.y.
13.2 The Commissioning Authority shall not assign, sublet or transfer its interest in
this Agreement without the written consent of the other, except that the
('JOmmissioning Authority may assign accounts receivable to a commercial bank
or financial institution for securing loans, without prior approval of the Owner.
ARTICLE 14
OWNERSHIP OF DOCUMENTS/CONFIDENTIAL INFORMATION
14.1 Plans and Specifications are instruments of service and shall remain the property
of the Commissioning Authority except as provided for under paragraph 11.6
whether the Project for which they are made is built or not. Said documents and
Commissioning concept are not to be used by the Commissioning^uthority on
other projects. Then Commissioning Authority agrees to transmit a digital copy
of all plans, specifications and drawings, to Owner prior to project closeout. Said
electronic files and documents are not to be used by the Owner on projects at
separate facilities, without a written agreement with the Commissioning
Authority, except as provided for under paragraph 11.6.
14.2 In order for the Commissioning Authority to fulfill this Agreement effectively, it
may be necessary or desirable for the Owner to disclose to the Commissioning
Authority confidential and proprietary information and trade secrets pertaining
to the Owner's past, present and future activities. The Commissioning Authority
hereby agrees to treat any and all information gained by it as a result of the
Services performed hereunder as strictly confidential. The Commissioning
Authority further agrees that it will not disclose to anyone outside of the
authorized Project team (i) O\\'Iler's trade secrets during the period of this
Agreement 01' thereafter or (ii) Owner's confidential and proprietary information
during the period of this Agreement and thereafter for a period of 2 years.
ARTICLE 15
ADDITIONAL PROVISIONS
15.1 This Agreement and its Exhibits and Attachments represent. t.he entire and
int.egrated agreement between the Owner and the Commissioning Authority and
supersedes all prior negotiations, representations or agreements, either written
or oral. This Agreement may be amended only by written instrument signed by
both Owner and Commissioning Authority.
15.2 Unless othelwise specified, this Agreement shall be governed by the law of the
State of Georgia, U.S.A.
16
15.3 If anyone or more of the provisions contained in this Agreement, for any reason,
are held to be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality or unenforceabiJity shall not affect any other provisions thereof and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision
had never been contained herein.
15.4 Except where specifically stated otherwise, all periods of time stated in terms of
days shall be considered periods calculated in calendar days.
15.5 The headings or captions within this Agreement shall be deemed set forth in the
manner presented for thc purposcs of rcfcrcnce only and shall not control or
otherwise affect the information set forth therein or interpretation theI'eof.
15.6 For the purpose of this Agreement unless the context clearly indicates otherwise,
the singular includes the plural, and the plural includes the singular.
15.7 This Agreement may be executed in any number of counterparts, each of which
shall bc decmed an original, and the counterparts shall constitute onc and thc
same instI'ument, which shall be sufficient evidence by anyone thereof.
COMMISSIONING AUTHORITY
This Agreement executed the day and year first written above.
OWNER
Augusta, Georgia, a political
Subdivision of the State of Georgia
Acting by and through the
Richmond County Commission
By: cQ~~ fL----.
Deke S. Copenhaveb
MayO!'
....:
\\ "> \'e
U ID
""\
'~\~\,
Total Systems Commissioning, Inc.
Ifl~;jlJ/ (!( LJ-
Vice President
17
Al
EXHIBIT A
CONSTRUCTION BUDGET
DATE: June 20, 2008
OWhTER: Augusta, Georgia
PROJECT: New Augusta Judicial Center.
1. This budget is based on construction dates as follows:
GrOlmdbreaking: January, 2009
Substantial Completion: December, 2010
Final Completion: February, 2011
2. Escalation rates shall be determined by the R. S. Means Cost Index for
Augusta (or nearest available city). Based on recent Index history in the area, a
projected rate of escalation of five percent (5%) has been allowed for in the figures
below based on the dates shown in Item 1. In the event of delay and/or publication of
above referenced Index Data contrary to projected rate of escalation, all of the following
figures are automatically adjusted by the foregoing Cost Index.
3. (GMP) Budget for Construction (CM at Risk Project Delivery):
$ 48,500,000
EXHIBIT B
BUILDING PROGRAM
'.
Document entitled "Project Verification Phase Report" dated November 8, 2007, is adopted
herein by reference.
C-l on
EXHIBIT C
SCOPE OF WORK & SCHEDULE OF PAYMENTS
Task # Description Fee
1 Review lVE DD documents (plans and narratives) and submit written $2,520.00
comments to Owner about proposed drawings, descriptive narratives,
proposed systems and materials.
2 Attend Desi{!ll Develonment Review Conference with Owner and Architect. $2,100.00
3 Produce Preliminary Commissioning Plan and submit to Owner for review. $3,360.00
4 Review AlE's preliminary and final GMP Documents, including developed $2,520.00
architectural and engineering drawings, outline specifications and project
schedule. Provide Owner written l'eview comments.
5 Cooperate, coordinate and collaborate with AlE in resolving Design Intent $2,100.00
Issues.
6 Submit approved Preliminary Commissioning Plan and specifications to $3,360.00
Owner, for inclusion with GMP documents.
7 Assist Owner and CM@Risk firm with bidding, including attendance at Pre- $2,520.00
bid Meetine:s, nrenaration of addenda, et.c.
8 Review AlE's final construction plans and specifications, providing written $2,520.00
review comments.
9 Produce Final Commissioning Plan and specifications and submit to Owner $3,360.00
for final review.
10 Assist Owner by performing Construction Phase Commissioning services, $14,336.00
including periodic site visits to observe and document construction progress,
pertinent Submittal Reviews, interpretation of commissioning-related
Contract Documents and administration of commissioning activities.
11 Field verification of installed equipment in static condition, including but not $6,944.00
limited to air handlers, pumps, boilers, chillers, ductwork, dampers, controls,
valves, actuators, piping drain downs, power connections, water treatment
systems, power systems, lightning protection systems surge protection,
switchgear, transformers, panelboards, grounding, fire alarms, smoke
evacuation, life safety and security systems.
12 Functional verification of eauinment start-ups under controlled conditions. $5,376.00
13 Performance verification of interrelated systems runmng simultaneously, $28.320.00
including but not limited to all components listed under Item 14, ill
accordance with the annroved commissioning Plan.
14 Cooperate, coordinate and collabomte with the ContI'actor and AlE ill $3,840.00
resolving operational and installation comlitions that do not meet the Design
intent.
15 Documentation of Design Intent, operational parameters and operations and $5,760.00
maintenance (O&M) staff trainin!!
16 Review of 0 & M Manuals $1,920.00
17 Preparation of an 0 & M staffing and preventative maintenance plan. $4,800.00
18 Preparation of a Commissioning Final Report, including documentation of $3,840.00
items noted in RFP, Scope of Work
TOTAL $99,496.00
."
Schedule of Commissioned Systems and Equipment
Receipt Pre-functional Functional Sampling
System and Equipment Insoection Perfomlance Rate
lUechanical Svstems
Air Handling Units (AHU) X X X 100%
Air-cooled chiller X X X 100%
Building Automation System , X 100%
CHS/R piping system X 10%
Ductwork system X 10%
Exhaust Fans X X X 100%
Pump-constant soeed X X X 100%
Pump-variable speed X X X 100%
Rooftop Ventilators X X X 100%
V A V Terminal Unit X X X 20%
Water filtration system X X X 100%
Plumbinl! Svstems
Automatic trao orimer X X 100%
Backt10w prevcnter X X 100%
Elevator sumo oumo X X 100%
Hot water circulating pump X X 100%
Plumbing fixtures , X X 50%
Watcr heater X X 100%
Electrical Svstems
Automatic transfer switch X X X 100%
Daylight dimming controls X X 20%
Distribution oanel X X 50%
Emergency lighting X X 50%
Generator X X X 100%
Grounding system X X 100%
Lighting control system X X 100%
Lighting protection system X X 100%
Ivlotor control center X X I 100%
Occupancy sensors X X 20%
Panel X X 100%
Photocell control X X 100%
Recel1tacles X ! X 10%
C-2 or 3
Receipt Pre-functional Functional Sampling
System and Equipment Inspection Performance Rate
Surge protection system X X 100%
Switchgear X X 100%
Transformer-480 primary X X X 100%
Securi4' Svstems X X 20%
Fire Prote(1iolllLife Sttfety
Svstems
Firm alarm system X X 50%
Wet sprinkler system X X 20%
C-3 of 3