HomeMy WebLinkAboutPhinizy Road Detention Center Lighting Protection System
Augusta Richmond GA
DOCUMENT NAME: 'P)+, N i "G. 'I \R OA ',) b E;) l::",-nO(\) Q E >.11" Cot- L~ ttTi'd
P~Jec.T/ON S 'I <:;:;;115 lY'\
DOCUMENT TYPE: CDt0TR'ACT
YEAR: ;;2.00 ~
BOX NUMBER: } r
Fll.E NUMBER: 1 Lo 'l ~ \
NUMBER OF PAGES:
30
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AUGUSTA-RICHMOND COUNTY COMMISSION
Bon YOlll'(;
j\'la)llr
STAFF A'ITORNEYS
VANESS..\ FLOURNOY
SPAnncrs /-I EYWAIW
LEE BEARD
TO~J.\IY BOYLES
UL~IEll IJI<IDG~:S
A:-:DY CIlEEK
BOBBY G, IIM';KERSO,~
\\'ILLlA~1 \I. KUIII.KE. ,Ill,
\\'~I, "WILLIE" H. l\l,\Ys, III
STEPIIE;>.' L SHEPARD
I\I,\RIO;>.' WILLIA~IS
.JAi\'IESB. WALL
CITY A HORNEY
AUGUSTA LA W DEPARTMENT
R/ellAIW L. COLCLOUGH
Mayor Pro Tem
GEORG E R. KOLI3
Administrator
April 25,2003
Pkase Reply to:
1',0, Box 2125
AlIgllsta, CiA 30903
(706) 821-2488
Fax (706)722-5984
.i \\'all@co,richmond,ga,lIs
Mr. Rick Acree
Facilities f\/laintenance
Hatcher 500 Building
S' "Ol.,rdFI
, Ulte.) ,.) oar
501 Greene Street
Augusta, GA 30901
RE: Phinizy Road Detention Center Lightning
Protection System
Dear Rick:
Enclosed please find 8 original Contracts with B & B Electrical Contractors, Inc,
for the above referenced Project.
By carbon copy of this letter, I am forwarding an original of the Contract, together
with the original Payment and Performance Bonds to Lena Bonner for the City's permanent
records,
With best personal regards, I am
Yours very tru] y,
/\) ,
(---tJ~ (--, > L)
James B, 'IVaI I
JB W/sjp
Enc losures
cc: Ms, Lena Bonner
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THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA
B,ond No, 527815P
AGC DOCUMENT NO. 473
DESIGN-BUILD PAYMENT BONDS
(Where the Surety is NOT Liable for Design Services)
The Owner, AUGUSTA-RICHMOND COUNTY, (the "Owner") and the Design-Builder B & B ELECTRICAL CONTRACTORS, INC., (the
"Design Builder") have entered into a Contract (the "Contract") dated
March 20th, 2003 for
Phinizv Road Liehtnlne Protection System. RFP #02-180. Phinizv Road Detention, AUl!usta. Geol1!ia
(the "Project"), The Contract is incorporated by reference into this Bond,
By virtue of this Payment Bond (the "Bond"), the Design-Builder as Principal and DEVELOPERS SURETY AND INDEMNITY COMPANY as
Surety ("Surety"), are bound to the Owner as Obligee in the maximum amount of
ONE HUNDRED SIXTY EIGHT THOUSAND SEVEN HUNDRED NINETY EIGHT AND 00/100 Dollars ($ 168,798.00) (the "Bond
Sum"), The Design-Builder and Surety hereby bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally,
as provided herein,
I, GENERAL CONDITIONS It is the condition of this Bond that if the Design-Builder promptly makes payment of all sums for all labor,
materials, and equipment furnished for use in the performance of the construction work required by the Contract, the Surety's obligations
pursuant to this Bond are null and void, Otherwise the Surety's obligations shall remain in full force and effect. The Surety waives any
requirement to be notified of alterations or extensions of time made by the Owner in the Contract.
2, SURETY OBLIGATION Every Claimant who has not been paid in full before the expiration of a period of ninety (90) days after such
Claimant provided or performed the last of the work or labor, or furnished the last of the materials for whiCh said claim is made, may have a
right of action on this Bond, The Surety's obligation to the Claimant(s) shall not exceed the Bond Sum.
3, LIMITATION OF ACTION No suit or action shall be commenced on this Bond by any Claimant:
a Unless Claimant, other than one having a direct contract with the Design-Builder, shall have given written notice to the Design-Builder,
the Owner and the Surety within ninety (90) days after the Claimant provided or performed the last of the work or labor, or furnished the
last of the materials for which the claim is made, stating with substantial accuracy the amount claimed and the name of the party to
whom the materials were furnished, or for whom the work or labor was provided or performed, Such notice shall be served by
registered or certified mail, postage prepaid, in an envelope addressed to the Owner, Design-Builder and Surety at any place within the
United States where an office is regularly maintained for the transaction of business, or served in any manner in which legal process may
be served in the state in which the Project is located,
b. After the expiration of one (I) year from the date on which the Claimant last performed labor or furnished materials or equipment on the
Project. If this provision is prohibited by law, the minimum period of limitation available to sureties in the jurisdiction shall be applicable,
c, Other than in any court of competent jurisdiction in the location in which the Project is located.
4, CLAIMANT A Claimant is defined as an individual or entity having a direct contract with the Design-Builder or having a contract with a
subcontractor having a direct contract with the Design-Builder to furnish labor, materials, or equipment for use in the performance of the
Contract.
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AGC DOCUMENT NO. 473 * DESIGN-BUILD PAYMENT BOND (Where the Surety is NOT Liable for Design Services)
1999, The Associated General Contractors of America
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THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA
B.ond No. 527815P
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AGC DOCUMENT NO. 471
DESIGN-BUILD PERFORMANCE BOND
(Where the Surety is NOT Liable for Design Services)
The Owner, AUGUST A-RICHMOND COUNTY, (the "Owner") and the Design-Builder B & B ELECTRICAL CONTRACTORS, INC., (the
"Design-Builder") have entered into a Contract (the "Contract") dated,
March 20th, 2003 for Phinizv Road Lil!htnlnl! Protection System, RFP #02-180, Phinizv Road Detention, AUl!usta, Georl!ia
(the "Project"). The Contract is incorporated by reference into this Perfonnance Bond (the "Bond"),
By virtue of this Bond, the Design-Builder as Principal and DEVELOPERS SURETY AND INDEMNITY COMPANY as Surety ("Surety"), are
bound to the Owner as Obligee in the maximum amount of
ONE HUNDRED SIXTY EIGHT THOUSAND SEVEN HUNDRED NINETY EIGHT AND 00/100 Dollars ($ 168,798.00) (the "Bond
Sum"), The Design-Builder and Surety hereby bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally,
as provided herein,
I, GENERAL CONDITIONS It is the condition of this Bond that if the Design-Builder perfonns the construction work called for pursuant to
the Contract, the Surety's obligations under this Bond are null and void, Otherwise the Surety's obligations shall remain in full force and
effect. The Surety waives any requirement to be notified of alterations or extensions of time made by the Owner in the Contract. The Owner
may not invoke the provisions of this Bond unless the Owner has perfonned its obligations pursuant to the Contract. Upon making demand
on this Bond, the Owner shall make the Contract Balance (the total amount payable by the Owner to the Design-Builder pursuant to the
Contract less amounts properly paid by the Owner to the Design-Builder) available to the Surety for completion of the construction work,
2, SURETY OBLIGATIONS If the Design-Builder is in default pursuant to the Contract and the Owner has declared the Design-Builder in
default, the Surety promptly may remedy the default or shall:
a. Complete the construction work, with the consent of the Owner, through the Design-Builder or otherwise;
b, Arrange for the completion of the construction work by a design-builder acceptable to the Owner and secured by perfonnance and
payment bonds equivalent to those for the Contract issued by a qualified surety, The Surety shall make available as the construction
work progresses sufficient funds to pay the cost of completion of the construction work less the Contract Balance up to the Bond Sum or
c. Waive its right to complete the construction work and reimburse the Owner the amount of its reasonable costs, not to exceed the Bond
Sum, to complete the construction work less the Contract Balance.
3, NO LIABILITY FOR DESIGN Pursuant to Article 2 of the Bond, the Surety shall be liable for all construction costs of the Work, up to the
Bond Sum, but shall not be liable for any costs or damages arising from any design services provided pursuant to the Contract.
4, DISPUTE RESOLUTION All disputes pursuant to this Bond shall be instituted in any court of competent jurisdiction in the location in
which the Project is located and shall be commenced within two years after default of the Design-Builder or Substantial Completion of the
Work, whichever occurs first. If this provision is prohibited by law, the minimum period of limitation available to sureties in the jurisdiction
shall be applicable,
This Bond is entered into as of Aoril 16th, 2003,
SURETY~DEVE[;OPERS SURETY AND INDE
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PrinU'Nai'tl€P-hiilip'it Sondra '-,. ·
PriniJi!fe~-:Atiomev.:Jn-Fact .-. ,'~~ _"~J9./
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AGC DOCUMENT NO. 471 * DESIGN-BUILD PERFORMANCE BOND (Where the Surety is NOT Liable for Design S~[vicCf\r ~ 1 ?, ~ '...0 i
1999, The Associated General Contractors of America ~ '," ~".....-,~~"",,_i'- J!f
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POWER OF ATTORNEY FOR
DEVELOPERS SURETY AND INDEMNITY COMPANY
INDEMNITY COMPANY OF CALIFORNIA
PO BOX 19725,IRVINE, CA 92623. (949) 263-3300
KNOW ALL MEN BY THESE PRESENTS, that except as expressly limited, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY
COMPANY OF CALIFORNIA, do each, hereby make, constitute and appoint:
*"'*Gregory E. Nash, Phillip H, Condra, Janice S, Scott, jointly or severally***
as their true and lawful Attorney(s)-in-Fact, to make, execute, deliver and acknowledge, for and on behalf of said corporations, as sureties, bonds, undertakings
and contracts of suretyship giving and granting unto said Attorney(s)-in-Fact full power and authority to do and to perform every act necessary, requisite or
proper to be done in connection therewith as each of said corporations could do, but reserving to each of said corporations full power of substitution and
'revocation, and all of the acts of said Attorney(s)-in-Fact, pursuant to these presents, are hereby ratified and confirmed,
This Power of Attorney is granted and signed by authority of the following resolutions adopted by the respective Boards of Directors of DEVELOPERS
SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, effective as of November 1,2000:
RESOLVED, that the Chairman of the Board, the President and any Vice President of the corporation be, and that each of them hereby is,
authorized to execute Powers of Attorney, qualifYing the attorney(s) named in the Powers of Attorney to execute, on behalf of the corporations, bonds,
undertakings and contracts of suretyship; and that the Secretary or any Assistant Secretary of the corporations be, and each of them hereby is, authorized to
attest the execution of any such Power of Attorney; and
RESOLVED, FURTHER, that any Power of Attorney or certificate bearing such signatures will be valid and binding upon the corporations with
respect to any bond, undertaking or contract of suretyship to which it is attached,
IN WITNESS WHEREOF, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA have caused these
presents to be signed by their respective Executive Vice President and attested by their respective Secretary on January 29, 2003,
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David H, Rhodes, Executive Vice President
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By J~/ H /a4
Walt " Cr ell, Secret
STATE OF CALIFORNIA
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COUNTY OF ORANGE
On January 29, 2003, before me, Antonio Alvarado, personally appeared David H, Rhodes and Walter A Crowell, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacities, and that by their signatures on the instrument the entity unon hehalf of which the nersons acted, executed the
instrument.
Si
I. ~ON~"'YAAADO 1
Q .' COMM, # 1300303 <;
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:: ", ORANGE COUNTY .....
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CERTIFICATE
The undersigned, as Chief Operating Officer of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF
CALIFORNIA, docs hereby certify that the foregoing Power of Attorney remains in full force and has not been revoked, and furthermore, that the provisions
of the resolutions of the respective Boards of Directors of said corporations set forth in the Power of Attorney, are in force as of the date of this Certificate,
This Certificate is executed in the City oflrvine, California, the ~ day of A pr i 1
2003
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By <~j '<d.
David G, Lane, ChiefOperatinfi 0 lcer
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THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA
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INHGRITY
AGe DOCUMENT NO. 415
STANDARD FORM OF DESIGN-BUILD
AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER
(Where the Basis of Payment is a Lump Sum Based on an
Owner's Program Including Schematic Design Documents)
This standard form agreement was developed with the advice and cooperation of the AGC Private Industry Advisory Coun-
cil, a number of Fortune 500 owners' design and construction managers who have been meeting with AGC contractors to dis-
cuss issues of mutual concern. AGC gratefully acknowledges the contributions of these owners' staff who participated in this
effort to produce a basic agreement for construction.
TABLE OF ARTICLES
1, AGREEMENT
2, GENERAL PROVISIONS
3, DESIGN-BUILDER'S RESPONSIBILITIES
4, OWNER'S RESPONSIBILITIES
5, SUBCONTRACTS
6. CONTRACT TIME
7. CONTRACT PRICE
8. CHANGES IN THE WORK
9. PAYMENT
10, INDEMNITY, INSURANCE, BONDS, AND WAIVER OF SUBROGATION
11. SUSPENSION AND TERMINATION OF THE AGREEMENT AND OWNER'S
RIGHT TO PERFORM DESIGN-BUILDER'S RESPONSIBILITIES
12. DISPUTE RESOLUTION
13, MISCELLANEOUS PROVISIONS
14, EXISTING CONTRACT DOCUMENTS
This Agreement has important legal and insurance consequences, Consultation with an attorney and insurance consultant is encouraged
with respect to its completion or modification,
AGC DOCUMENT NO, 415 . STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of Payment is a Lump Sum Based on an Owner's PiOgram Including Schematic Design Documents)
@)999, The Associated General Contractors of America
i
AGC DOCUMENT NO. 415
STANDARD FORM OF DESIGN-BUILD AGREEMENT AND
GENERAL CONDITIONS BETWEEN OWNER AND DESIGN-BUILDER
(Where the Basis of Payment is a Lump Sum Based onan
Owner's Program Including Schematic Design Documents)
ARTICLE 1
AGREEMENT
This Agreement is made this
20th
day of
March
.
in the year
2003
, by and between the
.
.
OWNER
(Name and Address)
Augusta, Georgia, a political sub-division of the state of Georgia
and the
DESIGN-BUILDER
(Name and Address)
B&B Electrical Contractors, Inc.
2280 Walden Drive
Augusta, GA 30904
.
for services in connection with the following
PROJECT
(Name, location and brief description)
.
Phinizy Road Lightning Protection System
RFP # 02-180
Phinizy Road Detention Center
Augusta, Georgia
Notice to the parties shall be given at the above addresses.
2
AGC DOCUMENT NO. 415. STANDARD FORM OF DESIGN.BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN.BUILDER (Where the Basis of Payment is a Lump Sum Based on an Owner's prqgram Including Schematic Design Documents)
9 1999, The Associated General Contractors of America
,
A~TICLE 2.
GENERAL PROVISIONS
2,1 TEAM RELATIONSHIP The Owner and the
Design-Builder agree to proceed with the Project on the
basis of 'trust, good faith and fair dealing, The Design-Builder
agrees to procure the architectural and engineering services
set forth below, and to furnish construction and administra-
tion of the Work,
2.2 ARCHITECT/ENGINEER Architectural and engi-
neering services shall be procured from licensed, inde-
pendent design professionals retained by the Design-Builder
or furnished by licensed employees of the Design-Builder,
or as permitted by the law of the state where the Project is
located. The standard of care for architectural and engi-
neering services performed under this Agreement shall be
the care and skill ordinarily used by members of the archi-
tectural and engineering professions practicing under simi-
lar conditions at the same time and locality, The person or
entity providing architectural and engineering services shall
be referred to as the Architect! Engineer, If the Architect!
Engineer is an independent design professional, the archi-
tectural and engineering services shall be procured and pay-
ments shall be made pursuant to a separate agreement
between the Design-Builder and the Architect!Engineer, The
Architect/Engineer for the Project is E 1 e c tr i c a 1
Desiqn Consultants, Inc. '.
2.3 EXTENT OF AGREEMENT This Agreement is
solely forthe benefit of the parties, represents the entire and
integrated agreement between the parties, and supersedes
all prior negotiations, representations or agreements, either
written or oral. The Owner and the Design-Builder agree to
look solely to each other with respect to the performance of
the Agreement. The Agreement and each and every provi-
sion is for the exclusive benefit of the Owner and the Design-
Builder and not for the benefit of any third party nor any third
party beneficiary, except to the extent expressly provided in
the Agreement.
2.4 DEFINITIONS
.1 The Contract Documents consist of:
a, Change Orders and written
amendments to this Agreement including
exhibits and appendices, signed by both
the Owner and Design-Builder;
b. this Agreement, except for the
existing Contract Documents set forth in
item e below;
c, the most current Documents
approved by the Owner pursuant to Para-
graph 3,1 ;
d. the information provided by the
Owner pursuantto'Clause.4,1,2,1;
e, the Contract Documents in exis-
tence at the time of this Agreement which
are set forth in Article 14;
f, the Owner's Program provided
pursuant to Subparagraph 4.1.1,
In case of any inconsistency, conflict or ambiguity among the
Contract Documents, the Documents shall govern in the
order in which they are listed above,
.2 The term day shall mean calendar day
unless otherwise specifically defined,
,3 Defective Work is any portion of the Work
not in conformance with the Contract Documents as
more fully described in Paragraph 3.8,
.4 Final Completion occurs on the date when
the Design-Builder's obligations under this Agree-
ment are complete and accepted by the Owner and
final payment becomes due and payable,
.5 A Material Supplier is a party or entity
retained by the Design Builder to provide material
and equipment for the Work,
.6 Others means other contractors and all
persons at the Worksite who are not employed by
Design-Builder, its Subcontractors or Material
Suppliers,
.7 The Owner is the person or entity identified
as such in this Agreement and includes the Owner's
Representative.
.8 The Owner's Program is a description of
the Owner's objectives, budgetary and time criteria,
space requirements and relationships, flexibility and
expandability requirements, special equipment and
systems, and site requirements, together with
Schematic Design Documents which shall include
drawings, outline specifications and other concep-
tual documents illustrating the Project's basic ele-
ments, scale and their relationship to the Worksite,
.9 The Project, as identified in Article 1, is the
building, facility and/or other improvements for
which the Design-Builder is to perlorm the Work
under this Agreement. It may also include improve-
ments to be undertaken by the Owner or Others,
.10 A Subcontractor is a party or entity retained
by the Design-Builder as an independent contrac-
tor to provide the on site labor, materials, equipment
3
AGC DOCUM ENT NO. 415 . STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of Payment is a Lump Sum Based on an Owner's Program Including Schematic Design Documents)
@ 1999, The Associated General Contractors of America
. .
. and/or services necessary to complete a specific
portion of the Work, The term Subcontractor does
not include the ArchitecVEngineer or any separate
contractor employed by the Owner or any separate
contractor's subcontractors,
.11 Substantial Completion of the Work, or of a
designated portion, occurs on the date when con-
struction is sufficiently complete in accordance with
the Contract Documents so that the Owner can
occupy or utilize the Project, or a designated por-
tion, for the use for which it is intended, in accor-
dance with Paragraph 9.4. The issuance of a
Certificate of Occupancy is not a prerequisite for
Substantial Completion if the Certificate of Occu-
pancy cannot be obtained due to factors beyond the
Design-Builder's control. This date shall be con-
firmed by a certificate of Substantial Completion
signed by the Owner and Design-Builder. The cer-
tificate shall state the respective responsibilities of
the Owner and Design-Builder for security, mainte-
nance, heat, utilities, damage to the Work, and
insurance, The certificate shall also list the items to
be completed or corrected, and establish the time
for their completion and correction within the time-
frame, if any, established in Subparagraph 6.2.1 for
the Date of Final Completion,
.12 A Subsubcontractor is a party or entity who
has an agreement with a Subcontractor to perform
any portion of the Subcontractor's work,
.13 The Work is the Design Services procured
in accordance with Paragraph 3.1 , the Construction
Services provided in accordance with Paragraph
3.2, Additional Services in accordance with Para-
graph 3,10, and other services which are necessary
to complete the Project in accordance with and rea-
sonably inferable from the Contract Documents,
.14 Worksite means the geographical area at
the location mentioned in Article 1 where the Work
is to be performed,
ARTICLE 3
DESIGN-BUILDER'S RESPONSIBILITIES
The Design-Builder shall be responsible for procuring or fur-
nishing the design and for the construction of the Work con-
sistent with the Owner's Program. The Design-Builder shall
exercise reasonable skill and judgment in the performance
of the Work.
3.1 DESIGN SERVICES Pursuant to a mutually agree-
able schedule, the Design-Builder shall submit for the
Owner's written approval, as applici?ble, De.sign Develop-
ment Documents and/or Construction Documents, based on
the Contract Documents in existence at the time of the exe-
cution of this Agreement or any further development of Con-
tract Documents that have been approved in writing by the
Owner,
3.1.1 If required, the Design Development Documents
shall further define the Project including drawings and outline
specifications fixing and describing the Project size and
character as to site utilization, and other appropriate ele-
ments incorporating the structural, architectural, mechanical
and electrical systems, When the Design-Builder submits
the Design Development Documents, the Design-Builder
shall identify in writing all material changes and deviations
that have taken place from the Contract Documents in exis-
tence at the time of the execution of this Agreement. Any
changes in the Work contained in the Design Development
Documents approved by the Owner shall result in a Change
Order pursuant to Article 8 adjusting the Contract Price
and/or the Date of Substantial Comple~ion and/or the Date
of Final Completion,
3.1.2 The Construction Documents shall set forth in detail
the requirements for construction of the Work, and shall be
based upon codes, laws or regulations enacted at the time
of their preparation. When the Design-Builder submits the
Construction Documents, the Design-Builder shall identify in
writing all material changes and deviations that have taken
place from the Design Development Documents or the Con-
tract Documents in existence at the time of the execution of
this Agreement. Any changes in the Work contained in the
Construction Documents approved by the Owner shall result
in a Change Order pursuant to Article 8 adjusting the Con-
tract Price and/or the Date of Substantial Completion and/or
the Date of Final Completion, Construction shall be in accor-
dance with the approved Construction Documents. One set
of these documents shall be furnished to the Owner prior to
commencement of construction.
3.1.3 OWNERSHIP OF DOCUMENTS Upon the making
of payment pursuant to Paragraph 9,5, the Owner shall
receive ownership of the property rights. except for copy-
rights, of all documents, drawings, specifications, electronic
data and information prepared, provided or procured by the
Design-Builder, its Architect/Engineer, Subcontractors and
consultants and distributed to the Owner for this Project.
("Design-Build Documents")
,1 If this Agreement is terminated pursuant to
Paragraph 11.2, the Owner shall receive ownership
of the property rights, except for copyrights, of the
Design-Build Documents upon payment for all Work
performed in accordance with this Agreement, at
which time the Owner shall have the right to use,
reproduce and make derivative works from the
Design-Build Documents to complete the Work,
4
AGC DOCUMENT NO. 415. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of Payment is a Lump Sum Based on an Owner's Program Including Schematic Design Documents)
@ 1999, The Associated General Contractors of America
.2' If this Agreement is terminated pursuant to
Paragraph 11,3, tile Owner shall receive ownership
of the property rights, except for copyrights, of the
Design-Build Documents, upon payment of all sums
provided in Paragraph 11,3, at which time the
Owner shall have the right to use, reproduce and
make derivative works from the Design-Build Doc-
uments to complete the Work,
.3 The Owner may use, reproduce and make
derivative works from the Design-Build Documents
for subsequent renovation and remodeling of the
Work, but shall not use, reproduce and make deriv-
ative works from the Design-Build Documents for
other Projects without the written authorization of
the Design-Builder, who shall not unreasonably
withhold consent.
,4 The Owner's use of the Design-Build Doc-
uments without the Design-Builder's involvement or
on other projects is at the Owner's sole risk, except
for the Design-Builder's indemnification obligation
pursuant to Paragraph 3,6, and the Owner shall
defend, indemnify and hold harmless the Design-
Builder, its Architect/Engineer, Subcontractors and
consultants, and the agents, officers, directors and
employees of each of them from and against any
and all claims, damages, losses, costs and
expenses, including but not limited to attorney's
fees, costs and expenses incurred in connection
with any dispute resolution process, arising out of
or resulting from the Owner's use of the Design-
Build Documents,
.5 The Design-Builder shall obtain from its
Architect/Engineer, Subcontractors and consultants
property rights and rights of use that correspond to
the rights given by the Design-Builder to the Owner
in this Agreement.
3.2 CONSTRUCTION SERVICES
3.2.1 Construction will commence upon the issuance by
the Owner of a written notice to proceed,
3.2.2 In order to complete the Work, the Design-Builder
shall provide all necessary construction supervision, inspec-
tion, construction equipment, construction labor, materials,
tools and subcontracted items,
3.2.3 The Design-Builder shall give all notices and com-
ply with all laws and ordinances legally enacted at the date
of execution of the Agreement which govern the proper per-
formance 01 the Work,
3.2.4 The Design-Builder shall maintain the Schedule of
Work. This schedule shall indicate the dates-for the start and
completion of the various stages of the construction, includ-
ing the dates when information and approvals are required
from the Owner, It shall be revised as required by the con-
ditions of the Work,
3.2.5 The Design-Builder shall obtain and the Owner shall
pay, in addition to the Contract Price, for the building permits
necessary for the construction of the Project.
3.2,6 The Design-Builder shall keep such full and detailed
accounts as may be necessary for proper financial man-
agement under this Agreement. The Owner shall be afforded
access to all the Design-Builder's records, books, corre-
spondence, instructions, drawings, receipts, vouchers,
memoranda and similar data relating to Change Order work
performed on the basis of actual cost. The Design-Builder
shall preserve all such records for a period of three years
after the final payment or longer where required by law.
The Design-Builder shall provide periodic written reports to
the Owner on the progress of the Work in such detail as ;s
required by the Owner and as agreed to by the Owner and
Design-Builder,
3.2,8 The Design-Builder shall regularly remove debris
and waste materials at the Worksite resulting from the Work,
Prior to discontinuing Work in an area, the Design-Builder
shall clean the area and remove all rubbish and its con-
struction equipment, tools, machinery, waste and surplus
materials, The Design-Builder shall minimize and confine
dust and debris resulting from construction activities, At the
completion of the Work, the Design-Builder shall remove
from the Worksite all construction equipment, tools, surplus
materials, waste materials and debris,
3,2.9 The Design-Builder shall prepare and submit to the
Owner
~~~XIJ{X~KOOKotXOO>>~
updated electronic data
(cross-out one of the above) .
in general documenting how the various elements of the
Work including changes were actually constructed or
installed, or as defined by the parties by attachment to this
Agreement.
3.3 SCHEDULE OF THE WORK The Design-Builder
shall prepare and submit a Schedule of Work for the
Owner's acceptance and written approval as to milestone
dates, This schedule shall indicate the dates for the start and
completion of the various stages of the Work, including the
dates when information and approvals are required from the
Owner. The Schedule shall be revised as required by the
conditions of the Work,
5
AGC DOCUMENT NO, 415 . STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BEWVEEN OWNER AND
DESIGN-BUILDER (Where the Basis of Payment is a Lump Sum Based on an Owner's ~ogram Including Schematic Design Documents)
@ 1999, The Associated General Contractors of America
~ 3.4 SAFETY OF PERSONS AND PROPERTY
3.4.1 SAFETY PRECAUTIONS AND PROGRAMS The
Design-Builder shall have overall responsibility for safety
precautions and programs in the periormance of the Work,
While the provisions of this Paragraph establish the respon-
sibility for safety between the Owner and the Design-Builder,
they do not relieve Subcontractors of their responsibility for
the safety of persons or property in the performance of their
work, nor for compliance with the provisions of applicable
laws and regulations,
3.4.2 The Design-Builder shall seek to avoid injury, loss
or damage to persons or property by taking reasonable
steps to protect:
.1 its employees and other persons at the
Worksite;
.2 materials, supplies and equipment stored
at the Worksite for use in periormance of the Work;
and
.3 the Project and all property/ocated at the
Worksite and adjacent to work areas, whether or not
said property or structures are part of the Project or
involved in the Work,
3.4.3 DESIGN-BUILDER'S SAFETY REPRESENTA-
TIVE The Design-Builder shall designate an individual at the
Worksite in the employ of the Design-Builder who shall act
as the Desi gn-Builder's designated safety representative
with a duty to prevent accidents, Unless otherwise identified
by the Design-Builder in writing to the Owner, the designated
safety representative shall be the Design-Builder's project
superintendent. The Design-Builder will report immediately
in writing all accidents and injuries occurring at the Worksite
to the Owner, When the Design-Builder is required to file an
accident report with a public authority, the Design-Builder
shall furnish a copy of the report to the Owner.
3.4.4 The Design-Builder shall provide the Owner with
copies of all notices required of the Design-Builder by law or
regulation, The Design-Builder's safety program shall com-
ply with the requirements of governmental and quasi-gov-
ernmental authorities having jurisdiction over the Work,
3.4.5 Damage or loss not insured under property insur-
ance which may arise from the performance of the Work, to
the extent of the negligence attributed to such acts or omis-
sions of the Design-Builder, or anyone for whose acts the
Design-Builder may be liable, shall be promptly remedied by
the Design-Builder, Damage or loss attributable to the acts
or omissions of the Owner or Others and not to the Design-
Builder shall be promptly remedied by the Owner,
3.4.6 If the Owner dee]Tls any.part of the, Work or Work-
site unsafe, the Owner, without assuming responsibility for
the Design-Builder's safety program, may require the
Design-Builder to stop performance of the Work or take cor-
rective measures satisfactory to the Owner, or both, If the
Design-Builder does not adopt corrective measures, the
Owner may perform them and reduce the amount of the
Contract Price by the costs of the corrective measures, The
Design-Builder agrees to make no claim for damages, for an
adjustment in the Contract Price and/or the Date of Sub-
stantial Completion and/or the Date of Final Completion
based on the Design-Builder's compliance with the Owner's
reasonable request.
3.5 HAZARDOUS MATERIAL
3.5.1 A Hazardous Material is any substance or material
identified now or in the future as hazardous under any fed-
eral, state or local law or regulation, or any other substance
or material which may be considered hazardous or other-
wise subject to statutory or regulatory requirements govern-
ing handling, disposal and/or c1l?an-up, The Design-Builder
shall not be obligated to commence or continue Work until all
known or suspected Hazardous Material discovered at the
Project site has been removed, rendered or determined to
be harmless by the Owner as certified by an independent
testing laboratory and approved by the appropriate govern-
ment agency,
3.5.2 If after the commencement of the Work, known or
suspected Hazardous Material is discovered at the Project,
the Design-Builder shall be entitled to immediately stop Work
in the affected area, The Design-Builder shall report the con-
dition to the Owner and, if required, the government agency
with jurisdiction,
3.5.3 The Design-Builder shall not be required to periorm
any Work relating to or in the area of Hazardous Material
without written mutual agreement.
3.5.4 The Owner shall be responsible for retaining an
independent testing laboratory to determine the nature of the
material encountered and whether it is a Hazardous Mater-
ial requiring corrective measures and/or remedial action.
Such measures shall be the sole responsibility of the Owner,
and shall be performed in a manner minimizing any adverse
effect upon the Work of the Design-Builder, The Design-
Builder shall resume Work in the area affected by any Haz-
ardous Material only upon written agreement between the
parties after the Hazardous Material has been removed or
rendered harmless and only after approval, if necessary, of
the governmental agency or agencies with jurisdiction,
3.5.5 If the Design-Builder incurs additional costs and/or
is delayed due to the presence or remediation of Hazardous
Material, the Design-Builder shall be entitled to an equitable
6
AGC DOCUMENT NO, 415. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND~ENERAl CONDITIONS BETWEEN OWNER AND
DESIGN-BUilDER (Where the Basis of Payment is a lump Sum Based on an Owner's Program Including Schematic Design Documents)
@ 1999, The Associated General Contractors of America
adjustmenf in the 'ContrE!ct Pric~ and/or the date of Sub-
~ stantial Completion,
3.5.6 Provided the Design-Builder, its Subcontractors and
Sub-subcontractors, and the agents, officers, directors and
employees of each of them, have not, acting under their own
authority, knowingly entered upon any portion of the Work
containing Hazardous Materials, and to the extent not
caused by the negligent acts or omissions of the Design-
Builder, its Subcontractors and Sub-subcontractors, and the
agents, officers, directors and employees of each of them,
the Owner shall defend, indemnify and hold harmless the
Design-Builder, its Subcontractors and Sub-subcontractors,
and the agents. officers. directors and employees of each of
them, from and against any and all direct claims,' damages,
losses, costs and expenses, including but not limited to attor-
ney's fees, costs and expenses incurred in connection with
any dis pute resolution process, arising out of or relating to
the perlormance of the Work in any area affected by Haz-
ardous Material. To the fullest extent permitted by law, such
indemnification shall apply regardless of the fault. negli-
gence, breach of warranty or contract, or strict liability of the
Owner.
3.5,7 Material Safety Data (MSD) sheets as required by
Jaw and pertaining to materials or substances used or con-
sumed in the periormance of the Work, whether obtained by
the Design-Builder, Subcontractors, the Owner or Others,
shall be maintained at the Project by the Design-Builder and
made available to the Owner and Subcontractors,
3.5.8 During the Design-Builder's periormance of the
Work, the Design-Builder shall be responsible for the proper
handlin 9 of all materials brought to the Worksite by the
Design-Builder. Upon the issuance of the Certificate of Sub-
stantial Completion, the Owner shall be responsible under
this Paragraph for materials and substances brought to the
site by the Design-Builder if such materials or substances
are required by the Contract Documents,
3.5.9 The terms of this Paragraph 3,5 shall survive the
completion of the Work under this Agreement and/or any ter-
mination of this Agreement.
3.6 ROYALTIES, PATENTS AND COPYRIGHTS The
Design-Builder shall pay all royalties and license fees which
may be due on the inclusion of any patented or copyrighted
materials, methods or systems selected by the Design-
Builder and incorporated in the Work. The Design-Builder
shall defend, indemnify and hold the Owner harmless from
all suits or claims for infringement of any patent rights or
copyrights arising out of such selection. The Owner agrees
to defend, indemnify and hold the Design-Builder harmless
from all suits or claims of infringement of any patent rights or
copyrights arising out of any patented or copyrighted mate-
rials, methods or systems specified by the Owner,
3.7 TAX EXEMPTION If in accordance with the
Owner's direction the Design-Builder claims an exemption
for taxes, the Owner shall defend, indemnify and hold the
Design-Builder harmless from all liability, penalty, interest.
fine, tax assessment, attorneys fees or other expense or
cost incurred by the Design-Builder as a result of any action
taken by the Design-Builder in accordance with the Owner's
direction.
3.8 WARRANTIES AND COMPLETION
3.8,1 The Design-Builder warrants that all materials and
equipment furnished under this Agreement will be new
unless otherwise specified, of good quality, in conformance
with the Contract Documents, and free from defective work-
manship and materials. Warranties shall commence on the
date of Substantial Completion of the Work or of a desig-
nated portion, The Design-Builder agrees to correct all con-
struction periormed under this Agreement which proves to
be defective in workmanship or materials within a period of
one year from the date of Substantial Completion as set forth
in Paragraph 6,2 or for such longer periods of time as may
be set forth with respect to specific warranties required by
the Contract Documents,
3.8.2 To the extent products, equipment, systems or
materials incorporated in the Work are specified and pur-
chased by the Owner, they shall be covered exclusively by
the warranty of the manufacturer. There are no warranties
which extend beyond the description on the face thereof, To
the extent products, equipment, systems or materials incor-
porated in the Work are specified by the Owner but pur-
chased by the Design-Builder and are inconsistent with
selection criteria that otherwise would have been followed
by the Design-Builder, the Design-Builder shall assist the
Owner in pursuing warranty claims. ALL OTHER WAR-
RANTIES EXPRESSED OR IMPLIED INCLUDING THE
WARRANTY OF MERCHANTABILITY AND THE WAR-
RANTY OF FITNESS FOR A PARTICULAR PURPOSE
ARE EXPRESSLY DISCLAIMED.
3.8.3 The Design-Builder shall secure required certifi-
cates of inspection, testing or approval and deliver them to
the Owner,
3,8,4 The Design-Builder shall collect all written war-
ranties and equipment manuals and deliver them to the
Owner in a format directed by the Owner,
3.8.5 With the assistance of the Owner's maintenance
personnel, the Design-Builder shall direct the checkout of
utilities and start up operations, and adjusting and balanc-
ing of systems and equipment for readiness,
3.9 CONFIDENTIALITY The Design-Builder shall treat
as confidential and not disclose to third persons, except Sub-
7
AGe DOCUMENT NO. 415. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of Payment is a Lump Sum Based on an Owner's;Program Including Schematic Design Documents)
@ 1999, The Associated General Contractors of America
, contraGtors, Sub-subcontractors arrd the ArchitecVEngineer
as is necessary for the performance of the Work, or use for
its own benefit any of the Owner's developments, confiden-
tial information, know-how, discoveries, production methods
and the like that may be disclosed to the Design-Builder or
which the Design-Builder may acquire in connection with the
Work, The Owner shall treat as confidential information all
of the Design-Builder's estimating systems and historical
and parameter cost data that may be disclosed to the Owner
in connection with the performance of this Agreement.
.10 Interior design and r,elated s.ervices includ-
ing procurement 'and placement of furniture, fur.:
nishings, artwork and decorations,
3.10 ADDITIONAL SERVICES The Design-Builder shall
provide or procure the following Additional Services upon the
request of the Owner, A written agreement between the
Owner and Design-Builder shall define the extent of such
Additional Services, Such Additional Services shall be con-
sidered a Change in the Work, unless they are specifically
included in Article 14,
.11 Making revisions to design documents after
they have been approved by the Owner when revi-
sions are due to causes beyond the control of the
Design-Builder, Causes beyond the control of the
Design-Builder do not include acts or omissions on
the part of Subcontractors, Sub-subcontractors or
the ArchitecVEngineer,
.1 Development of the Owner's Program,
establishing the Project budget, investigating
sources of financing, general business planning and
other information and documentation as may be
required to establish the feasibility of the Project.
.12 Design, coordination, management, expe-
diting and other services supporting the procure-
ment of materials to be obtained, or work to be
performed, by the Owner, including but not limited to
telephone systems, computer wiring networks,
sound systems, alarms, security systems and other
specialty systems which are not a part of this
Agreement.
.2 Consultations, negotiations, and docu-
mentation supporting the procurement of Project
financing,
.13 Estimates, proposals. appraisals, consulta-
tions, negotiations and services in connection with
the repair or replacement of an insured loss, pro-
vided such repair or replacement did not result from
the negligence of the Design-Builder,
.3 Surveys, site evaluations, legal descrip-
tions and aerial photographs,
.14 The premium portion of overtime work
ordered by the Owner including productivity impact
costs, other than that required by the Design-Builder
to maintain the Schedule of Work,
.4 Appraisals of existing equipment, existing
properties, new equipment and developed proper-
ties.
.15 Out-of-town travel by the ArchitecVEngi-
neer in connection with the Work, except between
the Architect/Engineer's office, Design-Builder's
office, Owner's office and the Project site,
.5 Soils, subsurtace and environmental stud-
ies, reports and investigations required for submis-
sion to governmental authorities or others having
jurisdiction over the Project.
.16 Obtaining service contractors and training
maintenance personnel; assisting and consulting in
the use of systems and equipment after the initial
start up,
.6 Consultations and representations before
govemmental authorities or others having jurisdic-
tion over the Project other than normal assistance in
securing building permits,
.17 Services for tenant or rental spaces not a
part of this Agreement.
.7 Investigation or making measured draw-
ings of existing conditions or the verification of
Owner-provided drawings and information,
.18 Services requested by the Owner or
required by the Work which are not specified in the
Contract Documents and which are not normally
part of generally accepted design and construction
practice.
.8 Artistic renderings, models and mockups of
the Project or any part of the Project or the Work,
.19 Serving or preparing to serve as an expert
witness in connection with any proceeding, legal or
otherwise, regarding the Project.
.9 Inventories of existing furniture, fixtures,
furnishings and equipment which might be under
consideration for incorporation into the Work,
.20 Document reproduction exceeding the lim-
its provided for in this Agreement.
8
AGC DOCUMENT NO, 415 . STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of Payment is a Lump Sum Based on an Owner's Program Including Schematic Design Documents)
@ 1999, The Associated General Contractors of America
3.11 DESIGN~BUILDER'S REPRESENTATIVE The
Design-Builder shall designate'a person who shall be the
Design-Builder's authorized representative, The Design-
Builder's Representative is James c. Ball
ARTICLE 4
OWNER'S RESPONSIBILITIES
4,1 INFORMATION AND SERVICES PROVIDED BY
OWNER
4.1,1 The Owner shall provide full information in a timely
manner regarding requirements for the Project, including the
Owner's Program and other relevant information.
4.1.2 The Owner shall provide:
.1 all available information describing the
physical characteristics of the site, including sur-
veys, site evaluations, legal descriptions, existing
conditions, subsurface and environmental studies,
reports and investigations;
.2 inspection and testing services during con-
struction as required by law or as mutually agreed;
and
.3 unless otherwise provided in the Contract
Documents, necessary approvals, site plan review,
rezoning, easements and assessments, fees and
charges required for the construction, use, occu-
pancy or renovation of permanent structures,
including legal and other required services,
4.1.3 The Owner shall provide reasonable evidence sat-
isfactory to the Design-Builder, prior to commencing the
Work and during the progress of the Work, that sufficient
funds are available and committed for the entire cost of the
Project, including an allowance for changes in the Work as
may be approved in the course of the Work, Unless such
reasonable evidence is provided, the Design-Builder shall
not be required to commence or continue the Work, The
Design-Builder may stop Work after seven (7) days' written
notice to the Owner if such evidence is not presented within
a reasonable time, The failure of the Design-Builder to insist
upon the providing of this evidence at anyone time shall not
be a waiver of the Owner's obligation to make payments pur-
suant to this Agreement, nor shall it be a waiver of the
Design-Builder's right to request or insist that such evidence
be provided at a later date,
4,1.4 The Design-Builder shall be entitled to rely on the
completeness and accl:Jracy of-the information and services
required by this Paragraph 4,1,
.
4,2
RESPONSIBILITIES DURING DESIGN
4,2.1 The Owner shall review and approve further devel-
opment of the drawings and specifications as set forth in
Article 3.
4,3 RESPONSIBILITIES DURING CONSTRUCTION
4.3.1 The Owner shall review the Schedule of Work as
set forth in Paragraph 3,3, timely approve milestone dates
set forth and timely respond to its obligations,
4.3,2 If the Owner becomes aware of any error, omission
or failure to meet the requirements of the Contract Docu-
ments or any fault or defect in the Work, the Owner shall give
prompt written notice to the Design-Builder.
4.3.3 The Owner shall communicate with the Design-
Builder's Subcontractors, suppliers and Architect/Engineer
only through or in the presence of the Design-Builder. The
Owner shall have no contractual obligations to Subcontrac-
tors, suppliers, or the Architect/Engineer,
4,3,4 The Owner shall provide insurance for the Project
as provided in Article 10.
4,4 OWNER'S REPRESENTATIVE The Owner's rep-
resentative is Richard M. Acree
.
The representative:
.1 shall be fully acquainted with the Project;
.2 agrees to furnish the information and ser-
vices required of the Owner pursuant to Paragraph
4,1 so as not to delay the Design-Builder's Work;
and
.3 shall have authority to bind the Owner in all
matters requiring the Owner's approval, authoriza-
tion or written notice. If the Owner changes its rep-
resentative or the representative's authority as listed
above, the Owner shall notify the Design-Builder in
writing in advance.
9
AGe DOCUMENT NO, 415' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of Payment is a Lump Sum Based on an Owner's,-Program Including Schematic Design Documents)
@ 1999, The Associated General Contractors of America
ARTICLE 5
SUBCONTRACTS
Work not performed by the Design-Builder with its own
forces shall be performed by Subcontractors or the Archi-
tect/Engineer,
5.1 RETAINING SUBCONTRACTORS The Design-
Builder shall not retain any Subcontractor to whom the
Owner has a reasonable and timely objection, provided that
the Owner agrees to increase the Contract Price for any
additional costs incurred by the Design-Builder as a result of
such objection. The Owner may propose subcontractors to
be considered by the Design-Builder. The Design-Builder
shall not be required to retain any subcontractor to whom
the Design-Builder has a reasonable objection,
5.2 MANAGEMENT OF SUBCONTRACTORS The
Design-Builder shall be responsible for the management of
the Subcontractors in the performance of their work,
5.3 ASSIGNMENT OF SUBCONTRACT AGREE-
MENTS The Design-Builder shall provide for assignment of
subcontract agreements in the event that the Owner termi-
nates this Agreement for cause as provided in Paragraph
11.2. Following such termination, the Owner shall notify in
writing those subcontractors whose assignments will be
accepted, subject to the rights of sureties,
5,4 BINDING OF SUBCONTRACTORS AND MATE-
RIAL SUPPLIERS The Design-Bui/der agrees to bind every
Subcontractor and Material Supplier (and require every Sub-
contractor to so bind its Sub-subcontractors and Material
Suppliers) to all the provisions of this Agreement and the
Contract Documents as they apply to the Subcontractor's
and Material Supplier's portions of the Work,
5(SXXX~~~~~~)Q){~~KS{
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ARTICLE 6
CONTRACT TIME
6.1 DATE OF COMMENCEMENT The Date of Com-
mencement is the effective date of this Agreement as first
written in Article 1 unless otherwise set forth below: (Insert
here any special provisions concerning Notices to Proceed
and the Date of Commencement.) .
See attached notice to proceed.
The Work shall proceed in general accordance with the
Schedule of Work as such schedule may be amended from
time to time, subject, however, to other provisions of this
Agreement.
6.2 SUBSTANTIAL COMPLETION/FINAL
COMPLETION
6.2.1 Substantial Completion of the Work shall be
achieved in 1 50 days from the Date of .
Commencement. Unless otherwise specified, the Work shall
be finally complete within 30 days after.
the date of Substantial Completion, subject to adjustments
as provided for in the Contract Documents,
6.2.2 Time limits stated in the Contract Documents are of
the essence,
6,2.3 The Date of Final Completion of the Work isXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
or within Thirty
( 30 ) days after the Date of Substantial .
Completion, subject to adjustments as provided for in the
Contract Documents,
6.2.4 Unless instructed by the Owner in writing, the
Design-Builder shall not knowingly commence the Work
before the effective date of insurance that is required to be
provided by the Design-Builder or the Owner,
6.3 DELAYS IN THE WORK
6.3.1 If causes beyond the Design-Builder's control delay
the commencement or progress of the Work, then the Con-
tract Price and/or the date of Substantial Completion shall
be modified by Change Order as appropriate, Such causes
shall include but not be limited to: changes ordered in the
Work, acts or omissions of the Owner or separate contrac-
tors employed by the Owner, the Owner preventing the
Design-Builder from performing the Work pending dispute
10
AGC DOCUMENT NO. 415. STANDARD FORM OF DESIGN-BUilD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of Payment is a lump Sum Based on an Owner's Program Including Schematic Design Documents)
@ 1999, The Associated General Contractors of America
resolu1iori, Hazardous ,Materia.ls, differing site conditions,
Causes beyond the control of the Design-Builder do not
include acts or omissions on the part of the Design-Builder,
Subcontractors, Sub-subcontractors, Material Suppliers or
the Architect/Engineer,
6.3.2 To the extent a delay in the progress of the Work is
caused by adverse weather conditions not reasonably
anticipated, fire, unusual transportation delays, general/abor
disputes impacting the Project but not specifically related to
the Worksite, governmental agencies, or unavoidable acci-
dents or circumstances, the Design-Builder shall only be
entitled to its actual costs without fee and an extension of
the Date of Substantial Completion and/or the Date of Final
Completion,
6.3.3 In the event delays to the project are encountered
for any reason, the parties agree to undertake reasonable
steps to mitigate the effect of such delays,
ARTICLE 7
CONTRACT PRICE
The Contract Price is $1 68, 798 . 00 , .
subject to adjustment in accordance with the provisions of
Article 8,
ARTICLE 8
CHANGES IN THE WORK
Changes in the Work which are within the general scope of
this Agreement may be accomplished without invalidating
this Agreement by Change Order, Work Change Directive, or
a minor change in the Work, subject to the limitations stated
in the Contract Documents,
8.1 CHANGE ORDERS
8.1.1 The Design-Builder may request and/or the Owner,
without invalidating this Agreement, may order changes in
the Work within the general scope of the Contract Docu-
ments consisting of adjustment to the Contract Price and/or
the Date of Substantial Completion and/or the Date of Final
Completion, All such changes in the Work shall be author-
ized by applicable Change Order, and shall be performed
under the applicable conditions of the Contract Documents,
Each adjustment in the Contract Price resulting from a
Change Order shall clearly separate the amount attributable
to Design Services.
8,1.2 The Owner and the Design-Builder shall negotiate
in good faith an apprepriate adjUstment to Contract Price
and/or the Date of Substantial Completion and/or the Date
of Final Completion and shall conclude these negotiations
as expeditiously as possible, Acceptance of the Change
Order and any adjustment in the Contract Price and/or the
Date of Substantial Completion and/or the Date of Final
Completion shall not be unreasonably withheld,
8,2 WORK CHANGE DIRECTIVES
8.2.1 The Owner may issue a written Work Change
Directive directing a change in the Work prior to reaching
agreement with the Design-Builder on the adjustment, if any,
in the Contract Price and/or the Date of Substantial Com-
pletion and/or the Date of Final Completion, and if appropri-
ate, the compensation for Design Services,
8,2.2 The Owner and the Design-Builder shall negotiate
expeditiously and in good faith for appropriate adjustments,
as applicable, to the Contract Price and/or the Date of Sub-
stantial Completion and/or the Date of Final Completion, and
if appropriate the compensation for Design Services, arising
out of Work Change Directives, As the changed work is com-
pleted, the Design Builder shall submit its costs for such
work with its Application for Payment beginning with the next
Application for Payment within thirty (30) days of the
issuance of the Work Change Directive, Pending final deter-
mination of cost to the Owner, amounts not in dispute may
be included in Applications for Payment and shall be paid by
Owner,
8.2.3 If the Owner and the Design-Builder agree upon the
adjustments in the Contract Price and/or the Date of Sub-
stantial Completion and/or the Date of Final Completion, and
if appropriate the compensation for Design Services, for a
change in the Work directed by a Work Change Directive,
such agreement shall be the subject of an appropriate
Change Order, The Change Order shall include all out-
standing Change Directives issued since the last Change
Order,
8,3 MINOR CHANGES IN THE WORK
8.3.1 Design-Builder may make minor changes in the
design and construction of the Project consistent with the
intent of the Contract Documents which do not involve an
adjustment in the Contract Price and/or the Date of Sub-
stantial Completion and/or the Date of Final Completion; and
do not materially and adversely affect the design of the Pro-
ject, the quality of any of the materials or equipment speci-
fied in the Contract Documents, the performance of any
materials, equipment or systems specified in the Contract
Documents, or the quality of workmanship required by the
Contract Documents,
11
AGC DOCUMENT NO. 415 . STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of Payment is a Lump Sum Based on an Owner's Program Including Schematic Design Documents)
@ 1999, The Associated General Contractors of America
8.3,2 Design-Builder shall promptly inform the Owner in
. writing, of any such changes and snail record such changes
on the Design-Build Documents maintained by the Design-
Builder,
8,4 DETERMINATION OF COST
8.4.1 An increase or decrease in the Contract Price
resulting from a change in the Work shall be determined by
one or more of the following methods:
.1 unit prices set forth in this Agreement or as
subsequently agreed;
.2 a mutually accepted, itemized lump sum; or
.3 if an increase or decrease cannot be
agreed to as set forth in Clause 8.4,1.1 or 8.4.1,2
and the Owner issues a written order for the Design-
Builder to proceed with the change, the adjustment
in the Contract Price shall be determined by the rea-
sonable expense and savings of the pertormance
of the Work resulting from the change, If there is a
net increase in the Contract Price, a reasonable
adjustment shall be made in the Design-Builder's
overhead and profit. In the case of a net decrease
in cost, the amount of decrease in the Contract
Price will not include a reduction in overhead and
profit. The Design-Builder shall maintain a docu-
mented, itemized accounting evidencing the
expenses and savings,
8.4.2 If unit prices are indicated in the Contract Docu-
ments or are subsequently agreed to by the parties, but the
character or quantity of such unit items as originally con-
templated is so different in a proposed Change Order that
the original unit prices will cause substantial inequity to the
Owner or the Design-Builder, such unit prices shall be equi-
tablyadjusted,
8.4.3 If the Owner and the Design-Builder disagree as to
whether work required by the Owner is within the scope of
the Work, the Design-Builder shall furnish the Owner with an
estimate of the costs to pertorm the disputed work in accor-
dance with the Owner's interpretations, If the Owner issues
a written order for the Design-Builder to proceed, the Design-
Builder shall perform the disputed work and the Owner shall
pay the Design-Builder fifty percent (50%) of its estimated
cost to perform the work. In such event, both parties reserve
their rights as to whether the work was within the scope of
the Work, The Owner's payment does not prejudice its right
to be reimbursed should it be determined that the disputed
work was within the scope of Work, The Design-Builder's
receipt of payment for the disputed work does not prejudice
its right to receive full payment for the disputed work should
it be determined that the disputed work is not within the
scope of the Work.
8,5 UNKNOWN CONDITIONS If in the performance of
the Work the Design-Builder finds latent, cOr'lcealed or sub-
surface physical conditions which materially differ from the
conditions the Design-Builder reasonably anticipated, or if
physical conditions are materially different from those nor-
mally encountered and generally recognized as inherent in
the kind of work provided for in this Agreement, then the
Contract Price and/or the date of Substantial Completion
shall be equitably adjusted by Change Order within a rea-
sonable time after the conditions are first observed, Design-
Builder shall provide Owner with written notice within the
time period set forth in Paragraph 8,6,
8.6 CLAIMS FOR ADDITIONAL COST OR TIME For
any claim for an increase in the Contract Price and/or an
extension in the Date of Substantial Completion and/or the
Date of Final Completion, the Design-Builder shall give the
Owner written notice of the claim within twenty-one (21) days
after the occurrence giving rise to the claim or within twenty-
one (21) days after the Design-Builder first recognizes the
condition giving rise to the claim, whichever is later, Except
in an emergency, notice shall be given before proceeding
with the Work. Claims for design and estimating costs
incurred in connection with possible changes requested by
the Owner, but which do not proceed, shall be made within
twenty-one (21) days after the decision is made not to pro-
ceed, Any change in Contract Price and/or the Date of Sub-
stantial Completion and/or the Date of Final Completion
resulting from such claim shall be authorized by Change
Order,
8.7 EMERGENCIES In any emergency affecting the
safety of persons and/or property, the Design-Builder shall
act, at its discretion, to prevent threatened damage, injury or
loss, Any change in the Contract Price and/or extension of
the Date of Substantial Completion and/or the Date of Final
Completion on account of emergency work shall be deter-
mined as provided in this Article.
8.8 CHANGES IN LAW In the event any changes in
laws or regulations affecting the performance of the Work
are enacted after the date of this Agreement, the Contract
Price and the Date of Substantial Completion and/or the
Date of Final Completion, and if appropriate the compensa-
tion for Design Services, shall be equitably adjusted by
Change Order.
12
AGC DOCUMENT NO. 415 . STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of Payment is a Lump Sum Based on an Owner's Pr~ram Including Schematic Design Documents)
@ 1999, The Associated General Contractors of America
ARTICLE 9
PAYMENT
9.1 PROGRESS PAYMENTS
9.1.1 Prior to submitting the first application for payment,
the Design-Builder shall provide a Schedule of Values sat-
isfactory to the Owner, consisting of a breakdown of the Con-
tract Price, with a separate line item for Design Services,
9.1.2 On or before the 5 th .
day of each month after the Work has commenced, the
Design-Builder shall submit to the Owner an application for
payment in accordance with the Schedule of Values based
upon the Work completed and materials suitably stored on
the Worksite or at other locations approved by the Owner,
Approval of payment applications for such stored materials
shall be conditioned upon submission by the Design-Builder
of bills 01 sale and applicable insurance or such other pro-
cedures satisfactory to the Owner to establish the Owner's
title to such materials, or otherwise to protect the Owner's
interest including transportation to the site.
9.1.3 Within ten (10) days after receipt of each monthly
application for payment, the Owner shall give written notice
to the Design-Builder of the Owner's acceptance or rejec-
tion, in whole or in part, of such application for payment.
Within fifteen (15) days after accepting such Application, the
Owner shall pay directly to the Design-Builder the appropri-
ate amount for which application for payment is made, less
amounts previously paid by the Owner. If such application is
rejected in whole or in part, the Owner shall indicate the rea-
sons for its rejection, If the Owner and the Design-Builder
cannot agree on a revised amount then, within fifteen (15)
days after its initial rejection in part of such application, the
Owner shall pay directly to the Design-Builder the appropri-
ate amount for those items not rejected by the Owner for
which application for payment is made, less amounts previ-
ously paid by the Owner, Those items rejected by the Owner
shall be due and payable when the reasons for the rejection
have been removed,
9.1.4 If the Owner fails to pay the Design-Builder at the
time payment of any amount becomes due, then the Design-
Builder may, at any time thereafter, upon serving written
notice that the Work will be stopped within seven (7) days
after receipt of the notice by the Owner, and after such seven
(7) day period, stop the Work until payment of the amount
owing has been received.
9,1.6 The Design-Builder warrants and guarantees that
title 10 all Work, materials and eejUipmefl1 covered by an
application for payment, whether incorporated in the Project
or not, will pass to the Owner upon receipt of such payment
by1he Design-Builder free and clear of all liens, claims, secu-
rity interests or encumbrances, hereinafter referred to as
"liens,"
9.1,7 The Owner's progress payment, occupancy or use
of the Project, whether in whole or in part, shall not be
deemed an acceptance of any Work not conforming to the
requirements of the Contract Documents,
9.1.8 Upon Substantial Completion of the Work, the
Owner shall pay the Design-Builder the unpaid balance of
the Contract Price, less a sum equal to one hundred fifty per-
cent (150%) of the Design-Builder's estimated cost of com-
pleting any unfinished items as agreed to between the
Owner and Design-Builder as to extent and time for com-
pletion, The Owner thereafter shall pay the Design-Builder
monthly the amount retained for unfinished items as each
item is completed,
9.2 RETAINAGE From each progress payment made
prior to the time Substantial Completion of the Work has
been reached, the Owner shall retain Ten .
percent ( 1 0 %), if required, of the amount.
otherwise due after deduction of any amounts as provided in
Paragraph 9.3 of this Agreement. If the Owner chooses to
use this retainage provision:
.1 at the time the Work is fifty percent (50%)
complete and thereafter, the Owner may choose to
withhold no more retainage and pay the Design-
Builder the full amount of what is due on account of
subsequent progress payments;
.2 once each early finishing trade Subcon-
tractor has completed its work and that work has
been accepted by the Owner, the Owner may
release final retention on such work;
.3 in lieu of retainage, the Design-Builder may
furnish securities, acceptable to the Owner, to be
held by the Owner. The interest on such securities
shall accrue to the Design-Builder;
.4 the Owner may, in its sole discretion,
reduce the amount to be retained at any time,
9.3 ADJUSTMENT OF DESIGN-BUILDER'S APPLI-
. . ' ~CATION FOR PAYMENT The Owner may adjust or reject
graph 9,1.3, less any amount' suant to Para- an application for payment or nullify a previously approved
graph 9.20 ar Interest from the date payment is pplication for payment, in whole or in part, as may reason-
. . ',bly be necessary to protect the Owner from loss or dam-
age based upon the following, to the extent that the
Design-Builder is responsible under this Agreement:
13
AGe DOCUMENT NO. 415. STANDARD FORM OF DESIGN-BUilD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-SUI lDER (Where the Basis of Payment is a lump Sum Based on an Owner's ~rogram Including Schematic Design Documents)
@ 1999, The Associated General Contractors of America
.1 the' Design-Builder's repeated failure to
perform the Work as required by the Contract Doc-
uments;
.2 loss or damage arising out of or relating to
this Agreement and caused by the Design-Builder
to the Owner, or Others to whom the Owner may be
liable;
.3 the Design-Builder's failure to pay the
Architect/Engineer, Subcontractors for labor, mate-
rials, equipment or supplies properly furnished in
connection with the Work, provided that the Owner
is making payments to the Design-Builder i,n accor-
dance with the terms of this Agreement;
.4 Defective Work not corrected in a timely
fashion;
.5 reasonable evidence of delay in perform-
ance of the Work such that the Work will not be
completed by the Date of Substantial Completion
and/or the Date of Final Completion, and that the
unpaid balance of the Contract Price is not sufficient
to offset any direct damages that may be sustained
by the Owner as a result of the anticipated delay
caused by the Design-Builder; and
.6 reasonable evidence demonstrating that
the unpaid balance of the Contract Price is insuffi-
cient to fund the cost to complete the Work,
When the above reasons for disapproving or nullifying an
application for payment are removed, payment will be made
for the amounts previously withheld,
9.4 OWNER OCCUPANCY OR USE OF
COMPLETED OR PARTIALLY COMPLETED WORK
9.4.1 Portions of the Work that are completed or partially
completed may be used or occupied by the Owner when (a)
the portion of the Work is designated in a Certificate of Sub-
stantial Completion, (b) appropriate insurer(s) and/or
sureties consent to the occupancy or use, and (c) appropri-
ate public authorities authorize the occupancy or use. Such
partial occupancy or use shall constitute Substantial Com-
pletion of that portion of the Work. The Design-Builder shall
not unreasonably withhold consent to partial occupancy or
use, The Owner shall not unreasonably refuse to accept par-
tial occupancy or use, provided such partial occupancy or
use is of value to the Owner,
9,5 FINAL PAYMENT
9.5.1 Final payment, consisting of the unpaid balance of
the Contract Price, shall be due and payable when the Work
is fully completed, Before issuance of final payment, the
Owner may request satisfactory evidence that all payrolls,
materials bills and other indebtedness connected with the
Work have been paid or otherwise satisfied,
9,5.2 In making final payment the Owner waives all
claims except for:
.1 outstanding liens;
.2 improper workmanship or defective mate-
rials appearing within one year after the date of Sub-
stantial Completion;
.3 Work not in conformance with the Contract
Documents; and
.4 terms of any special warranties required by
the Contract Documents,
9.5.3 In accepting final payment, the Design-Builder
waives all claims except those previously made in writing
and which remain unsettled,
ARTICLE 10
INDEMNITY, INSURANCE, BONDS,
AND WAIVER OF SUBROGATION
10,1 INDEMNITY
10.1,1 To the fullest extent permitted by law, the Design-
Builder shall defend, indemnify and hold harmless the
Owner, Owner's officers, directors, members, consultants,
agents and employees from all claims for bodily injury and
property damage (other than to the Work itself and other
property required to be insured under Paragraph 10,5
owned by or in the custody of the owner), that may arise
from the performance of the Work, to the extent of the neg-
ligence attributed to such acts or omissions by the Design-
Builder, Subcontractors or anyone employed directly or
indirectly by any of them or by anyone for whose acts any of
them may be liable, The Design-Builder shall not be required
to defend, indemnify or hold harmless the Owner, the
Owner's officers, directors, members, consultants, agents
and employees for any acts, omissions or negligence of the
Owner, Owner's officers, directors, members, consultants,
employees, agents or separate contractors,
14
AGC DOCUMENT NO, 415. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis 01 Payment is a Lump Sum Based on an Owner's Pr&gram Including Schematic Design Documents)
@ 1999, The Associated General Contractors 01 America
10.1.2 To the full~st extent permitted by law, the Owner ^ff1~ 10.2.2 The Design-B4ilder's .commercial General and
shall defeRs, indcfAl'lify al,d I,old harmless the Design- ~J~j Automobile Liability Insurance as required by Subparagraph
Builder, its officers, directors or members, Subcontractors ~~i~1 0,2,1 shall be written for not less than the following limits of
anyone employed directly or indirectly by any of them or anf--'\\lVliability:
one for whose acts any of them may be liable from all claims
for bodily injury and property damage, other than property .1 Commercial General Liability Insurance
insured under Paragraph 10.5, that may arise from the per-
formance of work by Others, to the extent of the negligence a, Each Occurrence Limit
attributed to such acts or omissions by Others, $ 1, 000 , 000 . 00 .
10.2
DESIGN-BUiLDER'S LIABILITY INSURANCE
10.2.1 The Design-Builder shall obtain and maintain insur-
ance coverage for the following claims which may arise out
of the performance of this Agreement, whether resulting from
the Design-Builder's operations or from the operations of
any Subcontractor, anyone in the employ of any of them, or
by an individual or entity for whose acts they may be liable:
.1 Workers' compensation, disability benefit
and other employee benefit claims under acts appli-
cable to the Work;
,2 under applicable employers' liability law,
bodily injury, occupational sickness, disease or
death claims of the Design-Builder's employees;
,3 bodily injury, sickness, disease or death
claims for damages to persons not employed by the
Design-Builder;
,4 personal injury liability claims for damages
directly or indirectly related to the person's employ-
ment by the Design-Builder or for damages to any
other person;
.5 damage to or destruction of tangible prop-
erty, including resulting loss of use, claims for prop-
erty other than the work itself and other property
insured under Paragraph 10,5;
.6 bodily injury, death or property damage
claims resulting from motor vehicle liability in the
use, maintenance or ownership of any motor vehi-
cle; and
.7 contractual liability claims involving the
Design-Builder's obligations under Subparagraph
10.1,1,
b,
General Aggregate
$ 2,000,000.00
.
c, Products/Completed
Operations AQ..qre_qate
$ 2,000,VOo-.OO
.
d, Personal and Advertising
Injury Limit
$ 1,000,000.00
.
.2
Comprehensive Automobile Liability
Insurance
a,
Combined Single Limit Bodily
Injury and Property Damage
$ 1,000,000.00
Each Occurrence
.
b,
Bodily Injury
$ 1,000,000_00
Each Person
.
$ 1,000,000.00
Each Occurrence
.
c, Property Damage
$ 1,000,000 00
Each Occurrence
.
10.2,3 Commercial General Liability Insurance may be
arranged under a single policy for the full limits required or
by a combination of underlying policies and an Excess or
Umbrella Liability policy,
10.2.4 The policies shall contain a provision that coverage
will not be canceled or not renewed until at least thirty (30)
days' prior written notice has been given to the Owner. Cer-
tificates of insurance showing required coverage to be in
force shall be filed with the Owner prior to commencement
of the Work,
10.2.5 Products and Completed Operations insurance
shall be maintained for a minimum period of one
(1) ------------- year(s) after either ninety (90) .
days following the Date of Substantial Completion or final
payment, whichever is earlier,
15
AGe DOCUM ENT NO. 415 . STANDARD FORM OF DESIGN-BUILD AGREEMENT ANg GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of Payment is a Lump Sum Based on an Owner's Program Including Schematic Design Documents)
@ 1999, The Associated General Contractors of America
10.3. PROFESSIONAL. LIABILITY INSURANCE The
Design-Builder shall obtain, e:lK11I~~G!{Imr through the Archi-
tect/Engineer, professional liability insurance for claims aris-
ing from the negligent performance of professional services
under this Agreement, which shall be either:
Del\'l~~KOO~ec
Project Specific Professional Liability Insurance
~~~~~~ .
written for not less than $ 1 , 000 . 00 0 . 0 0 .
per claim and in the aggregate with a deductible not to
exceed $ 1, 0 0 0 , 0 00 0 0 . .
The Professional Liability Insurance shall include prior acts
coverage sufficient to cover all services rendered by the
Architect/Engineer and by its consultants, This coverage
shall be continued in effect for ? YPn r1'; .
year(s) after the Date of Substantial Completion.
10.4 OWNER'S LIABILITY INSURANCE The Owner
shall be responsible for obtaining and maintaining its own
liability insurance. Insurance for claims arising out of the per-
formance of this Agreement may be purchased and main-
tained at the Owner's discretion, The Owner shall provide
the Design-Builder with a certificate of insurance at the
request of the Design-Builder,
10.5 INSURANCE TO PROTECT PROJECT
10.5.1 The Owner shall obtain and maintain "All Risk"
Builder's Risk insurance in a form acceptable to the Design-
Builder upon the entire Project for the full cost of replace-
ment at the time of any loss. This insurance shall include as
named insureds the Owner, Design-Builder, Architect/Engi-
neer, Subcontractors and Sub-subcontractors, This insur-
ance shall include "all risk" insurance for physical loss or
damage including without duplication of coverage, at least:
theft, vandalism, malicious mischief, transit, materials stored
off site, collapse, falsework, temporary buildings, debris
removal, flood, earthquake, testing, and damage resulting
from defective design, workmanship or material. The Owner
shall increase limits of coverage, if necessary, to reflect esti-
mated replacement cost. The insurance policy shall be writ-
ten without a co-insurance clause. The Owner shall be solely
responsible for any deductible amounts,
10.5.2 If the Owner occupies or uses a portion of the Pro-
ject prior to its Substantial Completion, such occupancy or
use shall not commence prior to a time mutually agreed to
by the Owner and the Design-Builder. Permission for partial
occupancy from the insurance company shall be included
as standard in the property insurance policy, to ensure that
this insurance shall not be canceled or lapsed on account of
partial occupancy. Consent of the Design-Builder to such
early occupancy or use shall not be unreasonably withheld.
10.5,3 The Owner shall obtain and maintain boiler and
machinery insurance as necessa'ry, The' interests of the
Owner, Design-Builder, Architect/Engineer, Subcontractors
and Sub-subcontractors shall be protected under this
coverage,
10.5.4 The Owner will purchase and maintain insurance to
protect the Owner, Design-Builder, Architect/Engineer, Sub-
contractors and Sub-subcontractors against loss of use of
Owner's property due to those perils insured pursuant to
Paragraph 10,5, Such policy will provide coverage for expe-
diting expenses of materials, continuing overhead of the
Owner and the Design-Builder, Architect/Engineer, Subcon-
tractors and Sub-subcontractors, necessary labor expense
including overtime, loss of income by the Owner and other
determined exposures, Exposures of the Owner, Design-
Builder, Architect/Engineer, Subcontractors and Sub-sub-
contractors shall be determined by mutual agreement with
separate limits of coverage fixed for each item,
10.5.5 The Owner shall provide the Design-Builder with a
copy of all property insurance policies before an exposure
to loss may occur, Copies of any subsequent endorsements
shall be furnished to the Design-Builder, The Design-Builder
shall be given thirty (30) days notice of cancellation, non-
renewal, or any endorsements restricting or reducing
coverage, The Owner shall give written notice to the Design-
Builder before commencement of the Work if the Owner will
not be obtaining property insurance, In that case, the
Design-Builder may obtain insurance in order to protect its
interest in the Work, as well as the interest of the Archi-
tect/Engineer, Subcontractors and Sub-subcontractors in the
Work, The Contract Price shall be increased by the cost of
this insurance through Change Order. If the Design-Builder
is damaged by the failure of the Owner to purchase or main-
tain property insurance or to so notify the Design-Builder, the
Owner shall bear all reasonable costs incurred by the
Design-Builder arising from the damage.
10.5,6 The Owner shall have the right to self-insure against
the risks covered in Subparagraphs 10,5,1 and 10,5.4 upon
providing evidence satisfactory to the Design-Builder of the
ability to so self-insure,
10.6 PROPERTY INSURANCE LOSS ADJUSTMENT
10.6.1 Any insured loss shall be adjusted with the Owner
and the Design-Builder and made payable to the Owner and
Design-Builder as trustees for the insureds, as their interests
may appear, subject to any applicable mortgagee clause.
10,6,2 Upon the occurrence of an insured loss, monies
received will be deposited in a separate account and the
trustees shall make distribution in accordance with the
agreement of the parties in interest, or in the absence of
such agreement, in accordance with a dispute resolution
16
AGC DOCUMENT NO. 415' STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of Payment is a Lump Sum Based on an Owner's Program Including Schematic Design Documents)
@ 1999, The Associated General Contractors of America
awerd pursuant to Article .12, If tl:le trustees are unable to
agree between themselves on the settlement of the loss,
such dispute shall also be submitted for resolution pursuant
to Article 12,
10.7
WAIVER OF SUBROGATION
10.7.1 The Owner and Design-Builder waive all rights
against each other, the Architect/Engineer, and any of their
respective employees, agents, consultants, Subcontractors,
Material Suppliers and Sub-subcontractors, for damages
covered by the insurance provided pursuant to Paragraph
10.5 to the extent they are covered by that insurance, except
such rights as they may have to the proceeds of sych insur-
ance held by the Owner and Design-Builder as trustees, The
Design-Builder shall require similar waivers from the Archi-
tect/Engineer and all Subcontractors, and shall require each
of them to include similar waivers in their sub-subcontracts
and consulting agreements,
10.7.2 The Owner waives subrogation against the Design-
Builder, Architect/Engineer, Subcontractors, Material Sup-
pliers and Sub-subcontractors on all property and
consequential loss policies carried by the Owner on adja-
cent properties and under property and consequential loss
policies purchased for the Project after its completion,
10.7.3 The policies shall also be endorsed to state that the
carrier waives any right of Subrogation against the Design-
Builder, the Architect/Engineer, Subcontractors, Material
Suppliers, or Sub-subcontractors,
10.8 MUTUAL WAIVER OF CONSEQUENTIAL DAM-
AGES The Owner and the Design-Builder agree to waive
all claims against the other for all consequential damages
that may arise out of or relate to this Agreement. The Owner
agrees to waive damages including but not limited to the
Owner's loss of use of the Property, all rental expenses
incurred, loss of services of employees, or loss of reputa-
tion, The Design-Builder agrees to waive damages in~lud-
ing but not limited to the loss of business, loss of financing,
principal office overhead and profits, loss of profits not
related to this Project, or loss of reputation, This Paragraph
shall not be construed to preclude contractual provisions for
liquidated damages when such provisions relate to direct
damages only. The provisions of this Paragraph shall govern
the termination of this Agreement and shall survive such
termination,
10.9 BONDING
10.9.1 Performance and Payment Bonds
are
~
(Cross-out one of the above)
required of the Design-Builder, Such bonds shall be issued
by a surety licensed in the state of tlie locatibn of the Project
and must be acceptable to the Owner.
10.9.2 Such Performance Bond shall be issued in the
penal sum equal to one-hundred percent (100%) of the
OC~~~~~~~~O{OOXlXMM.KJXti.
Agreed estimated construction cost of the Project as
reflected in the Schedule of Values.
(Cross-out one of the above) .
Such Performance Bond shall cover the cost to complete the
Work, but shall not cover any damages of the type specified
to be covered by the insurance pursuant to Paragraphs 10.2
and 10,3, whether or not such insurance is provided or in an
amount sufficient to cover such damages,
10.9.3 The penal sum of the Payment Bond shall equal the
penal sum of the Performance Bond,
ARTICLE 11
SUSPENSION, TERMINATION OF THE AGREEMENT
AND OWNER'S RIGHT TO PERFORM
DESIGN-BUILDER'S RESPONSIBILITIES
11.1 SUSPENSION BY THE OWNER FOR
CONVENIENCE
11.1,1 The Owner may order the Design-Builder in writing
to suspend, delay or interrupt all or any part of the Work with-
out cause for such period of time as the Owner may deter-
mine to be appropriate for its convenience,
11.1,2 Adjustments caused by suspension, delay or inter-
ruption shall be made for increases in the Contract Price
and/or the Date of Substantial Completion and/or the Date
of Final Completion, No adjustment shall be made if the
Design-Builder is or otherwise would have been responsible
for the suspension, delay or interruption of the Work, or if
another provision of this Agreement is applied to render an
equitable adjustment.
11.2 OWNER'S RIGHT TO PERFORM DESIGN-
BUILDER'S OBLIGATIONS AND TERMINATION BY
THE OWNER FOR CAUSE
11.2.1 If the Design-Builder persistently fails to perform any
of its obligations under this Agreement, the Owner may, after
five (5) days' written notice, during which period the Design-
Builder fails to perform such obligation, undertake to perform
such obligations, The Contract Price shall be reduced by the
cost to the Owner of performing such obligations,
.
17
AGC DOCUMENT NO. 415. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BElWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of Payment is a Lump Sum Based on an Owner's Poogram Including Schematic Design Documents)
@ 1999, The Associated General ContI actors of America
'11.2.2" Upon five (5) days' written notice to the Design-
Builder and the Design-Builder's surety, if any, the Owner
may terminate this Agreement for any of the following rea-
sons:
.1 if the Design-Builder persistently utilizes
improper materials and/or inadequately skilled
workers;
.2 if the Design-Builder does not make proper
payment to laborers, material suppliers or contrac-
tors provided that the Owner is making payments to
the Design-Builder in accordance with the terms of
this Agreement;
.3 if the Design-Builder persistently fails to
abide by the orders, regulations, rules, ordinances
or laws of governmental authorities having jurisdic-
tion; or
.4 if the Design-Builder otherwise materially
breaches this Agreement.
If the Design-Builder fails to cure or commence and continue
to cure within the five (5) days, the Owner, without prejudice
to any other right or remedy, may take possession of the
Worksite and complete the Work utilizing any reasonable
means, I n 'this event, the Design-Builder shall not have a
right to further payment until the Work is completed,
11.2.3 If the Design-Builder files a petition under the Bank-
ruptcy Code, this Agreement shall terminate if the Design-
Builder or the Design-Builder's trustee rejects the Agreement
or, if there has been a default, the Design-Builder is unable
to give adequate assurance that the Design-Builder will per-
form as required by this Agreement or otherwise is unable
to comply with the requirements for assuming this Agree-
ment under the applicable provisions of the Bankruptcy
Code,
11.2.4 In the event the Owner exercises its rights under
Subparagraph 11.2.1 or 11.2,2, upon the request of the
Design-Builder the Owner shall provide a detailed account-
ing of the cost incurred by the Owner.
11.3 TERMINATION BY OWNER WITHOUT CAUSE If
the Owner terminates this Agreement other than as set forth
in Paragraph 11.2, the Owner shall pay the Design-Builder
for all Work executed and for all proven loss, cost or expense
in connection with the Work, plus all demobilization costs. In
addition, the Design-Builder shall be paid an amount calcu-
lated as set forth below:
.1 If the Owner terminates this Agreement
prior to commencement of the construction, the
Design-Builder shall be paid the unpaid balance of
the Design-Builder's design .costs as; set forth in the
Schedule of Values and a premium as set forth
below:
(Insert here the amount agreed to by the Parties) .
N/A
.2 If the Owner terminates this Agreement
after commencement of the construction, the
Design-Builder shall be paid the unpaid balance of
the Design-Builder's design costs as set forth in the
Schedule of Values, the Construction Services pro-
vided to date and a premium as set forth below:
(Insert here the amount agreed to by the Parties) .
0%
.3 The Owner shall also pay to the Design-
Builder fair compensation, either by purchase or
rental at the election of the Owner, for all equipment
retained, The Owner shall assume and become
liable for obligations, commitments and unsettled
claims that the Design-Builder has previously
undertaken or incurred in good faith in connection
with the Work or as a result of the termination of this
Agreement. As a condition of receiving the pay-
ments provided under this Article 11, the Design-
Builder shall cooperate with the Owner by taking all
steps necessary to accomplish the legal assignment
of the Design-Builder's rights and benefits to the
Owner, including the execution and delivery of
required papers,
11,4
TERMINATION BY THE DESIGN-BUILDER
11.4,1 Upon five (5) days' written notice to the Owner, the
Design-Builder may terminate this Agreement for any of the
following reasons:
.1 if the Work has been stopped for a sixty
(60) day period;
a, under court order or order of other
governmental authorities having jurisdic-
tion; or
18
AGC DOCUMENT NO. 415. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND;:GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis cf Payment is a Lump Sum Based on an Owner's Program Including Schematic Design Documents)
@ 1999, The Associated General Contractors of America
b. c1s a result of the declaration of a
national emergency or other governmental
act emergency during which, through no
act or fault of the Design-Builder, materials
are not available;
.2 if the Work is suspended by the Owner for
sixty (60) days; or
.3 if the Owner fails to furnish reasonable evi-
d ence that sufficient funds are available and com-
mitted for the entire cost of the Project in
accordance with Subparagraph 4,1,3 of this Agree-
ment.
11.4.2 If the Owner has for thirty (30) days failed to pay the
Design-Builder pursuant to Subparagraph 9.1.3, the Design-
Builder may give written notice of its intent to terminate this
Agreement. If the Design-Builder does not receive payment
within five (5) days of giving written notice to the Owner, then
upon five (5) days additional written notice to the Owner, the
Design-Builder may terminate this Agreement.
11.4.3 Upon termination by the Design-Builder in accor-
dance with Subparagraph 11.4,1, the Design-Builder shall
be entitled to recover from the Owner payment for all Work
executed and for all proven loss, cost or expense in con-
nection with the Work, plus all demobilization costs and rea-
sonable damages, In addition, the Design-Builder shall be
paid an amount calculated as set forth either in Subpara-
graph 11,3.1 or 11.3,2, depending on when the termination
occurs, and Subparagraph 11,3,3,
ARTICLE 12
DISPUTE RESOLUTION
~UCh mediation within sixty (60) days of filin request 1'1\I)
Either party may terminate the 'on at any time after1~
the first session, but tl slon to terminate must be deliv-~J
ered in y the party's representative to the other
or,
12,3 EXHIBIT NO.1 If the dispute cannot be settled ~
"r.~~iati6r:lwWjthin sixty (60) days, the parties shall submit the
dispute to any dispute resolution process set forth in Exhibit
No,1,
12,4 MULTIPARTY PROCEEDING The parties agree
tha1 all parties necessary to resolve a claim shall be parties
to the same dispute resolution proceeding, Appropriate pro-
visions shall be included in all other contracts relating to the
Work to provide for the consolidation of such dispute reso-
lution proceedings,
pa~ in any dispute arising out of or relating to ' g~~~_
ment or its breach that is resolved by t 'ute resolutio
process set forth in Exhibit No, be entitled to recov
from the other party re able attorney's fees, costs and
expenses incu y the prevailing party in connection with
such e resolution process after direct discussions and
12.6 LIEN RIGHTS Nothing in this Article shall limit any
rights or remedies not expressly waived by the Design-
Builder that the Design-Builder may have under lien laws.
ARTICLE 13
MISCELLANEOUS PROVISIONS
13,1 ASSIGNMENT Neither the Owner northe Design-
Builder shall assign its interest in this Agreement without the
written consent of the other except as to the assignment of
proceeds, The terms and conditions of this Agreement shall
be binding upon both parties, their partners, successors,
assigns and legal representatives, Neither party to this
Agreement shall assign the Agreement as a whole without
written consent of the other except that the Owner may
12.2 INITIAL DISPUTE RESOLUTION If a dispute assign the Agreement to a wholly-owned subsidiary of the
arises out of or relates to this Agreement or its breach, the Owner when the Owner has fully indemnified the Design-
parties shall endeavor to settle the dispute first through direct ~ Builder or to an institutional lender providing construction
discussions. ' . financing for the Project as long as the assignment is no Jess
discussions, the parties shall endeavor to settle favorable to the Design-Builder than this Agreement. In the
by mediation under the Construction stry Mediation~. ~ tl event of such assignment, the Design-Builder shall execute
Rules of the American Arbi 'n Association before ~~ all consents reasonably required, In such event, the wholly-
recourse to the dispute ution procedures contained in owned subsidiary or lender shall assume the Owner's rights
this Agreemen e location of the mediation shall be the and obligations under the Contract Documents. If either
e Project. Once one party files a request for party attempts to make such an assignment, that party shall
f- nevertheless remain legally responsible for all obligations
12.1 WORK CONTINUANCE AND PAYMENT Unless
otherwise agreed in writing, the Design-Builder shall con-
tinue the Work and maintain the approved schedules during
all dispute resolution proceedings, If the Design-Builder con-
tinues to perform, the Owner shall continue to make pay-
ments in accordance with the Agreement.
19
AGC DOCUMENT NO. 415. STANDARD FORM OF DESIGN-BUILD AGREEMENT ANQ,GENERAL CONDITIONS BET\NEEN OWNER AND
DESIGN-BUILDER (Where the Basis of Payment is a Lump Sum Based on an Owner's Program Including Schematic Design Documents)
@ 1999, The Associated General Contractors of America
. under t.he Agreement, unles's otherWise agreed by the other
party,
13.6 JOINT DRAFTIN~ The parties to this Agreement
f expressly agree that this Agreement was jointly drafted, and
that both had opportunity to negotiate its terms and to obtain
13.2 GOVERNING LAW This Agreement shall be gov- the assistance of counsel in reviewing its terms prior to
erned by tl'1o Is'/: iA e#cst at the leeatiefl of the rrojeet. ~~I'Q. execution, Therefore, this Agreement shall be construed nei-
\ aU).. r\l<h ther against nor in favor of either party, but shall be con-
13.3 SEVERABILITY The partial or complete invalidit~ strued in a neutral manner,
of anyone or more provisions of this Agreement shall not
affect the validity or continuing force and effect of any other
provision,
13.4 NO WAIVER OF PERFORMANCE The failure of
either party to insist, in anyone or more instances, on the
performance of any of the terms, covenants or conditions of
this Agreement, or to exercise any of its rights, shall not be
construed as a waiver or relinquishment of such term,
covenant, condition or right with respect to further perform-
ance,
13.5 TITLES AND GROUPINGS The title given to the
articles of this Agreement are for ease of reference only and
shall not be relied upon or cited for any other purpose, The
grouping of the articles in this Agreement and of the Owner's
specifications under the various headings is solely for the
purpose 01 convenient organization and in no event shall the
grouping of provisions, the use of paragraphs or the use of
headings be construed to limit or alter the meaning of any
provisions,
3/00
20
13.7 RIGHTS AND REMEDIES The parties' rights, lia-
bilities, responsibilities and remedies with respect to this
Agreement, whether in contract, tort, negligence or other-
wise, shall be exclusively those expressly set forth in this
Agreement.
13.8
OTHER PROVISIONS
.
13.8.1 Warranty:
Lightning Protection System
5 years on materials. 1 year on
Labor, Electrical and Low Voltage
surge protection 5 years on Material,
2 years on Labor. This warranty is
on defective material only.
13.8.2 Payment & Performance Bond:
Will be provided within ten
(10) days of receipt of signed contract.
AGC DOCUMENT NO, 415. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of Payment is a Lump Sum Based on an Owner's Prtgram Including Schematic Design Documents)
@ 1999, The Associated General Contractors of America
Exhibit No, 1, dated
March 2,Oth, 2Q03
.
AGe DOCUMENT NO. 415
STANDARD FORM OF DESIGN-BUILD
AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER
(Where the Basis of Payment is a lump Sum Based on an
Owner~s Program Including Schematic Design Documents)
DISPUTE RESOLUTION MENU
Pursuant to Paragraph 12,3, if neither direct discussions nor mediation successfully resolve the dispute, the parties agree
that the following shall be used to resolve the dispute,
(Check the appropriate selection(s), These procedures can be used singularly, or progressively as agreed to by the parties.)
Dispute Review Board The Dispute Review Board is composed of one member selected by the Owner, one .
selected by the Design-Builder, and a third member selected by the Owner and Design-Builder selected members.
This Board shall be selected by the time construction commences, shall meet periodically, and shall make advisory
decisions which may be introduced into evidence at any subsequent dispute resolution process, If a Dispute Review
Board is selected, it is understood its review will precede mediation,
Advisory Arbitration Advisory Arbitration shall be pursuant to the Construction Industry Rules of the American .
Arbitration Association,
Mini Trial Each party, in the presence of senior management, shall submit its position to a mutually selected .
individual who shall make a non-binding recommendation to the parties. Such advisory decision may be introduced
into evidence at any subsequent dispute resolution process,
Binding Arbitration Binding Arbitration shall be pursuant to the Construction Industry Rules of the American .
Arbitration Association unless the parties mutually agree otherwise, A written demand for arbitration shall be filed
with the American Arbitration Association and the other party to the Agreement within a reasonable time after the
dispute or claim has arisen, but in no event after the applicable statute of limitations for a legal or equitable pro-
ceeding would have run, The location of the arbitration proceedings shall be at the office of the American Arbitra-
tion Association nearest the Project, unless the parties agree otherwise, The arbitration award shall be final.
Notwithstanding Paragraph 13,2, this agreement to arbitrate shall be governed by the Federal Arbitration Act and
judgment upon the award may be confirmed in any court having jurisdiction.
X Litigation Action may be filed in the appropriate state Of fee/clsl court located in the jurisdiction in which the Project
is located, '-:T\IlL\~'~~',-~~~~--'1~ ~C-*...~ ti
, . dA.~~ ~ ~~ ~~ e>1J ~~~ '
tt::; ~ ~ ~~t() ~ p.~.
AGC DOCUMENT NO. 415. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND~ENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of Payment is a Lump Sum Based on an Owner's Program Including Schematic Design Documents)
@ 1999, The Associated General Contractors of America
ARTICLE 14
EXISTING CONTRACT DOCUMENTS
The Contract Documents in existence at the time of execution of this Agreement are as follows:
.
B&B Electrical Contractors, Inc. Proposal dated 10/16/2002
RFP #02-180 City of Augusta-Richmond County
Addendum #1 dated 10/04/2002
Addendum #2 dated 10/09/2002
Notice of Award
Certificate of Owner's Attorney
Notice to Proceed
The following Exhibits are a part of this Agreement:
EXHIBIT NO, 1 Dispute Resolution Menu, one page,
Exhibit No.2 Application for Payment & Breakdown Sheet, two pages.
f(~~.~XIDe>>~OOX;x:oowk;K:oox.xxxxxxXXXXXWOlWX .
Exhibit No. 3 AGC Document #496 Design-Build Change Order, one page.
ATTEST:
This Agreement is entered into as of the date e tered in Article 1,
);;;ff{/~
1:WNER:
. BY:
PRINT NAME:
~ .
.
PRINT TITLE:
b
M",~O'v
.
.
.
BY:
ContractoIf;, Inc
ATTEST:
.
Dennis D. Bennett
.
PRINT TITLE: President
.
21
AGC DOCUMENT NO. 415. STANDARD FORM OF DESIGN-BUILD AGREEMENT AND GENERAL CONDITIONS BETWEEN OWNER AND
DESIGN-BUILDER (Where the Basis of Payment is a Lump Sum Based on an Owner's Program Including Schematic Design Documents)
@ 1999, The Associated General Contractors of America
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Exhibit 3
THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA
1.lll
For Use with AGC Document 415, Standard Form 01 Design-Build
Agreement and General Conditions Between Owner and Design-Builder
(Where the Basis of Payment is a Lump Sum Based on an Owner's Program Including Schematic Design Documents)
AGC DOCUMENT NO. 496
DESIGN-BUILD CHANGE ORDER
(Where the Basis of Payment of the Design-Build Agreement is a Lump Sum)
Owner: Augusta-Richmond County
Date of Agreement: March 20, 2003
.
.
.
Design-Builder: B&B Electrical Contractors Change Order No,:
Project: Phinizy Road Lightning Protectioahange Order Date:
System
Section I. Describe the Work:
.
Section II.
A. ADJUSTMENT TO CONTRACT PRICE
Original Contract Price
Previous Change Orders #1 through
Th is Change Order
New Contract Price
$169,176.00
$
.
.
.
.
B, ADJUSTMENT TO CONTRACT TIME
o Contract Time is Unchanged
o Contract Time is Adjusted
Original Date of Substantial Completion
Previous Change Orders #1 through
This Change Order
New Date of Substantial Completion
Upon the execution of this document by both parties, the Agreement is modified by, but only to the extent of, this Change
Order, which becomes a part of the Contract Documents and is subject to the terms and conditions of the Agreement. The
Design-Builder is directed to make the change in the Work described above, The Design-Builder shall keep accurate
records of the services, labor and materials used to perform the described Work and shall include the cost of such change
n its next application for payment in a separate line item,
.
.
.
.
days
days
DESIGN-BUILDER: OWNER:
3y: . By: .
James C. Ball
nUe: . litle: President .
)ate: . Date: .
~GC DOCUMENT NO, 496 . DESIGN-BUILD CHANGE ORDER (Where the Basis 01 Payment 01 the Design-Build Agreement is a Lump Sum)
;:> 1999, The Associated General Contractors 01 America
6/99
SECTION NP
NOTICE TO PROCEED
TO: B & B Electrical Contractors Inc.
DATE:
2280 Walden Drive
Augusta, GA 30904
PROJECT: Phinizy Road Lightning Protection System
You are hereby notified to commence work in accordance with the Agreement dated _
,2003, within Ten (10) calendar days following this date,
the date first written above, and you are to complete the work within One hundred eighty
(180) consecutive calendar days after the date of this notice. The date set for completion
of all work is therefore . 2003.
BY:
Richard M, Acree, Jr., Assistant Director
Augusta Public Works and Engineering Department
Facilities Management Division
ACCEPTANCE OF NOTICE
Receipt of the above NOTICE TO PROCEED is hereby acknowledged on this _day of
2003.
BY:
TITLE:
10
CERTIFICATE OF OWNER'S ATTORNEY
I, the undersigned , the authorized and acting legal
representative of Augusta, Georgia, do hereby certify as follows:
I have examined the attached Contract(s) and Surety Bonds, and the manner of execution
thereof, and I am of the opinion that each of the aforesaid agreements has been duly
executed by the proper parties thereto acting through their duly authorized representatives;
that said representatives have full power and authority to execute said agreements on
behalf of the respective parties named thereon; and that the foregoing agreements
constitute valid and legally binding obligations upon the parties executing the same in
accordance with the terms, conditions and provisions thereof.
James B. Wall, Attorney
Augusta, Georgia
DATE:
9