HomeMy WebLinkAboutTOTAL SYSTEMS COMMISSIONING ARC TEE CENTER1
STANDARD FORM OF CONTRACT
COMMISSIONING AUTHORITY
SERVICES
LUMP SUM
BETWEEN
AUGUSTA, GEORGIA
(hereinafter referred to as the Owner)
FO '
TOTAL SYSTEMS COMMISSIONING
(hereinafter referred to as the Commissioning Authority)
The Commissioning Authority Services required by this Contract are to be rendered for the following
project, hereinafter identified as the "Project ":
Project Name:
Augusta Trade, Exhibit and Event Center
Project Address:
Reynolds Street
City /State /Zip:
Augusta Georgia
Project ID #:
ARC — TEE Center
General Project
Construct an approximate 114,000 square foot Trade, Exhibit and
Description:
Event Center
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AGREEMENT FOR COMMISSIONING AUTHORITY SERVICES
TABLE OF CONTENTS
Page
Article 1
Article 2
Article 3
Article 4
Article 5
Article 6
Article 7
Article 8
Article 9
Article 10
Article 11
Article 12
Article 13
Article 14
Exhibit A
Exhibit B
Exhibit C
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Definitions ............................................................................ ..............................4
Relationship of the Parties ................................................... ..............................6
Basic Services ....................................................................... ..............................7
Compensation ....................................................................... ..............................9
Period Services ................................................................ .............................11
Owner's Responsibilities ..................................................... .............................11
Notices ................................................................................. .............................12
Insurance ............................................................................. .............................12
Indemnification ................................................................... .............................13
Termination of Agreement .................................................. .............................14
Dispute Resolution .............................................................. .............................15
Successors /Assignment/Third Parties ................................ .............................16
Ownership of Documents/
Confidential Information .................................................... .............................16
Additional Provisions .......................................................... .............................17
Project Documents
Master Project Construction Schedule
Scope of Services
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This Contract for Commissioning Authority Services is entered into between:
Owner
Owner's Name: Augusta, Georgia
Owner's Address: 530 Greene Street
City /State /Zip: Augusta, GA 30901
and
Commissioning Authority
Firm Name: Total Systems Commissioning, Inc.
Address: 2020 Howell Mill Road Suite C
City /State /Zip: Atlanta, GA 30318
This Contract for General Construction Management Services is executed under seal, and
shall be effective on the date signed by the last party to do so.
AUTHORIZED REPRESENTATIVES:
The authorized representatives and addresses of the Owner, the Architect, and the Construction
Manager are:
Owner's Representative (Augusta Office)
Firm Name: Heery International, Inc.
Name: Jacques Ware
Address: 501 Greene Street Suite 307
City /State /Zip: Augusta Georgia 30901
Email Address: jware @augustaga.gov
Phone: (706) 842 -5558 Cell: (706) 825 -8132 Fax: (706) 821 -2484
Architect's Representative
Firm Name: Thompson, Ventulett, Stainback & Associates, Inc.
Name: C. Andrew McLean, FAIA
Address: 2700 Promenade Two, 1230 Peachtree Street NC
City /State /Zip: Atlanta Georgia 30309
Email Address: amclean @tvsa.com
Phone: (404) 946 -6618 Cell: (404) 788 -6600 Fax: (770) 682 -4618
Commissioning Authority's Representative
Firm Name:
Total Systems Commissioning, Inc.
Name:
Richard Dutro
Address:
2020 Howell Mill Road, Suite C
City /State /Zip:
Atlanta, GA 30318
Email Address:
ddutro@tscx.org
Phone: (404) 355 -9403
Fax (404)35 -0275:
License #
FEIN # /SS#
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements stated herein, and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the Owner and the Commissioning Authority agree:
ARTICLE 1
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DEFINITIONS
The following words and phrases where appearing in initial capitalization, shall for the
purposes of this Agreement have the following meanings:
1.1 PROJECT. The Project shall be Commissioning consulting work associated with
architectural/engineering design, construction, equipment testing /start -up and
associated work, as described herein, for the new TEE Center, including design
and construction documents, bidding, construction administration and post -
construction services.
1.2 SERVICES. The Services to be performed by the Commissioning Authority under
this Agreement shall consist of the Basic Services and any Additional Services
both as defined herein.
1.3 BASIC SERVICES. Basic Services shall consist of the commissioning services as
described in Article 3 and as indicated and specifically designated in Exhibit "C"
to be performed and provided by the Commissioning Authority under this
Agreement in connection with the Project.
1.4 ADDITIONAL SERVICES. Additional Services shall consist of the
commissioning services agreed to be performed by the Commissioning Authority
in connection with the Project but which are not specifically designated as Basic
Services.
1.5 WORK. The Work shall consist of the Commissioning and related services
(excluding the Services rendered by the Design Consultant) performed on the
Project.
1.6 PROJECT DOCUMENTS. The Project shall be completed in accordance with the
following Project Documents which were prepared or approved by the Owner
prior to the execution of this Agreement between the Commissioning Authority
and the Owner:
1. Owner /Construction Program Manager Contract.
2. Building Program, including any modifications mutually agreed to, in
writing, between the parties to this agreement.
3. Master Schedule.
1.7 CONSTRUCTION CONTRACT DOCUMENTS. The Construction Contract
Documents shall consist of the plans and specifications prepared by the Design
Consultant and Commissioning Authority, and any addenda and change orders
thereto, the Owner's Project Manual documents such as the Conditions of the
Contract, Contract Forms, Bidding Requirements, etc., and the Owner - Contractor
agreement, all of which shall be compatible and consistent with this Agreement
and the Owner /Construction Program Manager Contract.
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1.8 CONTRACTOR (CM at Risk). The Contractor is the person or entity which
enters into an agreement with the Owner to perform the construction of or any
construction on the Project, including, without limitation, the providing of labor,
materials, and equipment incorporated or to be incorporated into the Project. The
term "Contractor" means the Contractor or its authorized representative, but
excludes the Construction Program Manager and the Commissioning Authority.
1.9 BASIC SERVICES COMPENSATION. Basic Services Compensation shall be the
lump sum fee Designated in Article 4 to be paid by the Owner to the
Commissioning Authority in connection with the performance of the Basic
Services by the Commissioning Authority.
1.10 ADDITIONAL SERVICES COMPENSATION. Additional Services Compensation
shall be the fees determined in accordance with Article 7 to be paid by the Owner
to the Commissioning Authority in connection with the performance of Additional
Services.
1.11 REIMBURSABLE EXPENSES. In connection with Additional Services
Reimbursable Expenses are those actual expenditures made by the
Commissioning Authority, its employees, or its Professional Consultants in the
interest of the Project including but not limited to, County standard per diem
out -of- pocket expenses for travel and living expenses in connection with the
Project, long distance telephone, telex, expressage, professional consultants (other
than those required for the performance of the Basic Services), and Owner -
approved document reproduction. Pre - approved document reproduction expenses
for Basic Services include expenses incurred for review submittals required by the
Agreement, Bidding Documents, exclusive of addenda, and documents issued for
permitting and /or construction. Travel expenses for Basic Services shall be
covered by Basic Services Lump Sum.
1.12 MASTER PROJECT CONSTRUCTION SCHEDULE. The Master Project
Construction Schedule is a tabulation of the major activities, phases, sequences
and timing of the major project activities for design, construction procurement,
construction and occupancy as described in "Exhibit B."
1.13 DESIGN PHASE CHANGE ORDER. A Design Phase Change Order is the form
of documentation from the Owner approving and authorizing a modification to
the Program, Budget, Master Schedule, or previously approved Commissioning
Phase documents.
1.14 DESIGN CONSULTANT. The architect /engineer hired by the Owner to design
the new TEE Center.
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ARTICLE 2
RELATIONSHIP OF THE PARTIES
2.1 COMMISSIONING CONSULTING SERVICES. The Commissioning Authority
shall provide professional building commissioning consulting services for the
Project in accordance with the terms and conditions of this Agreement. The
Commissioning Authority's performance of services shall be as professional
consultant to the Owner to carry out the activities of Building Commissioning and
to provide the technical documents and supervision to achieve the Owner's
Project objectives.
2.2 COMMISSIONING AUTHORITY SERVICES. The Commissioning Authority
understands that the Owner has entered into a separate contract with an
architect, which includes related engineering, and agrees to communicate,
through the Construction Program Manager, with the architect on matters
pertaining to building systems, including mechanical, electrical, plumbing and
exterior envelope, to the extent needed to support the architect's mission to
design the facility and its systems in accordance with the design intent.
2.3 OWNER REPRESENTATION. The Construction Program Manager is under
separate contract with the Owner to provide construction program management
services. The Construction Program Manager has no Commissioning
responsibilities of any nature. None of the activities of the Construction Program
Manager supplant or conflict with any other services and responsibilities
customarily furnished by the Commissioning Authority or subconsultants in
accordance with generally accepted commissioning practices except as otherwise
modified by this Agreement. The Commissioning Authority understands and
agrees that the Construction Program Manager is the Owner's exclusive
representative to the Commissioning Authority and Contractor insofar as this
Agreement is concerned. All instructions by the Owner to the Commissioning
Authority relating to services performed by the Commissioning Authority will be
issued or made through the Construction Program Manager. All communications
and submittals of the Commissioning Authority to the Owner and Contractor
shall be issued or made through the Construction Program Manager unless the
Construction Program Manager shall otherwise direct. The Construction
Program Manager shall have the authority to establish procedures, consistent
with this Agreement, to be followed by the Commissioning Authority and
Contractor and to call periodic conferences to be attended by the Commissioning
Authority, and his subconsultants, throughout the term of this Agreement.
2.4 The Commissioning Authority understands and agrees that it is not a third party
beneficiary of any contract between the Owner and the Construction Program
Manager or of their performance thereunder; nor is Commissioning Authority a
third party beneficiary of any contract between the Owner and the
Commissioning Authority. Commissioning Authority waives any rights, claims or
causes of action it may have as an alleged third party beneficiary of any such
contracts or of the performance of the parties thereunder.
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2.5 COMMISSIONING AUTHORITY REPRESENTATION.
2.5.1 The Commissioning Authority shall provide a list of all consultants which the
Commissioning Authority intends to utilize relating to the Project. The list shall
include such information on the qualifications of the consultants as may be
requested by the Owner. The Owner, through the Construction Program
Manager, reserves the right to review the consultants proposed, and the
Commissioning Authority shall not retain a consultant to which the Owner,
through the Construction Program Manager, has a reasonable objection.
2.5.2 The Commissioning Authority shall provide to the Owner, through the
Construction Program Manager, a list of the proposed key project personnel of the
Commissioning Authority and its consultants to be assigned to the Project. This
list shall include such information on the professional background of each of the
assigned personnel as may be requested by the Owner, through the Construction
Program Manager. Such key personnel and consultants shall be satisfactory to
the Owner and shall not be changed except with the consent of the Owner unless
said personnel cease to be in the Commissioning Authority's (or its consultants, if
applicable) employ.
2.6 DIVISION OF RESPONSIBILITIES /SERVICES. The Commissioning Authority
understands and agrees that should the Construction Program Manager provide
the Commissioning Authority with any estimating assistance, cost or time control
recommendations or other consultation, recommendations or suggestions, any or
all such activities on the part of the Construction Program Manager or any other
representative of the Owner shall in no way relieve the Commissioning Authority
of the responsibility of fulfilling its obligations and responsibilities under this
Agreement.
ARTICLE 3
BASIC SERVICES
3.1 SCOPE OF SERVICES.
3.1.1 The Basic Services to be provided by the Commissioning Authority shall be
performed in accordance with attached Exhibit "C ".
3.2 COMMISSIONING AUTHORITY'S PROFESSIONAL RESPONSIBILITY AND
STANDARD OF CARE.
3.2.1 By execution of this Agreement, the Commissioning Authority warrants that (a) it
is an experienced commissioning firm having the skill and the legal and
professional ability necessary to perform all the Services required of it under this
Agreement in connection with the design, construction and commissioning of a
project having the scope and complexity of the Project contemplated herein; (b) it
has the capabilities and resources necessary to perform its obligations hereunder;
and (c) it is familiar with all current laws, rules and regulations which are
applicable to the Commissioning of the Project (such laws, rules and regulations
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including, but not limited to, all local ordinances, requirements of building codes
of city, county, state and federal authorities which are applicable to the Project,
local sanitary laws and rules and regulations, and all orders and interpretations
by governing public authorities of such ordinances, requirements, laws, rules and
regulations in effect at the time of commencement of services on the Project), and
that all drawings, specifications and other documents prepared by the
Commissioning Authority shall be prepared in accordance with and shall
accurately reflect and incorporate all such laws, rules and regulations.
3.2.2 The Commissioning Authority hereby represents and agrees that the plans,
specifications and other documents prepared by it pursuant to this Agreement
shall be complete and functional for the purposes intended, except as to any
deficiencies which are due to causes beyond the control of the Commissioning
Authority, and that the Work, if implemented in accordance with the intent
established by such plans, specifications and other documents, shall be sound,
complete and suitable for the purposes for which it is intended.
3.2.3 The Commissioning Authority shall be responsible for any errors, inconsistencies
or omissions in their plans, specifications and other documents. While the
Commissioning Authority cannot guarantee the various documents required
herein to be completely free of minor human errors and omissions, it shall be the
responsibility of the Commissioning Authority throughout the period of
performance under this Agreement to use due care with professional competence.
The Commissioning Authority will correct at no additional cost to the Owner any
and all errors and omissions in the plans, specifications and other documents
prepared by the Commissioning Authority. The Commissioning Authority further
agrees, at no additional cost, to render assistance to the Owner in resolving
problems relating to the Commissioning documents.
3.2.4 In the event of a construction change order resulting from completed construction
work that must be demolished, disassembled, redone or removed, as a result of
errors or omissions in the Commissioning Authority's work, the Commissioning
Authority assents to the Owner's right to withhold payments to Commissioning
Authority, in the amount of the change order that is attributable to the errors and
omissions. The Owner shall not have the right to unjust enrichment or
withholding payments to the Commissioning Authority for portions of change
orders that convey reasonable value to Owner, such as approved work or
materials associated with the finished building.
3.3 PROJECT REQUIREMENTS.
3.3.1 The Commissioning Authority shall receive the project documents as outlined in
Exhibit "A" Project Documents.
3.3.2 Incorporated herein and made a part of this Agreement by reference as part of
"Exhibit "A" is the Design Development Phase Submittal, which defines the
physical and environmental parameters for the Project and establishes the design
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objectives and criteria. No deviations from the design shall be allowed without
written approval by the Owner.
3.3.3 Incorporated herein and made a part of this Agreement by reference as Exhibit
"B" is the Master Project Construction Schedule, which defines the sequence and
timing of the design and construction activities.
3.4 PROJECT CONFERENCES.
3.4.1 Throughout all phases of the Project, the Commissioning Authority and its
consultants shall meet periodically with the Owner and Construction Program
Manager no less than as indicated herein. Attendees shall be as jointly
determined by the Owner, Construction Program Manager and Commissioning
Authority. As a minimum, regularly scheduled meetings which the
Commissioning Authority will attend include:
3.4.1.1 Design Phase: 60% Construction Documents Review and Subsequent CD reviews
(90 %, 100 %).
3.4.1.2 Construction Phase: a.) Four Commissioning status report meetings. b.) The
Commissioning Authority shall be responsible for scheduling and attending any
and all meetings (logging, test, etc.) necessary to properly coordinate the
commissioning effort to complete all reports.
ARTICLE 4
COMPENSATION
4.1 BASIC SERVICES COMPENSATION
4.1.1 The Owner shall compensate the Commissioning Authority in accordance with
the terms and conditions of this Agreement, including the following:
4.1.2 For the Basic Services of the Commissioning Authority, Basic Services
Compensation shall be in the amount of Sixty Eight Thousand Eight Hundred
Fifty Dollars ($68 850 ).
4.1.3 The Basic Services Compensation stated in paragraph 4.1.1 includes all
compensation and other payments due the Commissioning Authority (manpower,
overhead, profit, direct costs, etc.) in the performance of the Basic Services.
4.2 PAYMENTS TO THE COMMISSIONING AUTHORITY. Payments on account of
the Commissioning Authority shall be made as follows:
4.2.1 Payments for Basic Services shall be made monthly in proportion to services
performed so that the compensation at the completion of each Phase shall equal
the following percentages of the Basic Services Compensation.
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Design Development Review and Initial Plan ........
Construction Documents Phase ...............................
Bidding or Negotiations Phase . ...............................
Construction Phase (pre- Commissioning) ...............
Commissioning Phase ............... ...............................
Close -out and Turnover All Required Reports........
Notification from USGBC of LEED Certification ...
.......... ............................... 25%
.......... ............................... 40%
.......... ............................... 45%
.......... ............................... 60%
.......... ............................... 90%
.......... ............................... 95%
............ ...........................100%
4.2.2 No deductions shall be made from the Commissioning Authority's Basic Services
Compensation on account of penalty, liquidated damages, retainage or other sums
withheld from payments to Contractor.
4.2.3 If the Project is suspended for more than six months or abandoned in whole or in
part by the Owner, the Commissioning Authority shall be paid compensation for
services performed prior to receipt of written notice from the Owner of such
suspension or abandonment, and all reasonable termination expenses resulting
from such suspension or abandonment. If the Project is resumed after being
suspended for more than six months, the Commissioning Authority's Basic
Services Compensation shall be equitably adjusted.
4.2.4 All payment requests shall be submitted to the Construction Program Manager
for processing, in a format acceptable to the Construction Program Manager.
4.3 ADDITIONAL SERVICES COMPENSATION.
4.3.1 With respect to any Additional Services, as described in Article 7 herein,
performed by the Commissioning Authority hereunder, the Commissioning
Authority and Owner shall negotiate an equitable adjustment to the Basic
Services Compensation.
4.4 ACCOUNTING RECORDS.
4.4.1 Records of the Commissioning Authority with respect to Additional Services and
payroll, consultant and other expenses (including Reimbursable Expenses)
pertaining to the Project, shall be kept on generally accepted accounting
principals and shall be available to the Owner or its authorized representative for
inspection and copying at mutually convenient times.
4.4.2 At the request of the Owner or its authorized representative the Commissioning
Authority will supply in a timely manner and certify as accurate, unaltered copies
of all time sheets, invoices, and other documents to substantiate and document
any and all Additional Services and Reimbursable Expenses.
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ARTICLE 5
PERIOD OF SERVICE
5.1 Unless earlier terminated as provided in Article 11 hereof, this Agreement shall
remain in force for a period which may reasonably be required for the Basic
Services and Additional Services hereunder. However, the provisions of the
Agreement relating to Professional Responsibility (paragraph 3.2); Dispute
Resolution (Article 12); Professional Liability coverage (Article 9); Indemnification
(Article 10); and Ownership of Documents /Confidential Information (Article 14)
shall remain in effect after termination of the other provisions of the Agreement.
5.2 If the Project is delayed through no fault of the Commissioning Authority, all
specific dates noted in the Master Schedule that are affected by the delay will be
adjusted by the number of calendar days of the delay.
5.3 If the Owner materially revises the Project, a reasonable time extension and /or
credit shall be negotiated between the Commissioning Authority and the Owner.
5.4 Time is of the essence of this Agreement.
ARTICLE 6
OWNER'S RESPONSIBILITIES
6.1 The Owner shall provide full information regarding the requirements for the
Project.
6.2 The Owner shall examine documents submitted by the Commissioning Authority
and shall render decisions pertaining thereto promptly, to avoid unreasonable
delay in the progress of the Commissioning Authority's Services.
6.3 The Owner shall furnish copies of design architect /engineer's interim review
submittals, including Schematic Design, Design Development, 60% CD and 90%
CD's, for use in performing the scope of work described herein.
6.4 The Owner shall furnish copies of design architect /engineer's bid documents and
construction documents..
6.5 All services, information, surveys and reports required of the Owner, shall be
furnished at the Owner's expense and the Commissioning Authority shall be
entitled to rely upon their accuracy and completeness.
6.6 The Owner shall furnish information and approvals required of it expeditiously,
for orderly progress of the Work and shall endeavor to adhere as closely as
possible with the time conditions for such Owner activities as set forth in all
approved schedules for the Project.
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ARTICLE 7
NOTICES
7.1 Any notice required by this Agreement or other communications to either party by
the other shall be in writing and deemed given when delivered personally or five (5)
days after deposit in the United States Post Office, postage prepaid certified mail,
return receipt requested, addressed as follows, or to such other address as shall be
duly given by notice meeting the requirement of this Article.
To Owner: Mr. Fred Russell
Augusta Richmond County Administrator
530 Greene Street,
Room 801
Augusta, GA 30911
To Commissioning Authority:
With Copy to Construction Program Manager:
Mr. Jacques Ware
Heery International, Inc.
501 Greene Street; Suite 313
Augusta, GA 30901
ARTICLE 8
INSURANCE
8.1 The Commissioning Authority shall purchase and maintain insurance for protection
from claims under worker's or workmen's compensation acts; claims resulting from
negligent acts or omissions for damages because of bodily injury, including personal
injury, sickness, disease or death of any of the Commissioning Authority's employees
or any other person; claims for damages because of injury to or destruction of personal
property including loss of use resulting therefrom; and claims arising out of the
performance of this Agreement and caused by negligent acts or omissions for which
the Commissioning Authority is legally liable. Minimum limits of coverage shall be:
INSURANCE DESCRIPTION
a. Worker's Compensation
b. Public Liability
Bodily Injury: Each Person
Bodily Injury: Each Accident
Property Damage: Each Accident
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Minimum Required Coverage
Statutory
$1,000,000 Combined Limit
$100,000
$200,000
$100,000
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c. Automobile Liability & Property Damage $1,000,000 Combined Limit
Bodily Injury: Each Person $100,000
Bodily Injury: Each Accident $200,000
Property Damage: Each Accident $100,000
d. Professional Liability: $1,000,000 per Loss /Claim
8.2 Evidence of such insurance shall be furnished to the Owner, and the Owner shall
receive thirty (30) days prior written notice of any cancellation, non - renewal or
reduction of coverage of any of the policies. Upon notice of such cancellation, non -
renewal or reduction, the Commissioning Authority shall procure substitute
insurance so as to assure the Owner that the minimum limits of coverage are
maintained continuously throughout the period of this Agreement. The
Commissioning Authority shall deliver to the Owner a certificate of insurance for its
Professional Liability coverage annually, so long as it is required to maintain such
coverage under paragraph 9.4.
8.3 All insurance policies (with the exception of Professional Liability) required under
this Agreement shall name the Owner as an additional insured for the insurance and
shall contain a waiver of subrogation against the Owner.
8.4 The Commissioning Authority shall maintain in force during the performance of this
contract and for 2 years after final completion of the Project, the Professional Liability
insurance coverage referenced above.
ARTICLE 9
INDEMNIFICATION
9.1 Notwithstanding anything to the contrary contained herein, the Commissioning
Authority shall indemnify and hold harmless the Owner, the Construction Program
Manager and their Authoritys and employees from and against all claims, damages,
losses and expenses, including but not limited to attorney's fees, arising out of or
resulting from (i) the Commissioning Authority's performance or failure to perform its
obligations under this Agreement and (ii) any claim, damage, loss or expense
attributable to bodily injury, sickness, disease or death, or to injury to or destruction
of personal property including the loss of use resulting therefrom and caused in whole
or in part by any negligent act or omission of the Commissioning Authority, anyone
directly or indirectly employed by the Commissioning Authority or anyone for whose
acts the Commissioning Authority may be liable. Such obligation shall not be
construed to negate, abridge or otherwise reduce any other right or obligation of
indemnity which would otherwise exist as to any party or person described in this
Article.
9.2 Except as otherwise set forth in this Agreement, the Commissioning Authority and
the Owner shall not be liable to each other for any delays in the performance of their
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respective obligations and responsibilities under this Agreement which arise from
causes beyond their control and without their fault or negligence, including but not
limited to, any of the following events or occurrences: fire, flood, earthquake,
epidemic, atmospheric condition of unusual severity, war, state or local government
acting in its sovereign capacity, and strikes. Owner shall not be liable to the
Commissioning Authority for acts or failures to act by Construction Program
Manager, the Contractor or the Owner's consultants.
ARTICLE 10
TERMINATION OF AGREEMENT
10.1 If (1), the Owner abandons the Project or the Project is stopped for more than six (6)
months due to actions taken by the Owner, or under an order of any court or other
public authority having jurisdiction, or as a result of an act of government, such as a
declaration of a national emergency making materials unavailable through no act or
fault of the Commissioning Authority or its employees, or (2), the Owner has failed
to substantially perform in accordance with the provisions of this Agreement due to
no fault of the Commissioning Authority and such non - performance continues
without cure for a period of thirty (30) days after the Owner receives from the
Commissioning Authority a written notice of such nonperformance (including a
detailed explanation of the actions of the Owner required for cure), the
Commissioning Authority may, upon fifteen (15) day's additional written notice to
the Owner, terminate this Agreement, without prejudice to any right or remedy
otherwise available to the Owner, and recover from the Owner payment for all
services performed to the date of the notice terminating this Agreement.
10.2 Upon the appointment of a receiver for the Commissioning Authority, or if the
Commissioning Authority makes a general assignment for the benefit of creditors,
the Owner may terminate this Agreement, without prejudice to any right or remedy
otherwise available to the Owner, upon giving three (3) working days written notice
to the Commissioning Authority. If an order for relief is entered under the
bankruptcy code with respect to the Commissioning Authority, the Owner may
terminate this Agreement by giving three working days written notice to the
Commissioning Authority unless the Commissioning Authority or the trustee: (1),
promptly cures all breaches; (2), provides adequate assurances of future
performance; (3), compensates the Owner for actual pecuniary loss resulting from
such breaches; and (4), assumes the obligations of the Commissioning Authority
within the statutory time limits.
10.3 If the Commissioning Authority persistently or repeatedly refuses or fails, except in
cases for which extension of time is provided, to supply sufficient properly skilled
staff or proper materials, or persistently disregards laws, ordinances, rules,
regulations or orders of any public authority jurisdiction, or otherwise substantially
violates or breaches any term or provision of this Agreement, then the Owner may,
without prejudice to any right or remedy otherwise available to the Owner, and
after giving the Commissioning Authority written notice, terminate this Agreement.
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10.4 Upon termination of this Agreement by the Owner under paragraph 11.2 or 11.3 it
shall be entitled to furnish or have furnished the Services to be performed
hereunder by the Commissioning Authority by whatever method the Owner may
deem expedient. Also, in such cases, the Commissioning Authority shall not be
entitled to receive any further payment until completion of the Work; and the total
compensation to the Commissioning Authority under this Agreement shall be the
amount which is equitable under the circumstances. If the Owner and the
Commissioning Authority are unable to agree on the amount to be paid under the
foregoing sentence, the Owner shall fix an amount, if any, which it deems
appropriate in consideration of all of the circumstances surrounding such
termination, and shall make payment accordingly.
10.5 The Owner may, upon thirty day's written notice to the Commissioning Authority
terminate this Agreement, in whole or in part, at any time for the convenience of
the Owner, without prejudice to any right or remedy otherwise available to the
Owner. Upon receipt of such notice, the Commissioning Authority shall
immediately discontinue all services affected unless such notice directs otherwise.
In the event of a termination for convenience of the Owner, the Commissioning
Authority's sole and exclusive right and remedy is to be paid for all work performed
and to receive equitable adjustment for all work performed through the date of
termination. The Commissioning Authority shall not be entitled to be paid any
amount as profit for unperformed services or consideration for the termination of
convenience by the Owner.
10.6 Should the Owner terminate the Commissioning Authority as provided for under
this Article, the Owner will acquire such documents, including the ownership and
use of all plans, specifications, documents and materials relating to the Project
prepared by or in the possession of the Commissioning Authority. The
Commissioning Authority will turn over to the Owner in a timely manner and in
good unaltered condition all such documents.
10.7 The payment of any sums by the Owner under this Article 11 shall not constitute a
waiver of any claims for damages by the Owner for any breach of the Agreement by
the Commissioning Authority.
ARTICLE 11
DISPUTE RESOLUTION
11.1 If a dispute arises out of or related to this Agreement, or its alleged breach, and if
that dispute has not been settled through direct discussions within a reasonable
period, the parties to this Agreement agree to first endeavor to settle the dispute in
an amicable manner by submitting the dispute to a mutually acceptable mediator
under the Construction Industry Mediation Rules, before having recourse to a
judicial forum. Each party further agrees that it will endeavor to follow a similar
dispute resolution procedure to resolve any disputes against any third parties
(including the Contractor and Construction Program Manager) which arise out of or
relate to work.
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FAMFF-
11.2 Should mediation of disputes prove unsuccessful, the parties to this Agreement
agree that the matter(s) in question will be decided in the Superior Court of
Richmond County, Georgia. By signing this Agreement, the Commissioning
Authority waives any right to contest the venue in the Superior Court of Richmond
County, Georgia.
ARTICLE 12
SUCCESSORS /ASSIGNMENT
12.1 This Agreement shall inure to the benefit of and be binding on the heirs, successors,
assigns, trustees and personal representatives of the Owner, as well as the
permitted assigns and trustees of the Commissioning Authority.
12.2 The Commissioning Authority shall not assign, sublet or transfer its interest in this
Agreement without the written consent of the other, except that the Commissioning
Authority may assign accounts receivable to a commercial bank or financial
institution for securing loans, without prior approval of the Owner.
ARTICLE 13
OWNERSHIP OF DOCUMENTS /CONFIDENTIAL INFORMATION
13.1 Plans and Specifications are instruments of service and shall remain the property of
the Commissioning Authority except as provided for under paragraph 11.6 whether
the Project for which they are made is built or not. Said documents and
Commissioning concept are not to be used by the Commissioning Authority on other
projects. Then Commissioning Authority agrees to transmit a digital copy of all
plans, specifications and drawings, to Owner prior to project closeout. Said
electronic files and documents are not to be used by the Owner on projects at
separate facilities, without a written agreement with the Commissioning Authority,
except as provided for under paragraph 11.6.
13.2 In order for the Commissioning Authority to fulfill this Agreement effectively, it may
be necessary or desirable for the Owner to disclose to the Commissioning Authority
confidential and proprietary information and trade secrets pertaining to the
Owner's past, present and future activities. The Commissioning Authority hereby
agrees to treat any and all information gained by it as a result of the Services
performed hereunder as strictly confidential. The Commissioning Authority further
agrees that it will not disclose to anyone outside of the authorized Project team (i)
Owner's trade secrets during the period of this Agreement or thereafter or (ii)
Owner's confidential and proprietary information during the period of this
Agreement and thereafter for a period of 2 years.
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ARTICLE 14
ADDITIONAL PROVISIONS
14.1 This Agreement and its Exhibits and Attachments represent the entire and
integrated agreement between the Owner and the Commissioning Authority and
supersedes all prior negotiations, representations or agreements, either written or
oral. This Agreement may be amended only by written instrument signed by both
Owner and Commissioning Authority.
14.2 Unless otherwise specified, this Agreement shall be governed by the law of the State
of Georgia, U.S.A.
14.3 If any one or more of the provisions contained in this Agreement, for any reason,
are held to be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions thereof and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision
had never been contained herein.
14.4 Except where specifically stated otherwise, all periods of time stated in terms of
days shall be considered periods calculated in calendar days.
14.5 The headings or captions within this Agreement shall be deemed set forth in the
manner presented for the purposes of reference only and shall not control or
otherwise affect the information set forth therein or interpretation thereof.
14.6 For the purpose of this Agreement unless the context clearly indicates otherwise,
the singular includes the plural, and the plural includes the singular.
14.7 This Agreement may be executed in any number of counterparts, each of which shall
be deemed an original, and the counterparts shall constitute one and the same
instrument, which shall be sufficient evidence by any one thereof.
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In witness whereof, each individual executing this agreement acknowledges that he /she /it
is authorized to execute this agreement and further acknowledges the execution of this
agreement on the date signed below.
Owner:
Augusta, Georgia
By:
Ir . (Signature) (Seal)
b e - R e ha v r
(Name)
(Title)
530 Gree Street
(Street Address — No PO Box)
Augusta, GA 30901
(City, State, Zip)
Date of Signature
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Commissioning Authority
Total Systems Commissioning, Inc.
W inature) (Seal)
2 1'etlmre-fl f,)je)V47.0
(Name)
(Title)
(Street Address — No PO Box)
(City, State, Zip)
Date of Signature
18
�W
EXHIBIT A
PROJECT DOCUMENTS
The Commissioning Authority shall receive a copy of the Design Development Phase
Submittal and all subsequent Construction Document submittals.
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EXHIBIT B
MASTER SCHEDULE
Activity
Start
Preconstruction Phase
1 st Quarter
2010
Construction Notice to Proceed
1 st Quarter
2010
Construction Phase
2nd or 3rd
Quarter 2010
Date of Substantial Completion
March 2012
Punchlist / Closeout
March 2012
Final Completion
Aril 2012
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MI/
EXHIBIT C
SCOPE OF SERVICES
Basic Services The Commissioning Consultant will be expected to work with the selected Architect to
develop the final plans and specifications, including the requirements for Commissioning as described
herein and as necessary to meet Fundamental Commissioning of the Building Energy Systems, as
required for LEED -NC certification, version 2.2. No enhanced commissioning services will be required.
Work by the selected Commissioning Consultant will include review of preliminary and final design
documents, design of a Commissioning Plan, and development of commissioning specifications and
contract administration of the commissioning procedures performed during equipment installation, start-up
and personnel training, and any other services required to achieve the Fundamental Commissioning
Services required by LEED v 2.2. Disciplinary purview shall include mechanical engineering, electrical
engineering, plumbing and fire protection and other life safety system engineering and security systems.
Specific tasks included are:
1. Review A/E's Design Development Documents (plans and narratives) and submits written
comments to Owner, about proposed drawings, descriptive narratives and proposed systems and
materials.
2. For design phase, attend 60% CD Review and subsequent CD reviews with Owner and A/E (90 %,
100 %).
3. Produce Preliminary Commissioning Plan and submit to Owner for review
4. Review A/E's preliminary and final GMP Documents, including developed architectural and
engineering drawings, outline specifications and project schedule. Provide Owner with written
review comments.
5. Cooperate, coordinate and collaborate with A/E in resolving Design Intent issues.
6. Submit approved Preliminary Commissioning Plan and specifications to Owner, for inclusion with
GMP Documents.
7. Assist Owner and CM@ Risk firm with bidding, including attendance at Pre -Bid Meetings,
preparation of addenda, etc.
8. Review A/E's final construction plans and specifications, providing written review comments.
9. Produce Final Commissioning Plan and specifications, and submit to Owner for final review.
10. Perform Construction Phase Commissioning services, including periodic site visits normally
necessary to complete commissioning activities (logging, testing, etc.) and attend at least four (4)
Owner /Architect/CM coordination meetings to present commissioning status.
11. Field verification of installed equipment in static condition, including but not limited to air handlers,
pumps, boilers, chillers, ductwork, dampers, controls, valves, actuators, piping, drain downs,
power connections, water treatment systems, power systems, lightning protection systems, surge
protection, switchgear, transformers, panelboards, grounding, fire protection, smoke evacuation,
life safety and security systems.
12. Functional verification of equipment start-ups under controlled conditions.
13. Performance verification of interrelated systems running simultaneously, including but not limited
to all components listed under Item 14; in accordance with the approved Commissioning Plan.
14. Cooperate, coordinate and collaborate with the Contractor and A/E in resolving operational and
installation conditions that do not meet the Design Intent.
15. Documentation of Design Intent, operational parameters and operations and maintenance (O &
M) staff training.
16. Review of O & M Manuals
17. Preparation of an O & M staffing and preventative maintenance plan.
Preparation of a Commissioning Final Report, including documentation of:
*Design Intent
•Basis of design
*Completed pre - functional checklists
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*Completed functional checklists
*Test and balance reports
*System schematics
•Control strategies and set points
•Deficiency log
*Guidelines for energy accounting
I. DELIVERABLES
The Commissioning Consultant shall provide the following deliverables to the Owner's Representative, as
a minimum:
1. Written review comments (MS Word format) following review of the Design Consultant's Design
Development Documents.
2. Written review comments (MS Word format) following review of the Design Consultant's
preliminary GMP Documents.
3. Written review comments (MS Word format) following review of the Design Consultant's final
Construction Documents.
4. Six (6) copies of Preliminary Commissioning Plan.
5. Two (2) paper copies and one (1) MS Word copy of Commissioning Specification, in format
compatible with Design Consultant's Project Manual.
6. Ten (10) copies of Final Commissioning Plan
7. Three (3) copies of Inspection and Functional Performance Test Forms.
8. Four (4) copies of Final Commissioning Report
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