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TOTAL SYSTEMS COMMISSIONING INC SHERIFF'S OFFICE BUILDING
• STANDARD FORM OF CONTRACT FOR COMMISSIONING AUTHORITY SERVICES LUMP SUM BETWEEN AUGUSTA, GEORGIA (hereinafter referred to as the Owner) AND Total Systems Commissioning, Inc. (hereinafter referred to as the Commissioning Authority) Date: The Commissioning Authority Services required by this Contract are to be rendered for the following project, hereinafter indentified as the "Project" Project Name: Augusta, Georgia Sheriffs Office Building Project Address: 401 Walton Way City /State /Zip: Augusta, Georgia 30901 Project ID: RCSO General Project Description: Augusta, Georgia intends to construct a new 39,975 s.f. Sheriffs Office Building. The project will be located on a 2.88 acre property bond by Walton Way, Fourth Street and Taylor Street. This facility will house the Sheriffs Administration, Civil Division, and Criminal Investigations. The new facility will be LEED certified (minimum level) according to the current 3.0 version. AGREEMENT FOR COMMISSIONING AUTHORITY SERVICES TABLE OF CONTENTS Page Article 1 Definitions 1 Article 2 Relationship of the Parties 3 Article 3 Basic Services 4 Article 4 Compensation 6 Article 5 Period of Services 8 Article 6 Owner's Responsibilities 8 Article 7 Notices Error! Bookmark not defined. Article 8 Insurance 9 Article 9 Indemnification 10 Article 10 Termination of Agreement 11 Article 11 Dispute Resolution 13 Article 12 Successors /Assignment/Third Parties 13 Article 13 Ownership of Documents/ Confidential Information 14 Article 14 Additional Provisions 14 Exhibit A Project Documents Exhibit B Master Project Construction Schedule Exhibit C Scope of Services d/e( 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, Box 309 City /State /Zip: Atlanta, Georgia 30318 This Contract for Commissioning Authority 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 Commissioning Authority are: Owner's Representative (Augusta Office) Firm Name: Heery International, Inc. Name: Forrest W. White, CCM, LEED ®AP Address: 501 Greene Street, Suite 307 City /State /Zip: Augusta, Georgia 30901 E Mail Address: fwhite@augustaga.gov Phone: 706 - 821 -2886 Cell: 706 - 910 -3461 Fax: 706 -821 -2484 Architect's Representative Firm Name: Clark Patterson Lee Name: Scott Gordon, AIA, NCARB, LEED ®AP Address: 350 Town Center Ave, Suite 201 City /Address /Zip Suwanee, Georgia 30024 E Mail Address: sgordon @clarkpatterson.com Phone: 1- 800 - 274 -9000 Cell: 404 - 797 -4904 Fax: 770 - 831 -9243 Commissioning Authority's Representative Firm Name: Total Systems Commissioning, Inc. Name: Richard Dutro, CxA, CPD, LEED ®AP Address: 2020 Howell Mill Road, Suite C, Box 309 City /State /Zip: Atlanta, Georgia 30318 E Mail Address: ddutro @tscx.org Phones: 404 - 355 -9403 Cell: 404 - 457 -3768 Fax: 404 - 352 -0275 NOW, THEREFORE in consideration of 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: al( • ARTICLE 1 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 Augusta, Georgia Sheriffs Office Building 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 total construction, design and related services (excluding the Services rendered by the Commissioning Authority) 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 1 a/(2 Contract, Contract Forms, Bidding Requirements, etc., and the Owner- Construction Manager at Risk agreement, all of which shall be compatible and consistent with this Agreement and the Owner /Construction Program Manager Contract. 1.8 CONSTRUCTION MANAGER AT RISK (CM at Risk). The CM at Risk 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 "CM at Risk" means the Construction Manager at Risk 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. 2 94°1 1.14 DESIGN CONSULTANT. The architect /engineer hired by the Owner to design the new Sheriff's Office Building. 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 a Design Consultant, which includes related engineering, and agrees to communicate, through the Construction Program Manager, with the Design Consultant on matters pertaining to building systems, including mechanical, electrical, plumbing and exterior envelope, to the extent needed to support the Design Consultant'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 the 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, Design Consultant and CM at Risk 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, Design Consultant and CM at Risk 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, Design Consultant and CM at Risk 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 3 third party beneficiary of any contract between the Owner and the Design Consultant or the CM at Risk. The 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. 2.5 CONMMISSION 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 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 4 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 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 and a complete and properly functioning facility 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 design or specified materials. 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 drawings and specifications, 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. 5 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 Exhibit "A" is the Design Development Phase Submittal which defines the physical and environmental parameters for the Project and establishes the design objectives and criteria. No deviations from the design shall be allowed without written approval the Owner 3.3.3 Incorporated herein and made a part of this Agreement by reference as Exhibit "C" is the Project Master 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 %) Construction Phase: Four Commissioning status report meetings 3.4.2 The Commissioning Authority shall be responsible for scheduling and attending any and all meetings (logging, test...etc.) necessary to properly coordinate the commissioning effort and 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 Twenty Eight Thousand Eight Hundred Fifty and 00 /100's Dollars ($28,850.00). 4.1.3 The Basic Services Compensation stated in paragraph 4.1.1 includes all compensation and other payments due the Commissioning Authority (manpower, overhead, profit, direct costs, etc.) in the performance of the Basic Services. 6 4 2 4/ 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. Design Development Review Initial Plan 25% Construction Document Phase 40% Bidding and Negotiations Phase 45% Construction Phase (pre- Commissioning) 60% Commissioning Phase 90% Close -out and Turnover All Required Reports 95% Notifications from USGBC of LEED Certification 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 performed by the Commissioning Authority, 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 principles 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. 7 ARTICLE 5 PERIOD OF SERVICE 5.1 Unless earlier terminated as provided in Article 10 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 11); Professional Liability coverage (Article 8); Indemnification (Article 9); and Ownership of Documents /Confidential Information (Article 13) 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 architects /engineer's interim review submittals including Schematic Design, Design Development, 60% CD's and 90% CD's for use in performing the scope of work described herein. 6.4 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. 6.5 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. 8 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. 7.1.1 To Owner: Mr. Fred Russell Augusta Richmond County Administrator 530 Greene Street, Room 801 Augusta, GA 30911 7.1.2 To Commissioning Authority: Richard Dutro, CxA, CPD, LEED ®AP Total Systems Commissioning, Inc. 2020 Howell Mill Road Suite C, Box 309 Atlanta, Georgia 30318 7.1.3 With Copy to Construction Program Manager: Mr. Forrest W. White, CCM, LEED•AP Heery International, Inc. 501 Greene Street; Suite 307 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 there from; 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: 9 INSURANCE DESCRIPTION Minimum Required Coverage a. Worker's Compensation Statutory b. Public Liability $1,000,000 Combined Limit Bodily Injury: Each Person $100,000 Bodily Injury: Each Accident $200,000 Property Damage: Each Accident $100,000 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. 8.3 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. 8.4 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. 8.5 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 agents 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 there from and 10 UG / 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 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 agents or 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 Commissioning Authority, 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 11 /.. 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. 10.4 Upon termination of this Agreement by the Owner under paragraph 10.2 or 10.3 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 drawings, including the ownership and use of all drawings, 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 original drawings, specifications, documents and materials. 10.7 The payment of any sums by the Owner under this Article 10 shall not constitute a waiver of any claims for damages by the Owner for any breach of the Agreement by the Commissioning Authority. 12 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. 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 Owner, 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. 13 ARTICLE 13 OWNERSHIP OF DOCUMENTS /CONFIDENTIAL INFORMATION 13.1 Plans and Specifications are instruments of service are and shall remain the property of the Commissioning Authority except as provided for under paragraph 10.6 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. The 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 10.6. 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. 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 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. This Agreement executed the day and year first written above. OWNER COMMISSIONING AUTHORITY Augusta, Georgia Total Systems Commissioning, I c. c.9a7f. j 11 (Signature),, `"t a (Seal) * gnature) (Seal) 1,0;.11/40,, 111 A y o , ,r4 Ar 11(1 r /0e417,17-40 y, �' �i�" (Na (Name) 0,1 530 ,„ 9 -e St St , % 2020 Howell Mill Road, Suite C, Box 309 (Stree�dd o P Bo (Street Address — No- P.O. Box) Augusta, ' g , A Au � Atlanta, Georgia 30318 (City, State, Zip) (City, State, Zip) (Da // of gnature) (Date o Signature) 15 EXHIBIT A PROJECT DOCUMENTS The Commissioning Authority shall receive a copy of the Design Development Phase Submittal and all subsequent Construction Document submittals. 16 l( EXHIBIT B MASTER SCHEDULE & CRITICAL DATE SCHEDULE Exhibit B consists of the following, attached documents: 1. Augusta, Georgia Sheriffs Office Building — Master Schedule, 2. Augusta, Georgia Sheriffs Office Building — Critical Date Schedule, 1,/ EXHIBIT C SCOPE OF SERVICES 1. Basic Services: The Commissioning Consultant will be expected to work with the Architect to develop the final plan 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 3.2. 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, development of commissioning specifications, and contract administration of the commissioning procedures performed during equipment installation, startup, personnel training and any other services required to achieve the Fundamental Commissioning Services required by LEED V3.2. Disciplinary purview shall include mechanical engineering, electrical engineering, plumbing, fire protection and other life safety system engineering and security systems. Specific tasks included are: 1. Review A/E Design Development Documents (plans and narrative) and submit 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 the Owner and A/E (90% and 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 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 Construction Manager at Risk firm with bidding including attendance at Pre -Bid Meetings, preparation of addenda ... etc. 8. Review A/E's final construction plans and specifications and provide written review comments to the Owner. 9. Produce Final Commissioning Plan and specifications and submit to Owner for final review. ft( Y a fi 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, 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 11; in accordance with the approved Commissioning Plan • 14. Cooperate, coordinate and collaborate with the Construction Manager at Risk and the 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 (0 & M) staff training. 16. Review of 0 & M Manuals 17. Preparation of an 0 & M staffing and preventative maintenance plan. 18. Preparation of a Commissioning Final Report, including documentation of: • Design Intent • Basis of design • Completed pre - functional checklists • Completed functional checklists • Test and balance reports • • System schematics • Control strategies and set points • Deficiency log • Guidelines for energy accounting 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 Specifications 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 1 STATE FARM �-b, Certificate of Insurance _ , i This certifies that State Farm Fire and Casualty Company, Bloomington, Illinois 1�11i� - State Farm General Insurance Company, Bloomington, winds State Farm Fire and Casualty Company, Aurora, Ontario State Farm Florida Insurance Company, Winter Haven, Florida State Farm Lloyds, Dallas, Texas insures the following policyholder for the coverages indicated below. Policyholder Total Systems Commissioning Inc Address of policyholder 1710 Defoor Ave NW Ste 100, Atlanta, GA 30318 Location of operations Same Description of operations The policies listed below have been issued to the policyholder for the policy periods shown. The insurance described in these policies is subject to all the terms, exclusions, and conditions of those policies. The limits of liability shown may have been reduced by any paid claims. Policy Period Limits of Liability Polic Number Type of Insurance Effective Date � Expiration Date (at beginning of policy period) 91- BR- A206 -9 Comprehensive 11/01/09 11/01/11 BODILY INJURY AND Business Liability PROPERTY DAMAGE This insurance includes: Products - Completed Operations _ Y1 Contractual Liability Each Occurrence $ 2,000,000.00 Personal Injury Advertising Injury General Aggregate $ 4,000,000.00 Product - Completed $ Operations Aggregate Policy Period BODILY INJURY AND PROPERTY DAMAGE Polio Number EXCESS LIABILITY Effective Date ; Expiration Date Combined Sin • le Limit ® Umbrella Each Occurrence $ ® Other Aggregate $ Policy Period Effective Date i Expiration Date Part I - Workers Compensation - Statutory Workers' Compensation Part II - Employers Liability and Employers Liability Each Accident $ Disease - Each Employee $ Disease - Policy Limit $ Policy Period Limits of Liability Policy Number Type of insurance Effective Date i i Expiration Date (at beginning of policy period) 239 4915 -D30 -111 Auto 10/30/10 04/30/11 250,0001500,0001250,000 • THE CERTIFICATE OF INSURANCE IS NOT A CONTRACT OF INSURANCE AND NEITHER AFFIRMATIVELY NOR NEGATIVELY AMENDS, EXTENDS OR ALTERS THE COVERAGE APPROVED BY ANY POLICY DESCRIBED HEREIN. Name and Address of Certification Holder If any of the described policies are canceled before Also as additional insured: their expiration date, State Faun try to mail a written notice to the certificate holder days HEERY before cancellation. If we fail to mail such notice, no 501 GREENE ST. SUITE 307 obligation or liability will be imposed on State Farm or AUGUSTA , GA 30901 its agents or representatives. / / . Sign : - of . fr Representative Agent 10/28/2011 Title Date Harry R. Collins Agent Name Telephone Number (770) 410 - 1020 Agents Code StanT) Agent Code 1788 AFO Code F847 1001280 108399.9 03- 16-2008 Cert ID 791 AC CERTIFICATE OF LIABILITY INSURANCE DATF(MM,DD/Y, 10/27/2010 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Resurgens Risk Management ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 1201 Peachtree St #1730 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR Atlanta GA 30361 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. (404) 873 -1561 (404) 873 -1574 INSURERS AFFORDING COVERAGE NAIC # INSURED INSURER A: Admiral Insurance Company 24856 Total Systems Commissioning Inc. INSURER B: ACE Fire Underwriters Ins Co 20702 2020 Howell Mill Road, Suite C Box 309 INSURER C: Atlanta GA 30318 INSURER D: INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADD'L POLICY EFFECTIVE POLICY EXPIRATION LTR INSRD TYPE OF INSURANCE POLICY NUMBER DATE (MM /DD/YY) DATE (MM/DD/YY) LIMITS GENERAL LIABILITY EACH OCCURRENCE $ COMMERCIAL GENERAL LIABILITY PR S ( aENTED PREMISES (Ea occurence) $ CLAIMS MADE OCCUR MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG $ POLICY PRO- LOC IFCT AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT ANY AUTO (Ea accident) ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS (Per person) HIRED AUTOS BODILY INJURY $ NON -OWNED AUTOS (Per accident) PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ ANY AUTO OTHER THAN EA ACC $ AUTO ONLY: AGG $ EXCESS /UMBRELLA LIABILITY EACH OCCURRENCE $ OCCUR CLAIMS MADE AGGREGATE $ DEDUCTIBLE $ RETENTION $ $ B WORKERS COMPENSATION AND C46378817 10/10/2010 10/10/2011 WCSTATT- TORY LIMITS ER EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT $ 100,000 OFFICER/MEMBER EXCLUDED? E.L. DISEASE - EA EMPLOYE $ 100, 000 If yes, describe under SPECIAL PROVISIONS below E.L. DISEASE - POLICY LIMIT $ 500, 000 A OTHER Professional Liabili HO 00007692 -04 10/10/2010 10/10/2011 $1,000,000 Each Claim $1,000,000 Aggregate DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS RE: Augusta GA Sheriff's Office. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN Heery International, Inc. Attn: Mr. Forrest W. White NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL 501 Greene Street IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR Suite 307 REPRESENTATIVES. Augusta GA 30901 AUTHORIZED REPRESENTATIVE ^ �J 1 Mr. ACORD 25 (2001/08) © ACORD CORPORATION 1988 Page 1 of 2 10/27/2010 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001/08) Page 2 of 2