HomeMy WebLinkAboutWEINBERGER'S BUSINESS INTERIORS JUDICIAL CENTER STANDARD FORM OF CONTRACT
FOR GENERAL
CONSTRUCTION SERVICES
BETWEEN
AUGUSTA GEORGIA
(hereinafter referred to as the Owner)
AND
Weinberger's Business Interiors
(hereinafter referred to as the Contractor)
The General Construction Services required by this Contract are to be rendered for the
following project, hereinafter identified as the "Project ":
Project Name: Augusta Richmond County Judicial Center
Project Address: 735 James Brown Boulevard
City /State /Zip: Augusta Georgia 30901
General Project
Description: Furniture, Furnishings, and Equipment
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Table of Contents
Article 1 Representations
Article 2 Notices
Article 3 Definitions
Article 4 Relationship of the Parties
Article 5 Contract Documents
Article 6 Scope of Contractor's Project
Article 7 Compensation for Contractor
Article 8 Personnel, Subcontractors, and Suppliers
Article 9 Construction Schedule
Article 10 Bonds
Article 11 Contractor's Duties, Obligations and Responsibilities
Article 12 Goods, Products, and Materials
Article 13 Submittals
Article 14 Contractor's Quality Assurance
Article 15 Changes to the Project
Article 16 Claims and Liens
Article 17 Project Architect
Article 18 Substantial and Final Completion
Article 19 Contractor's Warranties and Guaranties
Article 20 Owner's Duties, Obligations and Responsibilities
Article 21 Liquidated Damages
Article 22 Concealed and Unforeseen Conditions
Article 23 Contractor's Records
Article 24 Proprietary Documents and Confidentiality
Article 25 Insurance Requirements
Article 26 Owner's Right to Stop Work
Article 27 Termination or Suspension of Contract
Article 28 Applicable Law and Dispute Resolution
Article 29 Damages and Remedies
Article 30 Miscellaneous Provisions
Article 31 Indemnification
Article 32 Contractor's Reviews and Evaluations
Article 33 Prohibition Against Contingent Fees
Article 34 Exhibits and Attachments
Article 35 Entire Agreement
Exhibit A Scope of Services
Exhibit B Provisional Project Schedule
Exhibit C Initial List of Drawings, Specifications, and Addendums
Exhibit D Insurance
Exhibit E Asbestos - Statement of Declaration
Exhibit F Non - Collusion Affidavit
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This Contract for General Construction Services is entered into between:
Owner
Owner's Name: Augusta, Georgia
Owner's Address: 530 Greene Street
City /State /Zip: Augusta Georgia 30911 -3999
and
Contractor
Contractor's Name: Weinberger's Business Interiors
Contractor's Address: 3137 Washington Road
City /State /Zip: Augusta Georgia 30907
This Contract for General Construction 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
Contractor are:
Owner's Representative
Firm Name: Heery International, Inc.
Name: Lindsay Johnson
Address: 501 Greene Street — Suite 307
City /State /Zip: Augusta Georgia 30911
Email Address: MLJohnson,augustaga.gov
Phone: 706 - 821 -2868 Cell: 706- 421 -6832 Fax: 706 - 821 -2484
Architect's Representative
Firm Name: Turner Associates Architects & Planners, Inc.
Name: Leslie Wright
Address: 280 Elizabeth Street NE - Suite A -110
City /State /Zip: Atlanta Georgia 30307
Email Address: Iwright0,taarchitects.com
Phone: 404 - 681 -3214 Cell: 770.313.1788 Fax: 404 - 880 -7914
Contractor's Representative
Firm Name: Weinberger's Business Interiors
Name: Frank Mulherin
Address: 3137 Washington Road
City /State /Zip: Augusta Georgia 30907
Email Address: fulherinaweinbergersfurniture .net
Phone: 706 - 860 -9494 Cell: 706- 414 -4922 Fax: 706 - 863 -8237
License # LCB199900579 FEIN # /SS# 58- 0250960
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 Contractor agree:
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ARTICLE 1
REPRESENTATIONS
By executing this Contract, the Contractor makes the following express representations
to the Owner:
1.1 The Contractor is professionally qualified to act as the Contractor for the
Project and is licensed to perform construction services by all public entities
having jurisdiction over the Contractor and the Project;
1.2 The Contractor has and shall maintain all necessary licenses, permits or other
authorizations necessary to act as the Contractor for the Project until the
Contractor's duties hereunder have been fully satisfied;
1.3 The Contractor has become familiar with the Project site and the local
conditions under which the Project is to be constructed;
1.4 The Contractor assumes full responsibility to the Owner for the negligent or
willful acts and omissions of the Contractor's employees, Subcontractor's or
others employed or retained by the Contractor in connection with the Project;
1.5 The Owner and Contractor each acknowledges that it has reviewed and
familiarized itself with this Contract for General Construction Services, and
agrees to be bound by the terms and conditions contained herein.
1.6 The Owner intends to construct the Project and is engaging the Contractor to
perform certain labor, supervision and services and provide certain equipment,
goods and materials for the Project.
1.7 The Owner and Contractor each acknowledges that it will act in good faith in
carrying out its duties and obligations.
1.8 The Owner's engagement of the Contractor is based upon the Contractor's
representations to the Owner that it is experienced in the type of labor and
services the Owner is engaging the Contractor to perform; is qualified, willing
and able to perform general construction services for the Project; and has the
expertise and ability to provide general construction services which will meet
the Owner's objectives and requirements, and which will comply with the
requirements of all governmental, public authorities and agencies having
jurisdiction over the Project.
1.9 The Owner has engaged an Architectural firm to perform architectural and /or
engineering services for the Project, including preparation of the Contract
Documents.
ARTICLE 2
NOTICES
2.1 Unless otherwise provided, all notices shall be in writing and considered duly
given if the original is hand delivered; delivered by facsimile; sent by U.S. Mail,
postage prepaid, or sent in a ".pdf" format via email. All notices shall be given
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to the authorized representatives at the addresses set forth above. Notices that
are hand delivered, delivered by facsimile, or sent by email shall be deemed
given the next business day following the date of delivery. Notices given by
U.S. Mail shall be deemed given as of the second business day following the
date of posting.
ARTICLE 3
DEFINITIONS
The following words and phrases shall for the purposes of this Agreement have the
following meanings:
3.1 Proiect - The Project shall be as described above.
3.2 Contractor - The Contractor is the person or entity which enters into an
agreement with the Owner to perform the construction services for 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
Owner's Representative and the Architect.
3.3 Compensation - Compensation shall be the lump sum fee designated in Article
7.1 to be paid by the Owner to the Contractor in connection with the
performance of the Services by the Contractor.
3.4 Change Order - shall mean a written order to the Contractor executed by the
Owner, and the Architect, after execution of this Contract, directing a change in
the Project and may include a change in the Contract Amount or the time for
the Contractor's performance, or any combination thereof.
3.5 Site - The geographical location of a Project, defined by legal boundary lines,
and the location characteristics including, but not limited to, grades and lines of
streets, alleys, pavements and adjoining structures, rights -of -way, restrictions,
easements, encroachments, zoning, deed restrictions, existing buildings and
improvements, and service and utility lines.
3.6 Work - Any and all construction machinery, documents, equipment, facilities,
fixtures, furnishings, goods, heat, items, labor, licenses, management,
materials, permits, products, services, supervision, supplies, systems, taxes,
testing, tools, utilities, transportation, vehicles, and water, required to be
performed or supplied and /or necessary for proper execution and completion of
the Project, or some portion thereof, whether or not incorporated or to be
incorporated into the Project.
ARTICLE 4
RELATIONSHIP OF THE PARTIES
4.1 The Architect - The Architect's performance of services shall be as an Architect
consultant to the Owner to carry out the activities of Project design and
construction administration and to provide the technical documents and
supervision to achieve the Owner's Project objectives. The Architect will be
responsible for dealing with the Contractor on all design and technical matters,
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and will administer this Contract for General Construction Services. Unless
otherwise directed by the Owner, the Owner and the Contractor shall
communicate with each other in the first instance through the Architect. The
Owner's instructions to the General Contractor will be issued through the
Architect.
4.2 Owner Representation - The Owner shall employ and assign a Project
Manager from Heery International, Inc. to serve as the Owner's Representative.
The Owner's Representative has no design or construction responsibilities of
any nature. None of the activities of the Owner's Representative supplant or
conflict with the construction activities, budget or any other services and
responsibilities customarily furnished by the Contractor or their Subcontractors
in accordance with generally accepted construction practices except as
otherwise modified by this Agreement. The Contractor shall fully cooperate
with the Owner's Representative. Instructions by the Contractor to the
Architect relating to services performed by the Contractor will be issued or
made by or through and in accordance with procedural, organizational, and
documentation standards established by the Owner's Representative.
Communications and submittals of the Contractor to the Architect shall be in
writing and issued or made in accordance with similar procedural and
documentation standards established by the Owner's Representative. The
Owner's Representative shall have the authority to establish procedures,
consistent with this Agreement, to be followed by the Architect and Contractor
and to conduct periodic meetings to be attended by the Architect, and their
subconsultants, and the Contractor, and their Subcontractors throughout the
duration of this Agreement.
4.3 Other Consultants - The Owner may provide drawings, consultation,
recommendations, suggestions, data and /or other information relating to the
Project from other consultants under separate contract with the Owner,
including but not limited to: Land Surveying Consultant, Geotechnical
Consultant, and /or Materials Testing Consultant.
4.4 The Contractor —
4.4.1 The Contractor shall, in consultation with the Owner, the Architect, the Owner's
Representatives, and their Subcontractors, endeavor to develop, implement
and maintain a spirit of cooperation, collegiality, and open communication
among the parties so that the goals and objectives of each are clearly
understood, potential problems are resolved promptly, and, upon completion,
the Project is deemed a success by all parties.
4.4.2 The Contractor shall provide the Owner with a list of the proposed key project
personnel of the Contractor and its Subcontractors to be assigned to the
Project. The key project personnel are defined as the Project Principal, Project
Manager, and Superintendent. This list shall include such information on the
Contractor background of each of the assigned personnel as may be requested
by the Owner, through the Owner's Representative. 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
Contractor's (or its subcontractors, if applicable) employ.
4.4.3 If required by the Owner's Representative, all agents and Employees of the
Contractor and their Subcontractors shall wear identification badges provided
by the Contractor at all times that they are on the Owner's property. The
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identification badge shall at a minimum display the company name and
telephone number and the employee name.
4.4.4 The Contractor understands and agrees that should the Owner's
Representative or other Consultant's provide the Contractor with any
estimating or scheduling assistance, cost or time control recommendations or
other consultation, recommendations or suggestions, any or all such activities
on the part of the Owner's Representative, Consultant, or any other
representative of the Owner shall in no way relieve the Contractor of the
responsibility of fulfilling its obligations and responsibilities under this
Agreement.
ARTICLE 5
CONTRACT DOCUMENTS
5.1 The "Contract for General Construction Services" is comprised of the following
documents:
5.1.1 This Agreement, including all attached documents, appendices and addenda;
5.1.2 Special conditions, if any;
5.1.3 Proposal submitted by the Contractor and accepted by the Owner; including
the Request for Proposal.
5.1.4 The Drawings, Specifications, and all Addenda now existing or issued
hereafter, (see Exhibit E for Initial List of Drawings, Specifications and
Addenda);
5.1.5 Any amendments or addenda executed by the Owner and the Contractor
hereafter;
5.1.6 Approved Change Order(s) or field orders; and
5.1.7 Additional documents listed hereafter, if any:
5.2 Documents not included or expressly contemplated in this Article 5 do not, and
shall not, form any part of this Contract for General Construction Services.
5.3 The Owner shall furnish the Contractor with 0 sets of drawings and
specifications and one CD -ROM with drawing and specification files in pdf
format. Any additional copies of the Contract Documents required by the
Contractor for execution of the Project shall be made by the Contractor at its
cost and expense from the reproducible sets, or electronic media furnished by
the Owner.
5.4 The Owner has requested that the Architect prepare documents for the Project,
including the plans and specifications for the Project, which are to be complete,
accurate, coordinated, and adequate for bidding, negotiating and constructing
the Project. However, the Owner makes no representation or warranty of any
nature whatsoever to the Contractor concerning such documents. The
Contractor hereby acknowledges and represents that it has not relied, and
does not and will not rely, upon any representations or warranties by the Owner
concerning such documents, as no such representations or warranties have
been or are hereby made.
5.4.1 In the event of any conflict, discrepancy, or inconsistency among any of the
documents which make up this Contract for General Construction Services, the
following shall control:
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5.4.1.1 As between figures given on plans and scaled measurements, the figures shall
govern;
5.4.1.2 As between large -scale plans and small -scale plans, the large -scale plans shall
govern;
5.4.1.3 As between plans and specifications, the requirements of the specifications
shall govern;
5.4.1.4 As between this document and the plans, specifications, general conditions or
general requirements, this document shall govern.
5.4.1.5 Shop drawings and other submittals from the Contractor or its Subcontractors
and Suppliers do not constitute a part of this Contract for General Construction
Services.
ARTICLE 6
SCOPE OF PROJECT
6.1 The Contractor shall provide all management, supervision, financing, goods,
products, materials, equipment, systems, labor, services, permits, licenses,
construction machinery, water, heat, utilities, transportation and any and all
other facilities necessary for the proper execution and completion of the scope
of the Project in accordance with all of the terms and conditions of this Contract
for General Construction Services. The general nature of the scope of Project
that the Contractor is to complete is briefly described as follows:
6.1.1 See Exhibit A — Scope of Work
ARTICLE 7
COMPENSATION FOR CONTRACTOR
7.1 The Owner shall pay the Contractor, as full and complete payment for the
Contractor's timely and complete performance of its obligations hereunder, the
fixed contract amount of One Million Six Hundred Two Thousand One Hundred
Ninety Three Dollars and Forty Six Cents ($1,602,193.46). The amount set
forth above is the Contract Amount and includes the aggregate amount of all
allowances.
7.2 Within fourteen (14) calendar days after execution of this Contract for General
Construction Services, the Contractor shall prepare and present to the Owner's
Representative and the Architect, the Contractor's Cost Loaded Schedule as
described in the Specifications. The Contractor's Cost Loaded Schedule shall
be presented in the format, and with such detail and supporting information,
specified in this Contract for Construction Services. The Contractor shall not
artificially inflate any element of its Cost Loaded Schedule. Upon the
Architect's acceptance, the Cost Loaded Schedule shall be used as back -up to
process and pay the Contractor's requests for payment. The Cost Loaded
Schedule shall not be changed without written change order authorized by the
Owner.
7.3 Within thirty (30) calendar days after receipt by the Owner of the Contractor's
approved invoice, the Owner shall pay to the Contractor ninety percent (90 %)
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of the total amount approved by the Architect, withholding the balance as
retainage, unless there is a dispute about the amount of compensation due the
Contractor. The thirty (30) calendar days after receipt of the approved invoice
is defined as the Payment Date.
7.4 If any portion of the Contract Amount is determined by the application of unit
prices, the number of units contained in the Contractor's Cost Loaded
Schedule is an estimate only, and the compensation to the Contractor shall be
determined by the actual number of units incorporated in, or required by, the
Project.
7.5 At least every thirty (30) calendar days after commencement of performance,
but no more frequently than once a month, the Contractor shall submit invoices
to the Architect requesting payment for labor and services rendered during the
preceding thirty (30) calendar days. Each invoice shall contain such detail and
be backed up with whatever supporting information the Architect requests and
shall at a minimum state:
7.5.1 The total Contract Amount;
7.5.2 The amount due for labor, materials and equipment incorporated into the
Project; and with respect to amounts invoiced for materials or equipment
necessary for the Project and properly stored at the Site (or elsewhere if offsite
storage is approved in writing by the Owner), be accompanied by written proof
that the Owner has title to such materials or equipment and that such material
and equipment is fully insured against loss or damage;
7.5.3 A breakdown of the various phases or parts of the Project as related to the
Contract Amount;
7.5.4 The value of the various phases or parts of the Project actually performed;
7.5.5 Previously invoiced amounts and credit payments made;
7.5.6 The total amount due, less the amount of retainage;
7.5.7 And shall also have attached such lien waivers (partial or final) and other
documentation verifying the Contractor's payment to subcontractors and
suppliers.
7.6 The Architect will review the Contractor's applications for payment, including
such accompanying data, information and schedules as the Contract for
General Construction Services requires, to determine the amounts due to the
Contractor and, based upon such review, together with its inspections of the
Project, shall authorize payment by the Owner to the Contractor in writing.
Such authorization will constitute the Architect's certification to the Owner that:
7.6.1 The Project described in the Contractor's invoice has progressed to the level
indicated and has been performed in accordance with the Contract for General
Construction Services;
7.6.2 All necessary and appropriate lien waivers have been submitted;
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7.6.3 The amount requested is currently due and owing to the Contractor.
7.7 The Architect's approval of the Contractor's invoice shall not preclude the
Owner from exercising any of its remedies under this Contract for General
Construction Services. In the event of a dispute, payment shall be made on or
before the Payment Date for amounts not in dispute, subject to any reductions
made by the Owner. The Owner shall have the right to refuse to make
payment and, if necessary, may demand the return of a portion or all of the
amount previously paid to the Contractor due to:
7.7.1 The Contractor's failure to perform the work required in compliance with the
requirements of this Contract for General Construction Services or any other
agreement between the parties;
7.7.2 The Contractor's failure to correctly and accurately represent the Project
performed in a payment request, or otherwise;
7.7.3 The Contractor's performance of the Project at a rate or in a manner that, in the
Owner's opinion, is likely to result in the Project or any portion of the Project
being inexcusably delayed;
7.7.4 The Contractor's failure to use funds previously paid the Contractor by the
Owner, to pay the Contractor's Project - related obligations including, but not
limited to, the Contractor's subcontractors, materialmen, and suppliers;
7.7.5 Claims made, or likely to be made, against the Owner or its property;
7.7.6 Loss caused by the Contractor or the Contractor's subcontractors, or suppliers;
7.7.7 The Contractor's failure or refusal to perform any of its obligations to the
Owner.
7.8 If after thirty (30) calendar days from the Payment Date the Owner, without
cause or basis hereunder, fails to pay the Contractor any amounts then due
and payable to the Contractor, the Contractor shall have the right, in addition to
all other rights and remedies contained herein, to cease performance of work
on the Project until receipt of proper payment after first providing fourteen (14)
calendar days written notice to the Owner of its intent to cease work.
7.9 All prior payments, whether based on estimates or otherwise, may be corrected
and adjusted in any subsequent payment and shall be corrected and adjusted
in the final an a ment. In the event that invoice contains a defect or
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impropriety which would prevent payment by the Payment Date, the Owner
shall notify the Contractor in writing of such defect or impropriety. Any disputed
amounts determined by the Owner to be payable to the Contractor shall be due
thirty (30) calendar days from the date that the dispute is resolved.
7.10 Interest shall not accrue on amounts owed by the Owner to the Contractor
which remain unpaid thirty (30) calendar days following the Payment Date, as
defined in Article 7.3.
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7.10.1 No interest shall accrue when payment is delayed because of a dispute
between the Owner and the Contractor, or a dispute as to the accuracy or
completeness of any request for payment received. This exception to the
accrual of interest shall apply only to that portion of a delayed payment which is
actually the subject of the dispute and shall apply only for the duration of such
disagreement. Nor shall interest accrue on retainage which is withheld to
assure performance of this Contract for General Construction Services.
7.11 The Contractor expressly warrants and guarantees to the Owner that:
7.11.1 Title to all goods, products, materials, equipment and systems covered by an
invoice will pass to the Owner either by incorporation into the Project, or upon
receipt of payment by the Contractor, whichever occurs first;
7.11.2 All goods, products, materials, equipment and systems covered by an invoice
are free and clear of liens, claims, security interests or encumbrances;
7.11.3 No goods, products, materials, equipment or systems covered by an invoice
have been acquired by the Contractor, or its subcontractors or suppliers,
subject to an agreement under which an interest therein or an encumbrance
thereon is retained by the seller or otherwise imposed by the Contractor, or its
subcontractors or suppliers.
7.12 The signature of the Contractor on any invoice constitutes the Contractor's
certification to the Owner that the Contractor's services listed in the invoice
have progressed to the level indicated and have been performed as required
by this Contract for General Construction Services; the Contractor has paid its
subcontractors and suppliers their proportional share of all previous payments
received from the Owner; the amount requested is currently due and owing.
7.13 The Contractor shall incorporate into the Contract Amount, and pay, all sales,
consumer, use and similar taxes for goods, products, materials, equipment and
systems incorporated into the Project which were legally required at the time of
execution of this Contract for General Construction Services, whether or not yet
effective or merely scheduled to go into effect. The Contractor shall secure,
defend, protect, hold harmless, and indemnify the Owner from and against any
and all liability, loss, claims, demands, suits, costs, fees and expenses
(including actual fees and expenses of attorneys, expert witnesses, and other
consultants) relating to any taxes assessed or imposed upon, incurred by or
asserted against the Owner by any taxing authority with respect to such taxes.
The Contractor shall cooperate with and assist the Owner in securing qualified
refunds of any sales or use tax paid by the Owner or Contractor on goods,
products, materials, equipment or systems. Any refund secured shall be paid
to the Owner.
7.14 Upon receipt of payment from the Owner, the Contractor shall pay each of its
subcontractors and suppliers out of the amount received by the Contractor on
account of such subcontractor's or supplier's portion of the work, the amount to
which each entity is entitled, reflecting percentages actually retained from
payments to the Contractor on account of such entity's portion of the work.
The Owner shall have no obligation to pay, and shall not be responsible for
payments to, the Contractor's subcontractors or suppliers. However, the
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Owner reserves the right, but has no duty, to make payment jointly to the
Contractor and to any of its subcontractors or suppliers in the event that the
Owner becomes aware that the Contractor fails to pay or unreasonably
withholds payment from one or more of those entities. Such joint check
procedure, if employed by the Owner, shall create no rights in favor of any
person or entity beyond the right of the named payees to payment of the check
and shall not be deemed to commit the Owner to repeat the procedure in the
future.
7.15 Prior to being entitled to receive final payment, the Contractor must achieve
Final Completion as described in Article 18. The Owner shall, subject to its
rights set forth above in this Article, make final payment of all sums due the
Contractor within thirty (30) calendar days from the Architect's execution of a
final approval for payment.
ARTICLE 8
PERSONNEL, SUBCONTRACTORS, AND SUPPLIERS
8.1 One of the criteria that were used to select the Contractor to perform the work
under this contract was based on the proposed personnel to be assigned to the
Project. The Contractor shall promptly inform the Owner in writing of any
proposed replacements (before the replacements are made), along with the
reasons for, and the names and qualifications of proposed replacements. The
Owner shall have the right to reject any proposed replacement.
8.2 The Contractor shall not enter into any agreement with any Subcontractor or
Supplier to which the Owner raises a reasonable, timely objection; and shall
promptly inform the Owner in writing of any proposed replacements, the
reasons therefor, and the name(s) and qualification(s) of proposed
replacements (before the replacements are made). The Owner shall have the
right to reject any proposed replacement.
8.3 The Owner shall prepare and submit to the Contractor a list of Owner's
Consultants, including the name and general duties for each consultant,
retained by the Owner to provide services with respect to the Project. The
Owner reserves the right to engage any other consultants who it may deem
necessary.
8.4 The Contractor shall staff the Project with qualified and designated individuals
and entities responsible for its obligations and performance.
8.4.1 The Contractor's Representative will serve as its primary communication
contact with the Architect.
8.4.2 The Contractor shall employ persons skilled in the tasks assigned to them and
shall contract with subcontractors and suppliers skilled in the tasks assigned to
them and capable of working harmoniously with all trades, crafts and other
individuals on the Project. The Contractor shall use its best efforts to minimize
the likelihood of any strike, work stoppage or other labor disturbance.
8.4.3 The Contractor shall immediately remove from the Site, for the duration of the
Project, any person making an inappropriate religious, racial, sexual or ethnic
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comment, statement or gesture toward any other individual.
8.4.4 The Contractor shall immediately remove from the Site, for the duration of the
Project, any person who is incompetent, careless, or not working in harmony.
8.4.5 The Contractor shall be responsible to the Owner for the acts and omissions of
its agents and employees, consultants, subcontractors and suppliers.
8.4.6 The Contractor shall make every effort to limit the eating and consumption of
foods to designated areas to avoid the infiltration of rodents and insects in the
building.
8.4.7 The Contractor shall limit smoking to areas outside the building. Smoking
inside the building is prohibited. If anyone is caught smoking inside the
building may be asked to leave the premises. Repeated violations under this
clause will be cause for permanent removal of the offending personnel from the
Project.
8.5 The Contractor shall enter into written contracts with its subcontractors and
suppliers, and those written contracts shall be consistent with this Contract for
General Construction Services. It is the intent of the Owner and the Contractor
that the obligations of the Contractor's subcontractors and suppliers inure to
the benefit of the Owner and the Contractor, and that the Owner be a third -
party beneficiary of the Contractor's agreements with its subcontractors and
suppliers.
8.5.1 The Contractor shall make available to each subcontractor and supplier, prior
to the execution of written contracts with any of them, a copy of the pertinent
portions of this Contract for General Construction Services, including those
portions of the Contract Documents to which the subcontractor or supplier will
be bound, and shall require that each subcontractor and supplier shall similarly
make copies of applicable parts of such documents available to its respective
subcontractors and suppliers.
8.5.2 The Contractor shall include in its written contracts with its subcontractors and
suppliers a provision which contains the acknowledgment and agreement of
the subcontractor or supplier that it has received and reviewed the applicable
terms, conditions and requirements of this Contract for General Construction
Services that are included by reference in its written contract with the
Contractor, and that it will abide by those terms, conditions and requirements.
8.5.3 The Contractor's written contracts with its subcontractors and suppliers shall
preserve and protect the rights of the Owner and include the acknowledgment
and agreement of each subcontractor or supplier that the Owner is a third -party
beneficiary of the contract. The Contractor's agreements with its subcontractors
and suppliers shall require that in the event of default under, or termination of,
this Contract for General Construction Services, and upon request of the
Owner, the Contractor's subcontractors and suppliers will perform services for
the Owner.
8.6 The Contractor shall promptly resolve claims, complaints, labor disputes and
disputes over assignment of Project tasks by and among its subcontractors and
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suppliers.
ARTICLE 9
CONSTRUCTION SCHEDULE
9.1 The Contractor shall commence construction of the scope of the Project within
ten (10) days after receipt of the Notice -to- Proceed.
9.2 The Contractor shall accomplish Substantial Completion of the scope of the
Project within 210 calendar days following the date of the Notice to Proceed.
9.3 The Contractor shall accomplish Final Completion of the scope of the Project
thirty (30) days after the date of Substantial Completion as indicated in Article
9.2 above.
9.4 The Contractor shall, within fourteen (14) calendar days following receipt of the
Notice to Proceed, submit to the Owner an Interim Project Construction
Schedule (as defined in the Project Specifications), in Critical Path Method
format (or CPM), for his construction /erection scope of Project for the first 90-
days of the Project, compatible in Primavera P3 format. The Owner will review
the Contractor's Interim Project Construction Schedule to determine if it meets
the specific requirements of the Provisional Project Schedule which is defined
in Exhibit B. The Contractor shall, within sixty (60) calendar days following the
receipt of the Notice -to- Proceed, submit to the Owner the Project Construction
Schedule (as defined in the Project Specifications), in the same format
indicated above. The Owner will review the Contractor's Project Construction
Schedule to determine if it meets the specific requirements of the Provisional
Project Schedule.
9.5 The Construction Schedule shall include all pertinent dates and periods for
timely completion of the Project.
9.5.1 The Construction Schedule shall include and properly coordinate dates for
performance of all divisions of the work, including completion of off -Site
requirements and tasks, so that the work can be completed in a timely and
orderly fashion consistent with the required dates of Substantial Completion
and Final Completion.
9.5.2 The Construction Schedule shall include the Date of the Notice -to- Proceed, the
date of Substantial Completion and the date of Final Completion; any guideline
and milestone dates required by the Owner; any applicable subcontractor and
supplier sub - schedules; a submittal schedule which allows sufficient time for
review of documents and submittals; the complete sequence of construction by
activity, with dates for beginning and completion of each element of
construction; and required approval dates.
9.5.3 By reviewing the Construction Schedule, the Owner and Architect do not
assume any of the Contractor's responsibility that the Construction Schedule
be coordinated or complete; or for timely and orderly completion by the
required dates of Substantial Completion, Final Completion and any milestone
dates required by the Owner.
9.5.4 The Contractor shall review, on a weekly basis, the actual status of the Project
against the Construction Schedule. The Contractor shall discuss the status of
the Project weekly with the Architect, so that proper overall management may
be provided.
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9.6 If at any time the Contractor anticipates that performance of the work will be
delayed or in fact has been delayed, the Contractor shall immediately notify the
Architect of the probable cause of and effect from the delay, and possible
alternatives to minimize the delay; and take all corrective actions reasonably
necessary to deliver the Project by the required dates of Substantial
Completion and Final Completion, and other milestone dates required by the
Owner.
9.7 The Contractor shall determine and promptly notify the Architect in writing
when it believes adjustments to the required dates of Substantial Completion or
Final Completion, or other milestone dates required by the Owner, are
necessary, but no such adjustments shall be effective unless approved in
writing by the Owner.
9.8 The Contractor may attempt to achieve Substantial Completion before the
required date of Substantial Completion. However, such planned early
completion shall be for the Contractor's sole convenience and shall not create
any additional Contractor rights or Owner obligations under this Contract for
General Construction Services, nor shall it change the required dates of
Substantial Completion or Final Completion. The Owner shall not pay the
Contractor any additional compensation for achievement of Substantial
Completion or Final Completion prior to the required dates nor will the Owner
owe the Contractor any compensation should the Owner cause the Contractor
not to achieve Substantial Completion earlier than the required date of
Substantial Completion or Final Completion earlier than the required date of
Final Completion.
9.9 The Contractor may propose modifications to the required dates of Substantial
Completion or Final Completion. The Owner may, but is not required to, accept
the Contractor's proposal. Modifications to the required dates of Substantial
Completion or Final Completion shall be accomplished only by duly authorized
and accepted change order stating the new dates and confirmation that all
references in this Contract for General Construction Services to the required
dates of Substantial Completion or Final Completion shall thereafter refer to the
dates as modified, and all rights and obligations, including the Contractor's
liability for actual damages, delay damages and liquidated damages, shall be
determined in relation to the dates as modified.
9.10 The Contractor shall provide documents to the Architect for review in
accordance with the schedule requirements and with sufficient lead time to
allow the Architects reasonable time for review.
ARTICLE 10
BONDS
10.1 The Contractor shall provide payment and performance bonds. The amount of
the premiums for such bonds shall be included in the Construction Price. Each
bond shall:
10.1.1 Be in a form approved by the Owner;
10.1.2 Incorporate by reference the terms of this Contract For General Construction
Services;
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10.1.3 Be executed by a company certified by the Secretary of the United States
Department of Treasury pursuant to the Act of July 30, 1947 (61 Stat. 646, as
amended; 6 U.S.C. 6 -13);
10.1.4 Be executed by a company licensed and authorized to do business in the state
of Georgia;
10.1.5 Be accompanied by a power of attorney certifying that the persons executing
the bond have the authority to do so.
10.2 The Contractor shall deliver any required bonds and powers of attorney to the
Owner prior to commencement of the work.
10.3 The bonding company that issues the bonds must be registered with The
Surety Association of America (SAA).
ARTICLE 11
CONTRACTOR'S DUTIES, OBLIGATIONS AND RESPONSIBILITIES
11.1 The Contractor shall perform and complete its obligations under this Contract
for General Construction Services using its best skill and attention, and
covenants with the Owner, to furnish management, supervision, coordination,
labor and services which expeditiously, economically and properly completes
the work in the manner most consistent with the Owner's interests and
objectives; which comply with the Contract Documents and this Contract for
General Construction Services; and in accordance with the highest standards
currently practiced by persons and entities performing or providing
management, supervision, coordination, labor and services on projects similar
in size, complexity and cost to this Project.
11.1.1 The Contractor shall not be required to provide Architectural services which
constitute the practice of architecture or engineering.
11.1.2 All services rendered by the Contractor for the Project shall be performed by or
under the immediate supervision of persons possessing expertise in the
discipline of the service being rendered.
11.1.3 The Contractor shall cooperate and communicate with the Owner and all other
persons or entities as required for satisfactory completion of the Project.
11.1.4 The Contractor understands and acknowledges that the Project referred to in
this Contract for General Construction Services may be only part of the Project
and that the Project may include the construction of other structures or other
construction activities on the same Site. The Contractor shall conduct all its
activities so as not to interfere with the construction of, or operations within or
from, other structures on the Site.
11.1.5 The Contractor shall not damage, endanger, compromise or destroy any part of
the Project or the Site, including by way of example and not limitation, work
being performed by others on the Site, monuments, stakes, benchmarks and
other survey points, utility services, and existing features or structures on the
Site. Should the Contractor damage, compromise or destroy any part of the
Project or the Site, the Contractor shall be fully and exclusively responsible for
and bear all costs associated therewith for any repairs required to bring the
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condition back to the original state prior to when the damage occurred.
11.2 The Contractor shall:
11.2.1 Comply with all applicable laws, statutes, building codes, rules, regulations and
lawful orders of all governmental, public authorities and agencies having
jurisdiction over the Project;
11.2.2 Prepare and file documents required to obtain, and shall obtain, all necessary
approvals and permits, including building permits, of all governmental
authorities having jurisdiction over the Project;
11.2.3 Give all notices required of it by governmental authorities relating to the
Project.
11.3 Safety shall be a prime concern of the Contractor at all times. The Contractor
shall be solely responsible for and have control over the means, methods,
techniques, sequences and procedures for coordinating and constructing the
Project, including Site safety and safety precautions and programs.
11.3.1 The Contractor shall, concurrently with performance, maintain detailed records
of safety related activities on the Site.
11.4 The Contractor shall maintain at the Site one copy of all drawings,
specifications, addenda, approved shop drawings, change orders, submittals,
and other modifications in good order and accurately marked depicting all
changes as they occur during construction. The as -built drawings shall be
available at all times to the Owner, the Architect, the Owner's Representative,
Owner's Consultants, and quality control and testing agency personnel. The
drawings shall be neatly and clearly marked in color during construction to
record all variations made during construction, and the Contractor shall include
such supplementary notes and details necessary to clearly and accurately
represent as -built construction.
11.5 The Contractor shall not by any means:
11.5.1 Induce any person or entity employed in the construction of the Project to give
up any part of the compensation to which that person or entity is entitled;
11.5.2 Confer on any governmental, public official having any authority or influence
over the Project, any payment, loan, subscription, advance, deposit of money,
services or anything of value, present or promised;
11.5.3 Offer nor accept any bribes or kick -backs in connection with the Project from or
to any individual or entity, including any of its trade contractors, subcontractors,
consultants, suppliers or manufacturers of Project goods and materials;
11.5.4 Without the express written permission of the Owner, call for or by exclusion
require or recommend the use of any subcontractor, consultant, product,
material, equipment, system, process or procedure in which the Contractor has
a direct or indirect proprietary interest.
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11.6 The Contractor shall develop and implement a quality management program to
insure quality construction. Unless otherwise specified in this Contract for
General Construction Services, the Owner shall select the quality control and
testing agencies and pay for the cost of specified measures and tests required
by the Contract Documents. The Contractor shall coordinate all tests and
inspections required by the Contract Documents, and the Contractor shall
arrange for tests and inspections to be conducted as necessary to avoid any
interference with the progress of work. No claims for extension of time or extra
costs will be allowed on account of any testing, retesting, inspection, re-
inspection, or rejection of work when defective or deficient work is found.
11.7 The Contractor shall immediately notify the Architect, both orally and in writing,
of the nature and details of all incidents which may adversely affect the quality
or progress of the work including, but not limited to, union jurisdictional
disputes, accidents, delays, damages to work and other significant
occurrences.
11.8 The Contractor shall immediately notify the Architect, both orally and in writing,
of the presence and location of any physical evidence of, or information
regarding, environmental contamination on the Site (including but not limited to
Hazardous Substances and petroleum releases) of which it becomes, or
reasonably should have become, aware. If the Contractor encounters
environmental contamination (including but not limited to Hazardous
Substances and petroleum releases), the Contractor shall immediately stop
performance of work or that portion of the work affected by or affecting such
contamination; secure the contaminated area against intrusion; not disturb or
remove the contamination; not proceed, or allow any subcontractor or supplier
to proceed, with any work or other activities in the area affected by such
contamination until directed to do so by the Architect; and take any other steps
necessary to protect life and health.
11.9 The Contractor shall perform the work so as not to interrupt any operations of
the Owner on the Site.
11.9.1 The Contractor understands and acknowledges that the Owner may need
access to or use of certain areas of the Site or Project prior to the Contractor's
achievement of Substantial Completion, and that such occupancy, access or
use shall not constitute the Owner's acceptance of any Project.
11.9.2 The Contractor shall not enter any Owner - occupied area of the Site or Project
unless first approved and scheduled by the Owner. The Contractor
understands and acknowledges that the Owner may incur damages if the
Owner's operations on the Site are interrupted or impaired as a result of the
work.
11.9.3 The Contractor shall afford the Owner's own forces, and other consultants,
trade contractors, subcontractors and suppliers, access to the Site for
performance of their activities, and shall connect and coordinate its
construction and operations with theirs as required by the Contract Documents.
11.10 The Contractor shall, through the Architect, schedule and coordinate all
equipment and systems start-ups within its scope of the Project.
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11.10.1 The Contractor shall provide the Owner with operation and maintenance
manuals and other operational documentation not less than twenty-eight (28)
calendar days prior to the required date of Substantial Completion to allow
adequate time for training prior to commissioning and the Owner's occupancy
of the Project.
11.10.2 The Contractor shall meet with the Owner's personnel not less than twenty -
eight (28) calendar days prior to the required date of Substantial Completion to
familiarize and train them with respect to maintenance and use of the Project.
The appropriate personnel will attend and assist with such familiarization and
training.
11.11 The Contractor shall resolve all questions concerning the Contract Documents
with the Architect.
11.12 The Contractor shall provide water, gas and electrical services at the Site. The
Contractor shall be responsible for providing and paying for connections to,
extensions from and means of using these utilities. The Contractor will pay
utility company bills for water, gas and electrical services which is required for
the Project, and which passes through the Owner's meters, if any. The
Contractor shall pay for water, gas and electrical services up to and including
the date of Substantial Completion.
ARTICLE 12
GOODS, PRODUCTS AND MATERIALS
12.1 The Contractor shall furnish goods, products, materials, equipment and
systems which
12.1.1 Comply with this Contract for General Construction Services;
12.1.2 Conform to applicable specifications, descriptions, instructions, drawings, data
and samples;
12.1.3 Are new (unless otherwise specified or permitted) and without apparent
damage;
12.1.4 Are of quality, strength, durability, capacity or appearance equal to or higher
than that required by the Contract Documents;
12.1.5 Are free from defects; and
12.1.6 Are beyond and in addition to those required by manufacturers' or suppliers'
specifications where such additional items are required by the Contract
Documents.
12.2 All goods, products, materials, equipment and systems named or described in
the Contract Documents, and all others furnished as equal thereto shall, unless
specifically stated otherwise, be furnished, used, installed, employed and
protected in strict compliance with the specifications, recommendations and
instructions of the manufacturer or supplier, unless such specifications,
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recommendations or instructions deviate from accepted construction practices,
or the Contract Documents, in which case the Contractor shall so inform the
Architect and shall proceed as directed by the Architect, provided that there are
no additional costs associated with the directives. The Contractor shall
coordinate all trade contracts, and subcontracts to verify compatibility of goods,
products, materials, equipment and systems, and the validity of all warranties
and guarantees, required by the Contract Documents.
12.3 The Contractor shall inform the Owner of goods, products, materials,
equipment or systems which the Contractor knows or should have known are
unsuitable or unavailable at the time of bid submission, and claims relating to
or arising out of claims that goods, products, materials, equipment or systems
are unsuitable or unavailable shall not be entertained by the Owner unless the
Contractor, subcontractor, or supplier notified the Owner in writing at the time
of bid submission, along with proposed alternatives. Approval by the Architect
of substitute goods, products, materials, equipment or systems does not mean
or imply final acceptance by the Architect if such items should be defective or
not as previously represented. Should the Contractor furnish any approved
goods, products, materials, equipment or systems different from or in addition
to those required by the Contract Documents which require supplemental
materials or installation procedures different from or in addition to those
required for specified items, the Contractor shall provide such at no increased
cost to the Owner. The Contractor shall coordinate the work of those
subcontractors and suppliers whose work will be installed before and after the
installation of any approved alternative or substitute so that there will be no
conflicts or additional work required to be performed. The Owner will not be
responsible for any costs associated with the failure of the Contractor to
coordinate the work.
12.4 The Contractor shall provide security for the Project, until Final Completion,
including but not limited to security for its work in progress and for the goods,
products, materials, equipment, systems, construction machinery, tools,
devices and other items required, used or to be used for its scope of the work.
The Contractor shall be responsible for selecting the type of security that they
choose to employ or use in connection with the Project.
ARTICLE 13
SUBMITTALS
13.1 The Contractor shall include a schedule for all anticipated submittals in the
Schedule that they prepare in accordance with Article 9. The schedule shall
include the submittals required by each section of the specifications; be in a
format acceptable to the Architect; and set forth specific dates for submission
of the listed submittals. The Contractor shall review and approve all submittals
prior to submission to the Architect.
13.2 The Contractor shall in timely fashion review, approve if appropriate and
forward submittals to the Architect for review and approval along with such
detail and information as the Architect requires. No part of the work requiring a
submittal shall be fabricated or performed until such approval has been given.
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13.3 The Architect is responsible to the Owner, but not to the Contractor, to verify
that the submittals conform to the design concept and functional requirements
of the plans and specifications, that the detailed design portrayed in shop
drawings and proposed equipment and materials shown in submittals are of the
quality specified and will function properly, and that the submittals comply with
the Contract for General Construction Services. The Architect will review and
approve, reject or take other appropriate action on submittals such as shop
drawings, product data, samples and proposed equal materials or equipment
and requested substitutions within not more than fourteen (14) calendar days,
and will not approve any submittals unless such submittals conform with the
Project design concept; and this Contract for General Construction Services.
The Architect's review of submittals shall not constitute final acceptance of
materials or equipment furnished or installed if such materials or equipment
should be defective or not as represented by approved submittals or as
otherwise required by the Contract Documents. The Contractor remains
responsible for details and accuracy, for confirming and correlating all
quantities and dimensions, for selecting fabrication processes, for techniques
of assembly, and for performance of the work.
13.4 If the Architect makes any changes to the approved submittals which will
require a change in the contract amount, the Contractor shall follow the change
procedures required elsewhere in this agreement, prior to performing the work.
If the Architect does make a change on the approved submittals, and if the
Contractor proceeds with the work prior to receiving a change order to the
Contract, the Contractor waives their right to obtain further compensation for
the change.
13.5 All work shall be performed in accordance with approved submittals. Approval
of submittals by the Architect does not relieve the Contractor from complying
with this Contract for General Construction Services, including all plans and
specifications, except as changed by Change Order.
ARTICLE 14
CONTRACTOR'S QUALITY ASSURANCE
14.1 During the course of work, the Contractor shall inspect and promptly reject any
work which does not conform to the Contract Documents; or which does not
comply with any applicable law, statute, building code, rule or regulation of any
governmental, public authorities and agencies having jurisdiction over the
Project.
14.1.1 The Contractor shall promptly correct or require the correction of all rejected
work, whether observed before or after Substantial Completion and whether or
not fabricated, installed or completed. The Contractor shall be responsible for
all costs of correcting such work, including additional testing and inspections
and compensation for all services and expenses necessitated by such
correction.
14.1.2 The Contractor shall be responsible for the cost of correcting destroyed or
damaged work, whether completed or partially completed, of the Owner or
other trade contractors or subcontractors caused by the Contractor's correction
or removal of rejected work.
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14.2 If a portion of the work has been concealed, the Contractor shall, if notified to
do so by the Architect, uncover the designated portion for observation and then
replace it.
14.2.1 If the designated portion of the work was concealed contrary to the request of
the Architect, or to requirements specifically expressed in the Contract
Documents, the Contractor shall receive no additional compensation for the
costs of uncovering and replacement or modification of the Construction
Schedule.
14.2.2 If the designated portion of the work was concealed prior to a specific request
by the Architect that it remain uncovered, the Contractor shall receive
additional compensation for the costs of uncovering and replacement or
modification of the Construction Schedule only if the designated portion of the
work was in conformance with the Contract Documents.
ARTICLE 15
CHANGES TO THE PROJECT
15.1 The Contractor understands and agrees that this Contract for General
Construction Services cannot be changed except as provided herein. No act,
omission or course of dealing by the parties shall alter the requirement that
modifications of this Contract for General Construction Services can be
accomplished only by written documents signed by the parties.
15.2 One or more changes to the Project within the general scope of this Contract
may be ordered by Change Order. The Contractor shall proceed with any such
changes, and all changes shall be accomplished in strict accordance with the
terms and conditions of Article 15.
15.2.1 With respect to such requests for changes by the Contractor, the Contractor
shall prepare and submit change order request proposals to the Architect.
15.2.2 The Contractor shall promptly review and respond to change order requests
submitted by the Architect.
15.2.3 When requested to do so, the Contractor shall prepare and submit to the
Architect drawings, specifications or other data in support of a change order
request.
15.2.4 Each change order request proposal shall include time and monetary impacts
of the change.
15.3 The Owner will not be responsible for any change in the Project involving extra
costs unless approval in writing is furnished by the Owner before such work
begins. The Architect does not have authority to order changes to the Project
that involve changes in cost or time. The Architect, without the Owner's prior
approval, may authorize or direct the Contractor to make minor changes in the
Project which are consistent with the intent of the Contract Documents and
which do not involve a change in Project cost, time for construction, scope, or
approved design elements, and the Contractor shall promptly carry out such
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changes. Any such minor changes shall be implemented by written field order
and executed by the Contractor.
15.3.1 No act or omission shall alter the requirement that change orders shall be in
writing and signed by the Owner, and that change orders are the exclusive
method for effecting any adjustment to compensation or applicable schedules.
The Contractor understands and agrees, on behalf of itself and its
subcontractors and suppliers, that neither compensation nor applicable
schedules can be changed by implication, oral agreement, or unwritten change
order.
15.4 The Owner may unilaterally direct the Contractor to implement changes in the
Project so long as the work the Owner is requiring is not outside of the general
scope of this Contract for General Construction Services, and the Contractor,
upon written direction from the Owner, shall proceed with such change.
15.5 The Architect will administer and manage all change order requests and
change orders and will prepare required drawings, specifications and other
supporting data as necessary in connection with minor changes, change order
requests and change orders.
15.6 Any change in the Contract Amount resulting from a Change Order shall be
determined as follows:
15.6.1 By mutual agreement between the Owner and the Contractor as evidenced by
the change in the Contract Amount being set forth in the Change Order, such
change in the Contract Amount, together with any conditions or requirements
relating thereto, being initialed by both parties and the Contractor's execution of
the Change Order. If, and to the extent, the change involves work of one or
more subcontractors, the overhead and profit component for subcontractors
shall be fifteen percent (15 %) and the overhead and profit component for the
Contractor shall be five percent (5 %) of the amount allocable for subcontracted
work. If the change involves only work of the Contractor, the component for
overhead and profit shall be fifteen percent (15 %).
15.6.2 If no mutual agreement occurs between the Owner and the Contractor, the
change in the Contract Amount, if any, shall be derived by determining the
reasonable actual costs incurred or savings achieved, resulting from revisions
to the Project. Such reasonable actual costs or savings shall include a
component for overhead and profit. If, and to the extent, the change involves
work of one or more subcontractors, the overhead and profit component for
subcontractors shall be fifteen percent (15 %) and the overhead and profit
component for the Contractor shall be five percent (5 %) of the amount
allocable for subcontracted work. If the change involves only work of the
Contractor, the component for overhead and profit shall be fifteen percent
(15 %). Any such costs or savings shall be documented in the format and with
such content and detail as the Architect requires.
15.6.3 The overhead and profit for any change shall be applied to the net cost of the
change, after all applicable savings and credits have been applied.
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15.6.4 The overhead and profit component for any change includes the cost of bonds
and insurance.
15.6.5 By the unit prices included in Exhibit G. Payment for work provided by the unit
prices will be compensated as described in the specifications.
15.7 With respect to all change order requests involving credit to the Owner or
additional compensation to the Contractor, the Contractor shall obtain the best
possible price quotations from their subcontractors and suppliers; they should
review such quotations to ascertain whether they are reasonable; prepare an
itemized estimate together with appropriate supporting data, including
reasonable expenditures by, and savings to, those performing the work
involved in the proposed change; and provide a reasonable price quotation to
the Architect.
15.7.1 If the Architect determines that the change order requests is unreasonable, the
Contractor shall, in writing, justify the quotations or provide additional back -up
to support the request. If after review of the additional information the Architect
determines that the quotation is unreasonable, the Owner may require the
Project be performed on a time and material basis along with the applications
of the mark -ups indicated in Article 15.6.2.
15.8 Upon receipt of a field order or change order, changes in the work shall be
promptly performed. All changes in the work shall be performed under
applicable conditions of the Contract Documents.
15.9 If there is a dispute that a change has occurred; whether a change in the work
will result in adjustment of compensation or applicable schedules; or as to the
amount of any adjustment of compensation or applicable schedules, the
change shall be carried out if the Owner so directs. The Contractor shall notify
the Owner in writing prior to performance of the work which is the subject of the
dispute and the party disputing the decision of the Owner recites the reasons
for its dispute in the written notice. Failure to notify the Owner in writing shall
constitute a waiver of any claim resulting from the change.
15.10 In the event a change order request is approved by the Owner in the absence
of an agreement as to cost, time, or both, the Architect will receive and
maintain all documentation pertaining thereto; examine such documentation on
the Owner's behalf; take such other action as may be reasonably necessary or
as the Owner may request; and make a written recommendation to the Owner
concerning any appropriate adjustment in the Contract Amount or Construction
Schedule.
15.11 The execution of a Change Order by the Contractor shall constitute conclusive
evidence of the Contractor's agreement to the ordered changes in the work,
this Contract as thus amended, the Contract Amount and the time for
performance by the Contractor. The Contractor, by executing the Change
Order, waives and forever releases any claim against the Owner for additional
time or compensation for matters relating to or arising out of or resulting from
the work included within or affected by the executed Change Order.
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15.12 The Contractor shall notify and obtain the consent and approval of the
Contractor's Surety with reference to all Change Orders if such notice, consent
or approvals are required by the Owner, the Architect, and the Contractor's
Surety, or by law. The Contractor's execution of the Change Order shall
constitute the Contractor's warranty to the Owner that the Surety has been
notified of, and consents to, such Change Order and that the Surety shall be
conclusively deemed to have been notified of such Change Order and to have
expressly consented thereto.
ARTICLE 16
CLAIMS AND LIENS
16.1 The Contractor shall immediately notify Architect and the Owner, both orally
and in writing, of the nature and details of any mechanics' liens, construction
liens, Contractor's trust fund claims, or claims of any type made by anyone
against the Owner, the Owner's Representative, the Architect, the Contractor
or any subcontractor or supplier of any of them or against the Project whether
or not such claims arise from the Project.
16.2 The Contractor shall take all action necessary to obtain the prompt discharge of
any liens or claims filed against the Project provided that the Owner has paid
the Contractor for the work giving rise to the lien. If any lien or claim filed
against the Project is not discharged and released by the claimant, the
Contractor shall, within a reasonable period of time, but in no event more than
fourteen (14) calendar days after request and at its own cost, promptly obtain
discharge and release of, or indemnity for, such lien or claim by providing or
filing, as appropriate, the requisite bond. If the Contractor fails to have any
such lien or claim discharged and released, or fails to provide or file the
requisite bond, the Owner shall have the right to pay all sums necessary to
obtain such a discharge and release, and the Contractor shall bear all
expenses incurred by the Owner in so doing.
16.3 All Contractor claims against the Owner shall be initiated by a written claim
submitted to the Owner and the Architect. Such claim shall be received by the
Owner and the Architect no later than ten (10) calendar days after the event, or
the first appearance of the circumstances, causing the claim, and same shall
set forth in detail all known facts and circumstances supporting the claim.
16.4 The Contractor and the Owner shall continue their performance hereunder
regardless of the existence of any claims submitted by the Contractor.
16.5 In the event the Contractor seeks to make a claim for an increase in the
Contract Amount, as a condition precedent to any liability of the Owner, the
Contractor shall strictly comply with the requirements of Article 16.3 above and
such claim shall be made by the Contractor before proceeding to execute any
additional or changed Work. Failure of the condition precedent to occur shall
constitute a waiver by the Contractor of any claim for additional compensation.
16.6 In connection with any claim by the Contractor against the Owner for
compensation in excess of the Contract Amount, any liability of the Owner for
the Contractor's cost shall be strictly limited to direct cost incurred by the
Contractor and shall in no event include indirect cost or consequential
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damages of the Contractor. The Owner shall not be liable to the Contractor for
claims of third - parties including subcontractors, unless and until liability of the
Contractor has been established in a court of competent jurisdiction.
16.7 In the event the Contractor should be delayed in performing any task which at
the time of the delay is then critical, or which during the delay becomes critical,
as the sole result of any act or omission by the Owner or someone acting in the
Owner's behalf, or by Owner - authorized Change Orders, fire or other Acts of
God, the date for achieving Substantial Completion, or, as applicable, final
completion, shall be appropriately adjusted by the Owner upon the written
claim of the Contractor to the Owner and the Architect. A task is critical within
the meaning of this Article 16.7 if, and only if, said task is on the critical path of
the Project schedule so that a delay in performing such task will delay the
ultimate completion of the Project. Any claim for an extension of time by the
Contractor shall strictly comply with the requirements of Article 16.3 above. If
the Contractor fails to make such claim as required in this Article, any claim for
an extension of time shall be waived.
16.8 The date for achieving Substantial Completion or, as applicable, final
completion will not be extended due to bad weather (excepting bad weather
which precludes access to the project site) after the Project is enclosed or for
normal bad weather. The time for Substantial Completion as stated in the
Contract includes an allowance for Working days (Monday through Friday) on
which the Contractor agrees that he may expect to lose Working days due to
bad weather, in accordance with the following table, on Work to be performed
out -of- doors.
January 10 days July 4 days
February 10 days August 2 days
March 7 days September 2 days
April 6 days October 3 days
May 4 days November 5 days
June 3 days December 9 days
At the time the Project is enclosed, if the total accumulated number of Working
days lost due to weather exceeds the total accumulated number derived from
the table above, time for completion shall be extended by such excess. No
change in the Contract Amount will be authorized because of adjustment of
contract time due to weather.
ARTICLE 17
PROJECT ARCHITECT
17.1 The architect for this Project is Turner Associates Architects & Planners, Inc.
(the "Architect "). In the event the Owner should find it necessary or convenient
to replace the Architect, the Owner shall retain a replacement architect and the
role of the replacement architect shall be the same as the role of the Architect.
Unless otherwise directed by the Owner in writing, the Architect will perform
those duties and discharge those responsibilities allocated to the Architect in
this Contract. The duties, obligations and responsibilities of the Architect shall
include, but are not limited to, the following:
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17.1.1 Unless otherwise directed by the Owner in writing, the Architect shall act as the
administrator of this Contract until final payment has been made, to the extent
expressly set forth in this Contract.
17.1.2 Unless otherwise directed by the Owner in writing, the Owner Representative
and the Contractor shall communicate with each other in the first instance
through the Architect.
17.1.3 When requested by the Contractor in writing, the Architect shall render
interpretations necessary for the proper execution or progress of the Project.
17.1.4 The Architect shall administer any required changes to the scope of work, and
draft proposed Change Orders.
17.1.5 The Architect shall approve, or respond otherwise as necessary concerning
shop drawings or other submittals received from the Contractor.
17.1.6 The Architect shall be authorized to refuse to accept work which is defective or
otherwise fails to comply with the requirements of this Contract. If the Architect
deems it appropriate, the Architect shall be authorized to call for extra
inspection or testing of the work for compliance with requirements of this
Contract.
17.1.7 The Architect shall review the Contractor's Payment Requests and shall
approve in writing those amounts which, in the opinion of the Architect, are
properly owing to the Contractor as provided in this Contract.
17.1.8 The Architect shall, upon written request from the Contractor, perform those
inspections required in this Agreement.
17.2 The duties, obligations and responsibilities of the Contractor under this
Contract for General Construction Services shall in no manner whatsoever be
changed, altered, discharged, released, or satisfied by any duty, obligation or
responsibility of the Architect. The Contractor is not a third -party beneficiary of
any contract by and between the Owner and the Architect. It is expressly
acknowledged and agreed that the duties of the Contractor to the Owner are
independent of, and are not diminished by, any duties of the Architect to the
Owner.
17.2.1 The Architect will be the Owner's design representative during performance of
the Project and will consult with and advise the Owner on all design and
technical matters.
17.2.2 The Architect will act as the initial interpreter of the requirements of this
Contract for General Construction Services and as the Owner's advisor on
claims.
17.3 The Architect will visit the Site with sufficient frequency for familiarization with
the progress and quality of the work and to inspect the work to determine
compliance of the work with this Contract for General Construction Services,
including approved shop drawings and other submittals; the Construction
Schedule; and applicable laws, statutes, building codes, rules or regulations of
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all governmental, public authorities and agencies having jurisdiction over the
Project.
17.4 The Architect may disapprove or reject work which does not comply with this
Contract for General Construction Services including approved shop drawings
and other submittals; or applicable laws, statutes, building codes, rules or
regulations of any governmental, public authorities and agencies having
jurisdiction over the Project.
17.5 The Architect will review and evaluate the results of all inspections, tests and
written reports required by this Contract for General Construction Services and
by any governmental entity having jurisdiction over the Project. The Architect
will take appropriate action on test results, including acceptance, rejection,
requiring additional testing or corrective Project, or such other action deemed
appropriate by the Architect. The Architect will promptly reject work which does
not conform to and comply with testing requirements.
17.6 The Architect may require inspection or testing of any work in addition to that
required by this Contract for General Construction Services or governmental
entities having jurisdiction over the Project when such additional inspections
and testing is necessary or advisable, whether or not such work is then
fabricated, installed or completed. The Architect will take appropriate action on
all such special testing and inspection reports, including acceptance, rejection,
requiring additional testing or corrective work, or such other action deemed
appropriate by the Architect.
17.7 The Architect will, when requested to do so in writing by the Contractor,
promptly and so as to cause no unnecessary delay, render written or graphic
interpretations and decisions necessary for the proper execution of the work.
The Architect's interpretations and decisions relating to artistic effect shall be
final if not inconsistent with this Contract for General Construction Services.
17.8 The Architect will review applications for payment, including such
accompanying data, information and schedules as the Contract requires, to
determine the amounts due to the Contractor and shall authorize payment to
the Contractor in writing to the Owner. After the Project is determined to be
finally complete and the Architect determines that the Contractor has
completed the Project, the Architect will determine whether the Contractor is
entitled to final payment, and if so will so certify to the Owner in writing.
ARTICLE 18
SUBSTANTIAL AND FINAL COMPLETION
18.1 Substantial Completion of the Project shall be defined to have occurred when a
Certificate of Substantial Completion has been issued by the Architect, and the
required documentation has been produced.
18.2 When the Contractor believes that the Project is substantially complete, the
Contractor shall notify the Architect that the Project is ready for a Substantial
Completion Inspection.
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18.3 Prior to the Substantial Completion Inspection, the Contractor shall prepare
and furnish to the Architect a letter requesting a Substantial Completion
Inspection, which at a minimum must:
18.3.1 Provide a blank line for entry of the date of Substantial Completion. The date
of Substantial Completion will fix the commencement date of warranties and
guaranties and allocate between the Owner and the Contractor responsibility
for security, utilities, damage to the work and insurance;
18.3.2 Include a list of items to be completed or corrected and state the time within
which the listed items will be completed or corrected, along with the cost to
complete each item;
18.3.3 Provide signature lines for the Owner, the Contractor and the Architect.
18.4 Upon receipt of notification from the Contractor, the Architect will coordinate
with the Owner's Representative, their Consultants, and the Contractor on a
date for inspection of the Project to determine whether the Project is
substantially complete.
18.5 During the inspection to determine whether the Project is substantially
complete, the Architect will:
18.5.1 Inspect the Project;
18.5.2 Provide a list of items to be completed or corrected;
18.5.3 Determine, in consultation with the Owner's Representative, whether
Substantial Completion of the Project has occurred.
18.6 If the Project is determined not to be substantially complete, the Contractor
shall continue working until the Project is substantially complete and the
inspection process shall be repeated at no additional cost to the Owner until
the Project is determined to be substantially complete.
18.7 On or prior to the required date of Substantial Completion, the Contractor shall
deliver to the Architect keys, permits, the certificate of occupancy, and other
necessary and customary documents and items required for the Owner's
occupancy and use of the Project for its intended purpose. The Architect will
obtain and review Substantial Completion documentation and items, and will
inform the Contractor of any deficiencies.
18.8 When the Owner, the Contractor and the Architect agree that the Project is
substantially complete, and the Contractor has produced the required
Substantial Completion documentation, they shall sign the Certificate of
Substantial Completion stating that the Project is substantially complete and
establishing the actual date of Substantial Completion. The Certificate of
Substantial Completion shall also include a list of and timeline for the
completion of the items needing completion and correction.
18.9 Final Completion of the Project shall be deemed to have occurred when the
Project passes a Final Completion Inspection, and when the Contractor has
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produced all required close -out documentation and items. Final Completion
shall not be deemed to have occurred and no final payment shall be due the
Contractor or any of its subcontractors or suppliers until the Project has passed
the Final Completion Inspection and all required Final Completion close -out
documentation and items have been submitted to the Architect by the
Contractor.
18.10 When the Contractor believes that the Project is finally complete, the
Contractor shall notify the Architect that the Project is ready for a Final
Completion Inspection.
18.11 Upon receipt of such notification from the Contractor, the Architect will
coordinate with the Owner's Representative and the Contractor and schedule a
date for inspection of the Project to determine whether the Project is finally
complete.
18.12 At the Final Completion Inspection to determine whether the Project is finally
complete, the Architect will:
18.12.1 Inspect the Project;
18.12.2 Determine whether all items on the list included with the Certificate of
Substantial Completion have been satisfactorily completed and corrected;
18.12.3 Determine whether the completed Project complies with this Contract for
General Construction Services; and all applicable laws, statutes, building
codes, rules or regulations of all governmental, public authorities and agencies
having jurisdiction over the Project.
18.12.4 The Architect shall determine whether the required inspections and approvals
by the local building officials having jurisdiction over the Project have been
satisfactorily completed; and determine, in consultation with the Owner's
Representative, whether the Project is finally complete.
18.13 If the Project is not finally complete, the Contractor shall continue to work to
complete the Project, and the inspection process shall be repeated at no
additional cost to the Owner, until the Project is finally complete.
18.14 On or prior to the date of Final Completion, the Contractor shall deliver to the
Architect the following Final Completion close -out documentation and items:
18.14.1 All operating, maintenance, and instruction manuals not previously produced
during Substantial Completion and required maintenance stocks;
18.14.2 Two (2) sets of as -built drawings and markups;
18.14.3 Certification and affidavit that all insurance required of the Contractor beyond
final payment, if any, is in effect and will not be canceled or allowed to expire
without notice to the Owner;
18.14.4 Written consent of the surety to release final payment;
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18.14.5 Full, final and unconditional waivers of mechanics or construction liens,
releases of Contractor's trust fund or similar claims, and release of security
interests or encumbrances on the Project property from each contractor,
subcontractor, supplier or other person or entity who has, or might have a claim
against the Owner or the Owner's property;
18.14.6 Full, final and unconditional certification and affidavit that all of the Contractor's
obligations to contractors, subcontractors, suppliers and other third parties for
payment for labor, materials or equipment related to the Project have been paid
or otherwise satisfied;
18.14.7 All written warranties and guarantees relating to the labor, goods, products,
materials, equipment and systems incorporated into the Project, endorsed,
countersigned, and assigned as necessary;
18.14.8 All affidavits, releases, bonds, waivers, permits and other documents
necessary for final close -out of Project;
18.14.9 A list of any items due but unable to be delivered and the reason for non-
delivery;
18.14.10 Any other documents reasonably and customarily required or expressly
required herein for full and final close -out of the Project.
18.15 The Architect will review and determine the sufficiency of all Final Completion
close -out documentation and items required for Final Completion which are
submitted by the Contractor, and will immediately inform the Contractor about
any deficiencies and omissions.
ARTICLE 19
CONTRACTOR'S WARRANTIES AND GUARANTEES
19.1 In addition to the warranties and guarantees set forth elsewhere in this
Contract for General Construction Services, the Contractor, upon request by
the Owner or the Architect, shall promptly correct all failures or defects in the
Project for a period of one (1) year after the actual date of Substantial
Completion.
19.1.1 The Contractor shall schedule, coordinate and participate in a walk- through
inspection of the Project one month prior to the expiration of the one -year
warranty period, and shall notify the Owner's Representative, the Architect, and
any required subcontractors and suppliers of the date of, and request their
participation in, the walk- through inspection. The purpose of the walk- through
inspection will be to determine if there are any defects or failures which require
correction.
19.1.2 Should the Contractor fail to promptly correct any failure or defect, the Owner
may take whatever actions it deems necessary to remedy the failure or defect
and the Contractor shall promptly reimburse the Owner for any expenses or
damages it incurs as a result of the Contractor 's failure to correct the failure or
defect.
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19.2 In addition to the warranties and guarantees set forth elsewhere herein, the
Contractor expressly warrants and guarantees to the Owner:
19.2.1 That the work complies with the Contract Documents; and all applicable laws,
statutes, building codes, rules and regulations of all governmental, public
authorities and agencies having jurisdiction over the Project.
19.2.2 That all goods, products, materials, equipment and systems incorporated into
the Project conform to applicable specifications, descriptions, instructions,
drawings, data and samples and shall be and are new (unless otherwise
specified or permitted) and without apparent damage or defect; of quality equal
to or higher than that required by the Contract Documents;
19.2.3 That all management, supervision, labor and services required for the Project
shall comply with this Contract for General Construction Services and shall be
and are performed in a good workmanlike manner.
19.3 The Contractor shall require that all of its subcontractors and suppliers provide
written warranties, and guarantees to the Owner and the Contractor, in a form
identical to the warranties, and guarantees required in the Contract for General
Construction Services, including the warranties, and guarantees required in this
Article. Standard warranties and guarantees provided by the material or
product manufacturer will be acceptable provided that they comply with the
requirements in Article 19.
19.4 The warranties and guarantees required in this Article shall be in addition to all
other warranties, express, implied or statutory, and shall survive the Owner's
payment, acceptance, inspection of or failure to inspect the Project, and review
of the Contract Documents.
19.5 Nothing contained in Article 19.1, shall be construed to establish a period of
limitation with respect to the Contractor's obligations under this Contract for
General Construction Services. Paragraph 19.1 relates only to the Contractor's
specific obligations with respect to the Project, and has no relationship to the
time within which the Contractor's contractual obligations under this Contract
for General Construction Services may be enforced, nor to the time within
which proceedings may be commenced to establish the Contractor's liability
with respect to any contractual obligations pursuant to Article 19.1 or contained
elsewhere herein.
19.6 Unless otherwise specified, all of the Contractor's warranty and guaranty
obligations, including the time periods for all written warranties and guarantees
of specifically designated equipment required by the Construction Documents,
shall begin on the actual date of Substantial Completion.
ARTICLE 20
OWNER'S DUTIES, OBLIGATIONS AND RESPONSIBILITIES
20.1 The Owner shall timely compensate the Contractor in accordance with this
Contract for General Construction Services.
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20.2 Unless otherwise required to be provided by the Contractor in its scope of
services, the Owner shall secure and pay for all Project testing.
20.3 The Owner shall review documents prepared by the Contractor in a timely
manner and in accordance with schedule requirements. Review by the Owner
shall be solely for the purpose of determining whether such documents are
generally consistent with the Owner's intent. No review of such documents
shall relieve the Contractor of any of its responsibilities.
20.4 The Owner shall not have control or charge of construction means, methods,
techniques, sequences or procedures, or for safety precautions and programs
in connection with the Project, nor shall the Contractor, for any of the foregoing
purposes, be deemed the agent of the Owner.
20.5 The Owner, upon reasonable written request, shall furnish to the Contractor in
writing statements of the record legal title to the Site on which the Project is
located and the Owner's interest therein at the time of execution of this
Contract for General Construction Services; and the Owner's financial capacity
to pay for the Project, subject to such reasonable confidentiality requirements
that the Owner may impose.
20.6 If required for the Project, the Owner shall furnish a certified land survey of the
site, giving as applicable, grades and lines of streets, alleys, pavements and
adjoining property; rights -of -way, restrictions, easements, encroachments,
zoning, deed restrictions, boundaries and contours of the site; locations,
dimensions and data pertaining to existing buildings, other improvements and
trees; and full information concerning available service and utility lines, both
public and private, above and below grade, including inverts and depths.
20.7 The Owner shall pay for the services of a soils engineer or other consultants,
when such services are deemed necessary by the Architect or Owner's
Representative, to provide reports, test borings, test pits, soil bearing values,
percolation tests, air and water pollution tests, ground corrosion and resistivity
tests and other necessary operations for determining subsoil, air and water
conditions, with appropriate Architect interpretations thereof. This does not
relieve the Contractor of the responsibility for providing the testing required in
the Contract Documents.
20.8 The Owner shall pay for structural, mechanical, chemical and other laboratory
tests, inspections and reports as required by law that are not otherwise called
for in this Agreement.
20.9 The Owner shall furnish such legal, accounting, and insurance counseling
services as the Owner may deem necessary for the Project and such auditing
services as may be required to ascertain how, or for what purposes, the
Contractor has used the moneys paid to it under the Construction Contract.
20.10 All services, information, surveys and reports required of the Owner shall be
furnished at the Owner's expense and the Contractor shall be entitled to rely
upon their accuracy and completeness.
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20.11 The Owner shall furnish information and approvals required of it expeditiously,
for orderly progress of the work.
20.12 If it is customary for the Contractor to obtain any permits and /or licenses, the
Owner shall pay for and the Contractor shall request, expedite, and obtain all
necessary permits, licenses, approvals, easements, assessments, and charges
required for the construction, use or occupancy of permanent structures or for
permanent changes in any existing facilities. If it is not customary for the
Contractor to obtain any permits and /or licenses, then the Architect shall
coordinate this on behalf of the Owner.
20.13 The Owner shall provide the Contractor with all written and tangible material in
its possession concerning conditions below ground at the Site.
20.14 If the Project involves an existing structure, the Owner shall provide the
Contractor with all available as -built drawings, record drawings, plans,
specifications and structure system information with respect to such structure.
20.15 The Owner will provide the Contractor with the Provisional Project Schedule of
pertinent Project dates and key milestone dates in Exhibit B.
ARTICLE 21
LIQUIDATED DAMAGES
21.1 The parties hereto mutually understand and agree that time is of the essence in
the performance of this Contract for General Construction Services, and that
the Owner will incur damages if the Project is not completed on time. The
Contractor shall at all times carry out its duties and responsibilities as
expeditiously as possible and shall begin, perform and complete its services so
that the Project progresses in accordance with the Construction Schedule; the
Project is substantially completed by the required date of Substantial
Completion; and the Project is finally complete by the date of Final Completion.
21.2 The parties hereto mutually understand and agree that the Owner will sustain
substantial monetary and other damages in the event of a failure or delay by
the Contractor in the completion of the Project.
21.2.1 If the Contractor inexcusably fails to achieve Substantial Completion by the
required date of Substantial Completion as established and previously set forth
in this Contract for General Construction Services, the Contractor shall pay to
the Owner, as liquidated damages for delay and not as a penalty, the daily
amount of $200.00 for each and every day after the required date of
Substantial Completion until Substantial Completion. This liquidated damages
provision shall apply and remain in full force and effect in the event that the
Contractor is terminated by Owner for default and shall apply until Substantial
Completion has been achieved by any completing Contractor.
21.2.2 If the Contractor fails to achieve Final Completion by the required date of Final
Completion as established and previously set forth in this Contract for General
Construction Services, the Contractor shall pay to the Owner, as liquidated
damages for the delay and not as a penalty, fifteen (15 %) percent of the daily
amount stated above for failure to timely achieve Substantial Completion, even
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if not actually imposed, for each calendar day of unexcused delay in achieving
Final Completion.
21.3 If the Contractor is delayed at any time in the progress or performance of the
Project by acts or omissions of the Owner or Architect; major changes ordered
by the Owner in the scope of Project; or any other cause which the Owner
determines may justify the compensation of the Contractor for the delay, the
Contractor's compensation shall be equitably adjusted to cover the Contractor's
actual and direct increased costs attributable to such delay.
21.4 If the Contractor is delayed at any time in the progress or performance of the
Project by acts or omissions of the Owner or Architect; major changes ordered
by the Owner in the scope of Project; fire; unusual delays in transportation;
adverse unusual weather conditions not reasonably anticipated by the
Contractor; unavoidable casualties; causes beyond the Contractor's control
which the Owner agrees in writing are justifiable; or any other cause which the
Owner determines may justify the delay, the Construction Schedule shall be
extended for a period equal to the length of such delay, but only if such delay is
not in any way caused by default or collusion on the part of the Contractor or by
any cause which the Contractor could reasonably control or circumvent; the
Contractor would have otherwise been able to timely perform all of its
obligations under this Contract for General Construction Services but for such
delay; and immediately but not later than seven (7) calendar days after the
beginning of any such delay the Contractor gives notice of its delay claim to the
Owner.
21.5 When the Owner believes that the date of Substantial Completion will be
inexcusably delayed; or that the Contractor will fail to achieve Final Completion
by the date of Final Completion, the Owner shall be entitled, but not required,
to withhold from any amounts otherwise due the Contractor the daily amount
specified for liquidated damages in this Article for each calendar day of the
unexcused delay.
21.5.1 If and when the Contractor overcomes the delay in timely achieving Substantial
Completion or Final Completion, or any part thereof, for which the Owner has
withheld payment, the Owner shall promptly release to the Contractor those
funds withheld, but no longer applicable, as liquidated damages.
21.5.2 Delay caused by labor disputes, picketing, employee boycotts, or the like which
directly or indirectly involves employees of the Contractor or its subcontractors
and suppliers is not the responsibility of the Owner and will result in time
extensions only if agreed to in writing by the Owner at the time such events
occur, and any such modifications to the schedule will be done at no additional
expense to the Owner.
ARTICLE 22
CONCEALED AND UNFORESEEN CONDITIONS
22.1 If the Contractor encounters concealed and unforeseen conditions of an
unusual nature which affect the performance of the Project; or the conditions
vary from those indicated by the Contract Documents; and such conditions are
not ordinarily found to exist or differ materially from those generally recognized
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as inherent in Project of the character provided by the Contractor, the
Contractor shall promptly, but in no event later than three (3) calendar days
after first observance of the conditions, notify the Architect before conditions
are disturbed and give the Architect the opportunity to observe the condition in
its undisturbed state.
22.1.1 The conditions will be promptly investigated and, if they differ substantially and
cause a material increase or decrease in the Contractor's cost of, or time
required for, performance of the work, compensation or time for performance or
both will be equitably adjusted.
22.1.2 All adjustments in compensation or extensions of time shall be by change
order. Change order requests must be made within fourteen (14) calendar
days from the date of observation of the changed conditions.
22.2 The Contractor's failure to notify the Architect as provided in this Article shall
constitute a waiver of any claim arising out of or relating to such concealed or
unknown condition.
ARTICLE 23
CONTRACTOR'S RECORDS
23.1 The Contractor shall, concurrently with performance of its services, prepare
substantiating records regarding services rendered and goods furnished.
23.2 The Contractor shall retain in its records copies of all written communications;
memoranda of verbal communications; accounting records (including original
estimates and estimating sheets, purchase orders and invoices); job site notes;
daily logs; reports; notices; all subcontract files (including proposals of
successful and unsuccessful bidders); change order files (including
documentation covering negotiated settlements); written policies and
procedures, records necessary to evaluate and verify direct and indirect costs
(including by way of example overhead allocations, payroll records, time
sheets, rental receipts, fixed asset records); and other documents such as
plans, specifications, submittals, correspondence, minutes, memoranda, tape
recordings, videos, accounting records, documents reflecting the unit price of
construction and other writings or things which document the work, its design,
its cost, and its construction.
23.2.1 The Contractor shall maintain substantiating records for seven (7) years after
the date of Final Completion or for any longer period of time as may be
required by law or good construction practice. If the Contractor receives
notification of a dispute or the commencement of litigation regarding the Project
within this seven -year period, the Contractor shall continue to maintain all
Project records until final resolution of the dispute or litigation.
23.2.2 The Contractor shall, upon seven (7) days request from the Owner, secure
from its subcontractors and suppliers copies of the documents indicated in
Article 23.2.
23.2.3 Upon the request of the Owner, the Contractor shall make its records available
during normal business hours to the Owner, its authorized representative(s) or
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to any state, federal or other regulatory authority. Any such authority, the
Owner and its authorized representative(s) shall be entitled to inspect,
examine, review and copy the Contractor's records at the copying party's
reasonable expense, within adequate Project space at the Contractor's
facilities. Failure by the Contractor to supply substantiating records from itself
and its subcontractors and suppliers upon the request of the Owner shall be
reason to exclude the related costs from amounts which might otherwise be
payable by the Owner pursuant to this Contract for General Construction
Services.
ARTICLE 24
PROPRIETARY DOCUMENTS AND CONFIDENTIALITY
24.1 All information, documents, and electronic media furnished by the Owner to the
Contractor belong to the Owner; are considered proprietary and confidential;
are furnished solely for use on the Owner's Project; shall be kept confidential
by the Contractor; and shall not be used by the Contractor on any other project
or in connection with any other person or entity, unless disclosure or use
thereof in connection with any matter other than services rendered to the
Owner hereunder is specifically authorized in writing by the Owner in advance.
The Owner hereby grants to the Contractor a limited license to use and
reproduce applicable portions of the Contract Documents necessary for
execution of the Project. All copies made under this license shall bear the
statutory copyright notice, if any, shown on the documents.
24.2 All information, documents, and electronic media prepared by or on behalf of
the Contractor for the Project are the sole property of the Owner free of any
retention rights of the Contractor. The Contractor hereby grants to the Owner
an unconditional right to use, for any purpose whatsoever, any information,
documents or electronic media prepared by or on behalf of the Contractor for
the Project, free of any copyright claims, trade secrets or other proprietary
rights with respect to such documents.
24.3 The Contractor shall not disclose any information it receives from the Owner to
any other person or entity except to the extent necessary to allow it to perform
its duties under this Contract for General Construction Services.
24.4 Because it is difficult to separate proprietary and confidential information from
that which is not, the Contractor shall instruct its employees and agents to
regard all information which is not in the public domain as information which is
proprietary and confidential.
24.5 Submission or distribution of documents to meet official regulatory
requirements or for other required purposes in connection with the Project is
not to be construed as publication in derogation of the Owner's common law
copyrights or other reserved rights.
ARTICLE 25
INSURANCE REQUIREMENTS
25.1 The Contractor shall provide the Insurance as described in Exhibit D.
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ARTICLE 26
OWNER'S RIGHT TO STOP PROJECT
26.1 If the Contractor fails or refuses to perform or fails to correct defective work as
required, or persistently fails to carry out the work in accordance with the
Contract for General Construction Services, the Owner may, by written notice,
order the Contractor to cease and desist in performing the work or any portion
of the work until the cause for the order has been eliminated to the satisfaction
of the Owner. Upon receipt of such instruction, the Contractor shall
immediately cease and desist as instructed by the Owner and shall not proceed
further until the cause for the Owner's order has been corrected, no longer
exists, or the Owner instructs that the work may resume.
26.1.1 The Contractor shall not be entitled to an adjustment in the time for
performance or the Contract Amount under this clause since such stoppages
are considered to be the fault of the Contractor.
26.1.2 The right of the Owner to stop work shall not give rise to a duty on the part of
the Owner to exercise this right for the benefit of the Contractor or others.
26.1.3 In the event the Owner issues instructions to cease and desist, and in the
further event that the Contractor fails and refuses with seven (7) calendar days
to provide adequate assurance to the Owner that the cause of such instructions
will be eliminated or corrected, then the Owner shall have the right, but not the
obligation, to carry out the work or any portion of the work with its own forces,
or with the forces of another Contractor, and the Contractor shall be
responsible for the cost of performing such work by the Owner.
26.1.4 The rights set forth herein are in addition to, and without prejudice to, any other
rights or remedies the Owner may have against the Contractor.
ARTICLE 27
TERMINATION OR SUSPENSION OF CONTRACT
27.1 The Owner may terminate this Contract for General Construction Services for
cause if the Contractor materially breaches this Contract for General
Construction Services by:
27.1.1 Refusing, failing or being unable to properly manage or perform work on the
Project;
27.1.2 Refusing, failing or being unable to supply the Project with sufficient numbers
of workers, properly skilled workers, proper materials, or maintain applicable
schedules;
27.1.3 Refusing, failing or being unable to make prompt payment to subcontractors or
suppliers;
27.1.4 Disregarding laws, ordinances, rules, regulations or orders of any public
authority having jurisdiction over the Project;
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27.1.5 Refusing, failing or being unable to substantially perform in accordance with the
terms of the Contract for General Construction Services as determined by the
Owner, or as otherwise defined elsewhere herein;
27.1.6 Refusing, failing or being unable to substantially perform in accordance with the
terms of any other agreement between the Owner and Contractor.
27.2 Upon the occurrence of any of the events described in Paragraph 27.1, the
Owner may give written notice to the Contractor setting forth the nature of the
default and requesting cure within seven (7) calendar days from the date of the
notice. At any time thereafter, if the Contractor fails to initiate the cure or if the
Contractor fails to expeditiously continue such cure until complete, the Owner
may g ive written notice to the Contractor of immediate termination, and the
Owner, without prejudice to any other rights or remedies, may take any or all of
the following actions:
27.2.1 Complete all or any part of the Project, including supplying workers, material
and equipment which the Owner deems expedient to complete the Project;
27.2.2 Contract with others to complete all or any part of the Project, including
supplying workers, material and equipment which the Owner deems expedient
to complete the Project;
27.2.3 Take such other action as is necessary to correct such failure;
27.2.4 Take possession of all materials, tools, construction equipment and machinery
on the Site owned or leased by the Contractor;
27.2.5 Directly pay the Contractor's subcontractors and suppliers compensation due
to them from the Contractor;
27.2.6 Finish the Project by whatever method the Owner may deem expedient;
27.2.7 Require the Contractor to assign the Contractor's right, title and interest in any
or all of Contractor's subcontracts or orders to the Owner.
27.3 If the Owner terminates the Contract for General Construction Services for
cause, and the Owner takes possession of all materials, tools, construction
equipment and machinery on the Site owned or leased by the Contractor, the
Contractor's compensation shall be increased by fair payment, either by
purchase or rental at the election of the Owner, for any materials, tools,
construction equipment and machinery items retained, subject to the Owner's
right to recover from the Contractor the Owner's damages resulting from the
termination.
27.4 If the Owner terminates this Contract for General Construction Services for
cause, and it is subsequently determined by a court of competent jurisdiction
that such termination was without cause, then in such event, said termination
shall be deemed a termination for convenience as set forth in Paragraph 27.6.
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27.5 The Contractor may terminate this Contract for General Construction Services
for cause if the Owner materially breaches this Contract for General
Construction Services by:
27.5.1 Refusing, failing or being unable to make prompt payment to the Contractor
without just cause;
27.5.2 Disregarding laws, ordinances, rules, regulations or orders of any public
authority having jurisdiction over the Project; or refusing, failing or being unable
to substantially perform in accordance with the terms of this Contract for
General Construction Services or any other agreement between the Owner and
the Contractor.
27.5.3 Upon the occurrence of any of the events described in Paragraph 27.5, the
Contractor may give written notice to the Owner setting forth the nature of the
default and requesting cure within seven (7) calendar days from the date of
notice. If the Owner fails to cure the default within seven (7) calendar days, the
Contractor, without prejudice to any rights or remedies, may give written notice
to the Owner of immediate termination.
27.6 The Owner may at any time give written notice to the Contractor terminating
this Contract for General Construction Services or suspending the Project, in
whole or in part, for the Owner's convenience and without cause. If the Owner
suspends the Project for convenience, the Contractor shall immediately reduce
its staff, services and outstanding commitments in order to minimize the cost of
suspension.
27.7 If this Contract For Construction is terminated by the Contractor pursuant to
Paragraph 27.5; terminated by the Owner pursuant to Paragraph 27.6; or
suspended more than three months by the Owner pursuant to Paragraph 27.6,
the Owner shall pay the Contractor specified amounts due for work actually
performed prior to the effective termination date and reasonable costs
associated with termination. The Owner may agree to additional
compensation, if any, due to the Contractor. Absent agreement on the
additional amount due the Contractor, the Owner shall pay the Contractor:
27.7.1 Reasonable costs incurred in preparing to perform the terminated portion of the
Project, and in terminating the Contractor's performance, plus a fair and
reasonable allowance for overhead and profit thereon (such profit shall not
include anticipated profit or consequential damages); provided, however, that if
it appears that the Contractor would not have profited or would have sustained
a loss if the Project had been completed, no profit shall be allowed or included,
and the amount of compensation shall be reduced to reflect the anticipated
rates of loss, if any;
27.7.2 Reasonable costs of settling and paying claims arising out of the termination of
subcontracts or supplier orders. These costs shall not include amounts paid in
accordance with other provisions hereof.
27.8 If this Contract for General Construction Services is terminated by the Owner
for cause pursuant to Paragraph 27.1, no further payment shall be made to the
Contractor until Final Completion of the Project. At such time, the Contractor
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shall be paid the remainder of the Contract Amount less all costs and damages
incurred by the Owner as a result of the default of the Contractor, including
liquidated damages applicable thereto. The Contractor shall additionally
reimburse the Owner for any additional costs or expenses incurred.
27.9 Irrespective of the reason for termination or the party terminating, the total sum
paid to the Contractor shall not exceed the Contract Amount, as properly
adjusted, reduced by the amount of payments previously made and penalties
or deductions incurred pursuant to any other provision of this Contract for
General Construction Services, and shall in no event include duplication of
payment.
27.10 Irrespective of the reason for termination or the party terminating, if this
Contract for General Construction Services is terminated, the Contractor shall,
unless notified otherwise by the Owner,
27.10.1 Immediately stop work;
27.10.2 Terminate outstanding orders and subcontracts;
27.10.3 Settle the liabilities and claims arising out of the termination of subcontracts
and orders;
27.10.4 Transfer title and deliver to the Owner such completed or partially completed
work, and, if paid for by the Owner, materials, equipment, parts, fixtures,
information and such contract rights as the Contractor has.
27.11 The right to terminate or suspend the Project shall not give rise to a duty on the
part of either the Owner or the Contractor to exercise that right for the benefit of
the Owner, the Contractor or any other persons or entities.
27.12 If the Contractor fails to file a claim within one (1) year from the effective date of
termination, the Owner shall pay the Contractor only for services actually
performed and expenses actually incurred prior to the effective termination
date.
ARTICLE 28
APPLICABLE LAW AND DISPUTE RESOLUTION
28.1 This Contract for General Construction Services shall be deemed to be entered
into in and shall be interpreted under the laws of the state of Georgia.
28.2 Except as expressly prohibited by law:
28.2.1 All legal actions hereunder shall be conducted only in Georgia state court or
Georgia federal court districts and having subject matter jurisdiction over the
matter in controversy; except that any final judgment may be enforced in other
jurisdictions in any manner provided by law;
28.2.2 The choice of jurisdiction and venue described in the preceding paragraph shall
be mandatory and not permissive in nature, thereby precluding the possibility of
litigation or trial in any jurisdiction or venue other than that specified herein;
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28.2.3 The parties waive any right to assert the doctrine of forum non conveniens or to
object to venue;
28.3 In case of any dispute, claim, question or disagreement arising from or relating
to the Project or arising out of this Contract for General Construction Services
or the breach thereof, the parties shall first attempt resolution through mutual
discussion.
28.4 If the parties cannot resolve any dispute, claim, question, or disagreement
arising from or relating to the Project or arising out of this Contract for General
Construction Services or the breach thereof through mutual discussion, as a
condition precedent to any litigation, the parties shall in good faith participate in
private, non - binding facilitative mediation seeking a just and equitable solution
satisfactory to all parties.
28.4.1 All parties to mediation shall promptly provide all other parties to the mediation
with copies of essential documentation relevant to the support or defense of the
matter being mediated.
28.4.2 The parties shall not be required to mediate for a period greater than ninety
(90) calendar days unless otherwise agreed to in writing by the parties. The
parties shall share equally any administrative costs and fees of such
proceedings, but shall each be responsible for their own expenses otherwise
incurred.
28.4.3 In the event that the statute of limitations would run during the required
mediation period, either party may institute litigation so as to avoid the running
of such statute upon the condition that such party immediately seek a stay of
such litigation pending the conclusion of the mediation period.
28.4.4 During the course of mediation, any party to the mediation may apply for
injunctive relief from any court of competent jurisdiction until the mediation
period expires or the dispute is otherwise resolved.
28.4.5 The Owner, the Architect, the Contractor, and any other parties involved in any
way in the design or construction of the Project are bound, each to each other,
by this requirement to mediate prior to commencement of any litigation,
provided that they have signed this Contract for General Construction Services
or an agreement that incorporates this Contract for General Construction
Services by reference or signed any other agreement which binds them to
mediate. Each such party agrees that it may be joined as an additional party to
a mediation involving other parties under any such agreement. In the case
where more than one mediation is begun under any such agreement and any
party contends that the mediations are substantially related, the mediations
may be conducted by the mediator selected in the first mediation which was
commenced.
28.5 Neither party to this Contract for General Construction Services shall enter into
any contract with regard to the Project which directly or indirectly gives the right
to resolve any dispute with, involving, or affecting the other to any other person
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or legal entity which is in conflict with the dispute resolution procedures
required by this Article.
28.6 In case of a dispute relating to the Project, or arising out of this Contract for
General Construction Services, no party to this Contract for General
Construction Services shall be required to participate in or be bound by, any
arbitration proceedings.
28.7 The Owner and the Contractor agree that pending the resolution of any
dispute, controversy, or question, the Owner and the Contractor shall each
continue to perform their respective obligations without interruption or delay,
and the Contractor shall not stop or delay the performance of the Project.
ARTICLE 29
DAMAGES AND REMEDIES
29.1 The Contractor shall, at its expense, promptly correct, repair, or replace all
goods, products, materials, systems, labor and services which do not comply
with the warranties and guarantees set forth in this Contract for General
Construction Services, or any other applicable warranty or guarantee.
29.2 The Contractor shall promptly reimburse the Owner for any expenses or
damages incurred by the Owner as a result of the Contractor's failure to
substantially perform the work in accordance with the terms of this Contract for
General Construction Services; breach of the warranties and guarantees set
forth in this Contract for General Construction Services or any other applicable
warranty or guarantee; or other deficiencies or omissions of the Contractor.
29.3 The Owner's selection of one or more remedies for breach of this Contract for
General Construction Services contained herein shall not limit the Owner's right
to invoke any other remedy available to the Owner under this Contract for
General Construction Services or by law.
29.4 The Contractor shall not be entitled to, and hereby waives any monetary claims
for or damages arising from or related to, lost profits, lost business
opportunities, unabsorbed overhead or any indirect consequential damages.
29.5 The Owner is entitled to interest on all amounts due from the Contractor that
remain unpaid thirty (30) days after the amount is deemed due, whether as a
result of a resolution of a dispute or otherwise. Any such interest shall be
calculated by the same method as set forth in Article 7.13.
ARTICLE 30
MISCELLANEOUS PROVISIONS
30.1 This Contract for General Construction Services represents the entire and
integrated agreement between the Owner and the Contractor, and supersedes
all prior negotiations, representations or agreements, either written or oral, for
the Project. This Contract for General Construction Services may be amended
only by written instruments signed by both the Owner and the Contractor, and
is subject to such reasonable modifications as may be required by the Owner's
lenders or insurers.
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30.2 If any provision of this Contract for General Construction Services, or the
application thereof, is determined to be invalid or unenforceable, the remainder
of that provision and all other provisions shall remain valid and enforceable.
30.3 No provision of this Contract for General Construction Services may be waived
except by written agreement of the parties. A waiver of any provision on one
occasion shall not be deemed a waiver of that provision on any subsequent
occasion, unless specifically stated in writing. A waiver of any provision shall
not affect or alter the remaining provisions of this Contract for General
Construction Services.
30.4 No failure of the Owner to insist upon strict compliance by the Contractor with
any provision of this Contract for General Construction Services shall operate
to release, discharge, modify, change or affect any of the Contractor's
obligations.
30.5 This Contract for General Construction Services shall inure solely to the benefit
of the parties hereto and their successors and assigns, and, except as
otherwise specifically provided in this Contract for General Construction
Services, nothing contained in this Contract for General Construction Services
is intended to or shall create a contractual relationship with, or any rights or
cause of action in favor of, any third party against either the Owner or the
Contractor.
30.6 All provisions of this Contract for General Construction Services which contain
continuing obligations shall survive its expiration or termination.
30.7 Except as prohibited by applicable law, neither party shall assign any or all of
its benefits or executory obligations under this Contract for General
Construction Services without the approval of the other party, except in case of
assignment solely for security or assignment by the Owner to a Related Party
of the Owner, or except as otherwise specifically provided for in this Contract
for General Construction Services in case of default. The Owner and the
Contractor bind their successors and assigns to the other party to this Contract
for General Construction Services.
30.8 Upon the request of the Owner, the Contractor shall execute documents
required by the Owner's lender whereby the Contractor agrees that in the event
of the Owner's default under, or the termination of, any construction loan
agreement, the Contractor will complete the services required by this Contract
for General Construction Services under the terms and conditions contained
herein so long as the lender fulfills the obligations of the Owner toward the
Contractor as set forth in this Contract for General Construction Services.
30.9 The Owner and Contractor agree to endeavor to provide written notification and
to negotiate in good faith prior to litigation concerning claims, disputes, and
other matters in question arising out of or relating to this Agreement or the
breach thereof.
30.10 Nothing herein contained shall be construed to require the parties to provide
written notifications or engage in negotiations prior to the institution of litigation
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nor to submit for alternative dispute resolution by a third party or parties any
such claim, dispute or other matter in question between the parties, but the
parties may by mutual agreement submit any claim, dispute or other matter at
issue to arbitration, or such other alternative dispute resolution procedure as
may be mutually agreed upon between the parties.
30.11 Whenever renderings, photographs of renderings, photographs of models,
photographs, drawings, announcements, or other illustration or information of
the Project are released for public information, advertisement or publicity,
appropriate and proper credit for architectural and other services shall be given
to the Architect and Owner respectively.
30.12 The payment of any sums by the Owner shall not constitute a waiver of any
claims for damages by the Owner for any breach of the Agreement by the
Contractor.
30.13 This Agreement shall be governed by the laws of the State of Georgia, U.S.A.
30.14 Except where specifically stated otherwise, all periods of time stated in terms of
days shall be considered periods calculated in calendar days.
30.15 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.
30.16 For the purpose of this Agreement unless the context clearly indicates
otherwise, the singular includes the plural, and the plural includes the singular.
30.17 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.
ARTICLE 31
INDEMNIFICATION
31.1 Notwithstanding anything to the contrary contained herein, the Contractor shall
indemnify and hold harmless the Owner, the Owner's Representative, 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 the Contractor's performance or failure to perform its obligations under
this Agreement and any claim, damage, Toss or expense attributable to bodily
injury, sickness, disease or death, or to injury to or destruction of personal
and /or real property including the loss of use resulting there from and caused
by any negligent act or omission of the Contractor, anyone directly or indirectly
employed by the Contractor or anyone for whose acts the Contractor 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.
31.1.1 To the fullest extent permitted by law, the Contractor, for itself and for its
subcontractors and suppliers, and the respective agents, employees and
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servants of each, expressly waives any and all immunity or damage limitation
provisions available to any agent, employee or servant under any Workers or
Workmen's compensation acts, disability benefit acts or other employee benefit
acts, to the extent such statutory or case law would otherwise limit the amount
recoverable by the Owner or the Owner's Related Parties pursuant to the
indemnification provision contained in the paragraph above.
31.2 Except as otherwise set forth in this Agreement, the Contractor, the Architect,
the Owner's Representative, 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, and strikes. The Owner shall
not be liable to the Contractor for acts or failures to act by the Architect.
31.3 To the fullest extent permitted by law, the Contractor shall defend, protect, hold
harmless, and indemnify the Owner, the Owner's Representative, and the other
Owner Consultant's from and against any and all liability, loss, claims,
demands, suits, costs, fees and expenses (including actual fees and expenses
of attorneys, expert witnesses, and other consultants), by whomsoever brought
or alleged, for infringement of patent rights, copyrights, or other intellectual
property rights, except with respect to designs, processes or products of a
particular manufacturer expressly required by the Owner or Architect in writing.
If the Contractor has reason to believe the use of a required design, process or
product is an infringement of a patent, the Contractor shall be responsible for
such loss unless such information is promptly given to the Owner.
ARTICLE 32
CONTRACTOR'S REVIEWS AND EVALUATIONS
32.1 The Contractor acknowledges its continuing duty to review and evaluate the
Contract Documents during the performance of its services and shall
immediately notify the Architect about any problems, conflicts, defects,
deficiencies, inconsistencies or omissions it discovers in or between the
Contract Documents; and variances it discovers between the Contract
Documents and applicable laws, statutes, building codes, rules and
regulations.
32.2 If the Contractor performs any work which it knows involves a recognized
problem, conflict, defect, deficiency, inconsistency or omission in the Contract
Documents; or a variance between the Contract Documents and requirements
of applicable laws, statutes, building codes, rules and regulations, without
notifying the Architect and prior to receiving written authorization from the
Architect to proceed, the Contractor shall be responsible for the consequences
of such performance.
32.3 The drawings are generally drawn to scale; however, the figured dimensions or
notes thereon shall govern. Before ordering any materials or doing any
Project, the Contractor and Subcontractors shall verify all measurements at the
Site and shall be responsible for the correctness of same. Any discrepancies
shall be reported in writing to the Architect prior to proceeding with the work.
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No extra charge or compensation will be considered due to differences
between actual measurements and dimensions indicated on drawings, if such
differences do not result in a change in the scope of work or if the Architect
failed to receive written notice before the work was performed.
32.4 Prior to signing this Contract for General Construction Services, the Contractor
has:
32.4.1 Visited the Site and become familiar with local conditions under which the
Project is to be constructed and operated;
32.4.2 Reviewed and familiarized itself with the Site survey and any existing structures
on the Site, and gathered all other information necessary for a full
understanding of the Project;
32.4.3 Reviewed all available as -built and record drawings, plans and specifications )if
applicable);
32.4.4 Thoroughly inspected the on -site conditions, including structures and other
features to be modified or remodeled, prior to submission of bid, but in all
events prior to signing this Contract for General Construction Services.
32.5 Claims resulting from the Contractor's failure to familiarize itself with the Site or
pertinent documents shall be deemed waived.
ARTICLE 33
PROHIBITION AGAINST CONTINGENT FEES
33.1 The Contractor by execution of this Contract warrants that it has not employed
or retained any company or person, other than a bona fide employee working
solely for it, to solicit or secure this Contract and that he has not paid or agreed
to pay any person, company, corporation, individual, or firm, other than a bona
fide employee working solely for him, any fees, commission, percentage, gift,
or other consideration contingent upon or resulting from the award or making of
this Contract.
ARTICLE 34
EXHIBITS AND ATTACHMENTS
34.1 Attached hereto and incorporated herein as part of this Contract are Exhibit A —
Scope of Work, Exhibit B — Provisional Project Schedule, Exhibit C — Initial List
of Drawings, Specifications, and Addendums, Exhibit D — Insurance, Exhibit E
— Asbestos - Statement of Declaration, and Exhibit F — Non Collusion Affidavit.
ARTICLE 25
ENTIRE AGREEMENT
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35.1 This Agreement and its Exhibits and Attachments represent the entire and
integrated agreement between the Owner and the Contractor and it
supersedes all prior communications, discussions, negotiations,
understandings, representations or agreements, either written or oral. This
Agreement may be amended only by written instrument signed by both Owner
and Contractor
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: Contractor:
Augusta, Georgia Weinberger's Business Interiors
A (Signature) (Seal) (ignature) (Seal)
lJ/ / Deke Copenhaver R f,-/a44,ro /,-.'
(Name) (Name)
Mayor cA4
(Title) (Title)
530 Greene Street 3137 Washington Road
(Street Address - No PO Box) (Street Address - No PO Box)
Augusta, Georgia 30911 Augusta, GA 30907
(City, State, Zip) (City, State, Zip)
/0-1_6 1L/1
Date of Signature Date o Signat
r
a
(Witnes )/'
r - t
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Exhibit A
Scope of Work
The Contractor shall provide a complete installation of all Furniture, Furnishings, and
Equipment as follows:
This Contract for Furniture, Furnishings and Equipment shall include the supplying,
warehousing as needed and installation of the loose and fixed furniture, furnishings and
equipment as indicated in the project manual and as further defined in the Project
Manual. The Bidders are to refer to the entire set of Bidding Documents for a complete
understanding of the scope of work and contract terms and conditions.
The Bid Specifications Bid Item #10 -084A is hereby made a part of these
documents to the same extent as if herein written out in full.
The scope of work included in this contract is as follows and according to the
Quantity Breakdown included in Attachment A:
Section # Comments
1 $ 1,179,066.46
1A $ 1,582.32 Items E and J
2A $ 419,923.58
4 $ 1,621.10
$ 1,602,193.46
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Exhibit B
Provisional Project Schedule
Activity Start Finish
Notice To Proceed 11- Oct -10 11- Oct -10
Construction Phase 25- Jan -10 15- Mar -10
Date of Substantial Completion 15- Mar -10 15- Mar -10
Punchlist / Closeout 16- Mar -10 01- Apr -10
Final Completion 01- Apr -10 01- Apr -10
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Exhibit C
Initial List of Drawings, Specifications, and Addendums
Drawings and Specification Sections are incorporated and are described as follows:
1. Front -End Specifications and General Conditions
a. 010010 Project Directory
b. 012200 Unit Prices
c. 012513 Product Substitution Procedures
d. 012900 Payment Procedures
e. 012973 Schedule of Values
f. 013113 Project Coordination
g. 013119 Project Meetings
h. 013216 Construction Progress Schedules and Reports
i. 013300 Submittal Procedures
j. 015000 Temporary Facilities and Controls
k. 016500 Product Delivery, Storage, and Handling
I. 017329 Cutting and Patching
m. 017400 Cleaning and Waste Management
n. 017800 Closeout Submittals
o. 017823.16 Maintenance Data
p. 017834 Warranties and Bonds
q. 017839 Project Record Documents
2. Contract Agreement
3. Furniture Specifications
a. General Requirements
b. 00420 Statement of Bidder's Qualifications
c. Section 1 General Furnishings- Performance Specifications
General Furnishings- Product Specifications
d. Section 2 Panel Systems Workstation- Performance
Specifications Panel Systems Workstation - Product Specifications
& Workstation Typicals
e. Section 3 Specialty Storage- Performance Specifications
Specialty Storage - Product Specifications
f. Section 4 Miscellaneous Items
4. Drawings
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a. 1 -111.1 - Furniture Plan —First Floor
b. 1 -111.2 - Furniture Plan —First Floor
c. 1 -111.3 - Furniture Plan —First Floor
d. 1- 112.1- Furniture Plan- Second Floor
e. 1- 112.2- Furniture Plan- Second Floor
f. 1- 112.3- Furniture Plan- Second Floor
g. 1- 113.1- Furniture Plan -Third Floor
h. 1- 113.2- Furniture Plan -Third Floor
i. 1- 114.1- Furniture Plan -Fourth Floor
j. 1- 114.2- Furniture Plan -Fourth Floor
5. Bid Form Breakdown
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Exhibit D
Insurance
Insurance Requirements
1. Statutory Projecter's Compensation Insurance
a) Employers Liability:
Bodily Injury by Accident - $100,000 each accident
Bodily Injury by Disease - $500,000 policy limit
Bodily Injury by Disease - $100,000 each employee
2. Comprehensive General Liability Insurance
a) $1,000,000 limit of liability per occurrence for bodily injury and property
damage
b) The following additional coverages must apply:
• 1986 (or later) ISO Commercial General Liability Form
• Additional Insured Endorsement (Form B CG 20 10)
• Completed Operations Coverage
• Blanket Contractual Liability (included in 1986 or later forms)
• Broad Form Property Damage (included in 1986 or later forms)
• Severability of Interest (included in 1986 or later forms)
• Underground, explosion, and collapse coverage (included in 1986 or
later form)
• Personal Injury (deleting both contractual and employee exclusions)
• Incidental Medical Malpractice
• Hostile Fire Pollution Wording
3. Auto Liability Insurance
a) $500,000 limit of liability per occurrence for bodily injury and property
damage
b) Comprehensive form covering all owned, non - owned, leased, hired and
borrowed vehicles
c) Additional Insured Endorsement
d) Contractual Liability
4. Excess Liability Insurance
a) Excess Liability Insurance Limit $10,000,000 per occurrence /
$10,000,000 per aggregate.
• Insurance company must be authorized to do business in the State of
Georgia
5. Augusta Richmond County, the Owner's Representative, and any other
applicable Authority should be shown as an additional insured on General
Liability and Auto Liability policies. Certificate Holder should read: Augusta
Richmond County
6. Insurance Company, except Worker's Compensation carrier, must have an A.M.
Best Rating of A- or higher. Certain Worker's Comp funds may be acceptable by
the approval of the Risk Management Division. European markets including
those based in London and domestic surplus lines markets that operate on a
non - admitted basis are exempt from this requirement provided that the
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contractor's broker /agent can provide financial data to establish that a market is
equal to or exceeds the financial strengths associated with the A.M. Best's rating
of A- or better.
7. Insurance Company must be licensed to do business by the Georgia Department
of Insurance. * See above note regarding Contractor Liability
8. Certificates of Insurance, and any subsequent renewals, must reference specific
bid /contract by project name and project/bid number.
9. The Contractor shall agree to provide complete certified copies of current
insurance policy(ies) if requested by the County to verify the compliance with
these insurance requirements.
10. All insurance coverages required to be provided by the Contractor will be primary
over any insurance program carried by the County.
11. The Contractor shall incorporate a copy of the insurance requirements as herein
provided in each and every Subcontractor and each and every Sub -
Subcontractor in any tier, and shall require each and every Subcontractor and
each and every Sub - Subcontractor of any tier to comply with all such
requirements. The Contractor agrees that if for any reason the Subcontractor or
Sub - Subcontractor fails to procure and maintain insurance as required, all such
required insurance shall be procured and maintained by the Contractor at the
Contractor's expense.
12. The Contractor, and their Subcontractor's and each and every Sub -
Subcontractor shall not commence any work of any kind under this Contract until
all insurance requirements contained in this Contract have been complied with
and until evidence of such compliance satisfactory to County as to form and
content has been filed with the County. The Acord Certificate of Insurance or a
pre- approved substitute is the required form in all cases where reference is made
to a Certificate of Insurance or an approved substitute.
13. The Contractor shall agree to waive all rights of subrogation against the County,
the County Commissioners, its officers, officials, employees, the Owner's
Representatives and volunteers from losses arising from work performed by the
Contractor for the County.
14. Builders Risk Insurance - All Risk Contractors' Equipment and Contents
Insurance covering owned, used and leased equipment, tools, supplies and
contents required to perform the services called for in the Contract. The
coverage must be for full replacement cost. The County will be included as a
Loss Payee in this coverage for County owned equipment, tools, supplies and
contents. Contractor's Risk Insurance which includes without duplication, but is
not limited to, fire (with extended coverage), theft, vandalism, malicious mischief,
collapse, earthquake, flood, windstorm, false work, testing and startup, temporary
buildings and debris removal; and names the Owner, the Owner's
Representative, and the Owner's Related Parties, with coverage for one
hundred (100 %) percent of the insurable value of the General Contractor's scope
of the Project, and a per -claim deductible of $10,000.00.
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15. The Contractor shall make available to the County, through its records or records
of their Insurer, information regarding a specific claim. Any loss run information
available from the Contractor or their insurer will be made available to the County
upon their request.
16. Compliance by the Contractor and their Subcontractor's and each and every
Sub - Subcontractor with the foregoing requirements as to carrying insurance shall
not relieve the Contractor and their Subcontractor's and each and every Sub -
Subcontractor of their liability provisions of the Contract.
17. The Contractor and their Subcontractor's and each and every Sub - Subcontractor
are to comply with the Occupational Safety and Health Act of 1970, Public Law
91 -956, and any other laws that may apply to this Contract.
18. The Contractor shall at a minimum apply risk management practices accepted by
the contractor's industry.
19. Evidence of such insurance shall be furnished to the Owner, and the Owner shall
receive forty -five (45) 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 Contractor 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.
20. The Contractor shall deliver to the Owner a Certificate of Insurance for its
General Liability and Excess Liability coverage annually, so long as it is required
to maintain such coverage required by this Agreement.
21. The Contractor shall maintain in force during the performance of this contract and
for one (1) year after final completion of the Project, the General Liability and
Excess Liability insurance coverage referenced above.
22. The Contractor shall maintain in force during the performance of this contract and
for one (1) year after final completion of the Project, the Comprehensive
Commercial General Liability Insurance and the Automobile Liability Insurance.
23. The Owner shall be under no obligation to review any Certificates of Insurance
provided by the Contractor or to check or verify the Contractor's compliance with
any or all requirements regarding insurance imposed by the Contract
Documents. The Contractor is fully liable for the amounts and types of insurance
required herein and is not excused should any policy or Certificate of Insurance
provided by the Contractor not comply with any or all requirements regarding
insurance imposed by the Contract Documents.
24. Should the Contractor fail to provide and maintain in force any insurance or
insurance coverage required by the contract documents or by law, or should a
dispute arise between owner and any insurance company of the Contractor over
policy coverage or Limits of Liability as required herein, the Owner shall be
entitled to recover from the Contractor all amounts payable, as a matter of law, to
Owner or any of its agents, had the required insurance or insurance coverage
been in force. Said recovery shall include, but is not limited to interest for the
loss of use of such amounts of money, plus all attorney's fees, costs and
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expenses incurred in securing such determination and any other consequential
damages arising out of the failure of the Contractor or insurance company to
comply with the provisions of the Contract Documents, or any policy required
hereby, or any other requirements regarding insurance imposed by law. Nothing
herein shall limit any damages for which the Contractor is responsible as a
matter of law.
25. The Contractor shall deliver to the Owner two (2) original certificates of
insurance, signed by the Insurer's Authorized Representative, with the Policy
Numbers clearly identified on the certificates for each Policy. The Policy effective
dates should be on or before the date that the contract was signed.
26. Compliance with insurance requirements shall not relieve the Contractor of any
responsibility to indemnify the Owner for any liability to the Owner as specified in
any other provision of this Contract for General Construction Services, and the
Owner shall be entitled to pursue any remedy in law or equity if the Contractor
fails to comply with the contractual provisions of this Contract for General
Construction Services. Indemnity obligations specified elsewhere in this Contract
for General Construction Services shall not be negated or reduced by virtue of
any insurance carrier's denial of insurance coverage for the occurrence or event
which is the subject matter of the claim; or refusal to defend any named insured.
27. As it pertains to Builders Risk Insurance - The Contractor hereby releases and
discharges the Owner, the Architect, the Owner's Representative, and the
Owner's Related Parties of and from all liability to the Contractor, and to anyone
claiming by, through or under the Contractor, by subrogation or otherwise, on
account of any loss or damage to tools, machinery, equipment or other property,
however caused.
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Exhibit E
Asbestos - Statement of Declaration
ASBESTOS
STATEMENT OF DECLARATION
Augusta- Richmond County Judicial Center
Facility
This statement is to certify that I have not installed any asbestos containing materials
and /or products in the preparation and /or the construction of the referenced structure.
Furthermore, I certify to the best of my knowledge, no asbestos containing materials
have been used in the construction of the structure or facility.
RESPONSIBLE PARTIES:
-7-4)
Contractor's Signature Da e
-- 1 z s (c v
Owner's Si nature Date
10 i io
f
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Exhibit F
Non Collusion Affidavit
NON COLLUSION AFFIDAVIT
Date:
k)//W/
Project: Augusta Richmond County Judicial Center
Project Approx. 183,000 sf four -story Courthouse
Description:
Services Furniture
Provided:
State of: Georgia
County of: Richmond
I, / ,thi,thcovei being first duly sworn, deposes and says that he /she is
�-� of the party making the foregoing Proposal or Bid; that such Proposal or
Bid is genuine and not collusive or sham; that said Proposer or Bidder has not colluded,
conspired, connived, or agreed, directly or indirectly, with any Proposer or Bidder or
person, to put in a sham Proposal or Bid, or that such other person refrain from
proposing or bidding, and has not in any manner, directly or indirectly sought by
agreement or collusion, or communication or conference, with any person, to fix the
Proposal Fee or Bid Price of affiant or any other Proposer or Bidder, or to fix any
overhead, profit or cost element of said Proposal Fee or Bid Price, or of that of any other
Proposer or Bidder, or to secure any advantage against the Augusta Richmond County,
or any person interested in the proposed Contract; and that all statements in said
Proposal or Bid are true; and further, that such Proposer or Bidder has not directly or
indirectly submitted this Proposal or Bid, or the contents thereof, or divulged information
or data relative thereto to any association or to any member or agent thereof.
Contractor:
Weinberger's Business Interiors
ignature) eal)
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Exhibit G
Unit Prices
Unit Price Schedule
Unit Price (each)
Add /Deduct
The Unit Prices provided in the Bid Breakdown Form is hereby made a part of
these documents to the same extent as if herein written out in full. Also, see
Attachment A.
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