HomeMy WebLinkAboutALTERNATIVE CONSTRUCTION & ENVIRNMENTAL SOLUTIONS TO PROVIDE ENG SERVICES MUN. BLDG RENOVATIONS AGREEMENT FOR
ENVIRONMENTAL ENGINEERING SERVICES
BETWEEN
Augusta, Georgia, a political subdivision of the State of Georgia
Acting by and through the
Augusta Richmond County Commission
Hereinafter Referred to as Owner
AND
Alternative Construction & Environmental Solutions, Inc.
Hereinafter Referred to as Environmental Consultant
SPLOST VI PROJECT:
Environmental Engineering Services for the Augusta, Georgia Municipal Building
DATE:
AGREEMENT FOR ENVIRONMENTAL ENGINEERING SERVICES
TABLE OF CONTENTS
Page
Article 1 Definitions 3
Article 2 Relationship of the Parties 5
Article 3 Basic Services 6
Article 4 Compensation 9
Article 5 Period of Services 11
Article 6 Owner's Responsibilities 11
Article 7 Notices 12
Article 8 Insurance 12
Article 9 Indemnification 13
Article 10 Termination of Agreement 14
Article 11 Dispute Resolution 15
Article 12 Successors /Assignment/Third Parties 16
Article 13 Ownership of Documents/
Confidential Information 16
Article 14 Additional Provisions 16
Attachment A: Project Schedule
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AGREEMENT FOR
ENVIRONMENTAL CONSULTANT SERVICES
AGREEMENT made this day of , 2011, BETWEEN the Owner: Augusta,
Georgia, a political subdivision of the State of Georgia, acting by and through the Augusta
Richmond County Commission and the Environmental Consultant: Alternative
Construction & Environmental Solutions, Inc, for Professional Services in connection with
the Project known as: Environmental Engineering Services for the Augusta, Georgia
Municipal Building.
The Construction Program Manager for the Project is: Heery International, Inc.
The Owner and the Environmental Consultant agree as set forth below:
ARTICLE 1
DEFINITIONS
The following words and phrases where appearing in initial capitalization, shall for the
purposes of this Agreement have the following meanings:
1.1 PROJECT. The Project shall be all environmental services, as described herein,
to be conducted in conjunction with the renovations and modernization of the
Augusta, Georgia Municipal Building located at 530 Greene Street Augusta,
Georgia. Environmental services include assessment of hazardous materials such
as asbestos, lead -based paint and polychlorinated biphenyl (PCB), meetings and
abatement plan preparation.
1.2 SERVICES. The Services to be performed by the Environmental Consultant
under this Agreement shall consist of the Basic Services and any Additional
Services both as defined herein.
1.3 BASIC SERVICES. Basic Services shall consist of environmental services as
described in Article 3, to be performed and provided by the Environmental
Consultant under this Agreement in connection with the Project.
1.4 ADDITIONAL SERVICES. Additional Services shall consist of the environmental
services agreed to be performed by the Environmental Consultant in connection
with the Project, but which are not specifically designated as Basic Services in
Article 3.
1.5 WORK. The Work shall consist of tasks identified in Paragraph 1.1 above.
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1.6 PROJECT DOCUMENTS. The abatement and demolition phase of the Project
shall be completed in accordance with the Project Abatement Plan and
Specifications, which will be prepared by the Environmental Consultant and
approved by the Owner prior to the execution of the Agreement between the
Construction Manager at Risk and the Owner:
1.7 CONSTRUCTION MANAGER at RISK. The Construction Manager at Risk is the
person or entity which enters into an agreement with the Owner to perform the
renovations and modernization on the Project, including, without limitation, the
providing of labor, materials, and equipment necessary for the completion of the
Project. The term "Contractor" means the Construction Manager at Risk or its
authorized representative, but excludes the Construction Program Manager and
the Environmental Consultant.
1.8 BASIC SERVICES COMPENSATION. Basic Services Compensation shall be fees
designated in Article 4 to be paid by the Owner to the Environmental Consultant
in connection with the performance of the Basic Services by the Environmental
Consultant.
1.9 REIMBURSABLE EXPENSES. In connection with Additional Services,
Reimbursable Expenses are those actual expenditures made by the
Environmental Consultant, its employees, or its Professional Consultants in the
interest of the Project including but not limited to, County standard per diem
out -of- pocket expenses for travel and living expenses in connection with the
Project, long distance telephone, expressage, professional consultants (other than
those required for the performance of the Basic Services), and Owner - approved
document reproduction. Pre - approved document reproduction expenses include
expenses incurred for Bidding Documents, exclusive of addenda, and documents
issued for permitting and/or construction.
1.10 OWNER /CONSTRUCTION PROGRAM MANAGER CONTRACT. The
Owner /Construction Program Manager Contract is the agreement between the
Owner and the Construction Program Manager dated May 6, 2004 for the
performance of construction program management services on the Project.
1.11 MASTER SCHEDULE. The Master Schedule is a graphic display of the major
activities, phases, sequences and timing of the major project activities for design,
construction procurement, construction and occupancy.
1.12 CHANGE ORDER. A Change Order is the form of documentation from the Owner
approving and authorizing a modification to the Master Schedule or previously
approved contract documents.
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ARTICLE 2
RELATIONSHIP OF THE PARTIES
2.1 ENVIRONMENTAL CONSULTANT SERVICES. The Environmental Consultant
shall provide professional environmental services for the Project in accordance
with the terms and conditions of this Agreement. The Environmental
Consultant's performance of services shall be as professional consultant to the
Owner to carry out the activities of Project and to provide the technical documents
and supervision to achieve the Owner's Project objectives.
2.2 OWNER REPRESENTATION. The Construction Program Manager is under
separate contract with the Owner to provide construction program management
services. The Construction Program Manager has no environmental
responsibilities of any nature. None of the activities of the Construction Program
Manager supplant or conflict with the services and responsibilities customarily
furnished by the Environmental Consultant or subconsultants in accordance with
generally accepted environmental consulting practices, except as otherwise
modified by this Agreement. The Environmental Consultant understands and
agrees that the Construction Program Manager is the Owner's exclusive
representative to the Environmental Consultant and Contractor insofar as this
Agreement is concerned. All instructions by the Owner to the Environmental
Consultant relating to services performed by the Environmental Consultant will
be issued or made through the Construction Program Manager. All
communications and submittals of the Environmental Consultant to the Owner
and Contractor shall be issued or made through the Construction Program
Manager, unless the Construction Program Manager shall otherwise direct. The
Construction Program Manager shall have the authority to establish procedures,
consistent with this Agreement, to be followed by the Environmental Consultant
and Contractor and to call periodic conferences to be attended by the
Environmental Consultant, and subconsultants, throughout the term of this
Agreement.
2.3 Environmental Consultant understands and agrees that it is not a third party
beneficiary of any contract between the Owner and the Construction Program
Manager or of their performance there under. Environmental Consultant waives
any rights, claims or causes of action it may have as an alleged third party
beneficiary of any such contract or of the performance of the parties there under.
2.4 ENVIRONMENTAL CONSULTANT REPRESENTATION
2.4.1 The Environmental Consultant shall provide a list of all consultants which the
Environmental Consultant intends to utilize relating to the Project. The list shall
include such information on the qualifications of the consultants as may be
requested by the Owner. The Owner, through the Construction Program
Manager, reserves the right to review the consultants proposed, and the
Environmental Consultant shall not retain a consultant to which the Owner,
through the Construction Program Manager, has a reasonable objection.
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2.4.2 The Environmental Consultant shall provide to the Owner, through the
Construction Program Manager, a list of the proposed key project personnel of the
Environmental Consultant and its consultants to be assigned to the Project. This
list shall include such information on the professional background of each of the
assigned personnel as may be requested by the Owner, through the Construction
Program Manager. Such key personnel and consultants shall be satisfactory to
the Owner and shall not be changed except with the consent of the Owner unless
said personnel cease to be in the Environmental Consultant's (or its consultants, if
applicable) employ.
2.5 DIVISION OF RESPONSIBILITIES /SERVICES. The Environmental Consultant
understands and agrees that should the Construction Program Manager provide
the Environmental Consultant with any estimating assistance, cost or time
control recommendations or other consultation, recommendations or suggestions,
any or all such activities on the part of the Construction Program Manager or any
other representative of the Owner shall in no way relieve the Environmental
Consultant of the responsibility of fulfilling its obligations and responsibilities
under this Agreement.
ARTICLE 3
BASIC SERVICES
3.1 SCOPE OF SERVICES
The Project includes a professional hazardous material (HAZMAT) survey of the Augusta,
Georgia Municipal Building, production of an abatement plan and oversight of abatement
work. The Phase II Environmental Assessment must be conducted in accordance with
ASTM E1903- 97(2002). (Available at http:// www .astm.org /Standards/E1903.htm)
The Municipal Building is an approx. 120,800 s.£, 9 story building (excluding the basement)
located at 530 Greene Street. The existing floor plans are included with this package.
Please note that the building is occupied and therefore the testing will be required to take
place after normal business hours. The building will also be occupied during the
renovations and therefore the work including any abatement of hazardous materials will be
done in Phases.
Inspections for asbestos containing materials (ACM) must be conducted in accordance with
CFR 1926.1101, all inspectors must be qualified in accordance with U.S. Environmental
Protection Agency (USEPA) and Georgia State Law and all laboratories must be accredited
for Asbestos Materials that may need to be sampled and tested, including but not limit-
to, ceiling, drywall, joint compound, flooring, insulation, caulking, roofing and flaahing. / `j
Inspections, sampling and testing for lead -based paint must be conducted in accon a f -
with 29 CFR 1926.62, and all other applicable USEPA, Housing and Urban Development
(HUD) and U.S. Occupational Safety and Health Administration (OSHA) regulations. In
the event that any samples contain more than 1.0 mg /cm lead, the area from which the
sample was collected will also need to be tested by the Toxicity Characteristic Leaching
Procedure (TCLP) to ensure resulting demolition debris is disposed of properly.
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Scope of work includes, but is not limited to, HAZMAT survey and testing of the Municipal
Building, preparation of a Remediation Action Plan, intermittent abatement compliance
inspections and professional support of environmental issues that may arise during
abatement and demolition work.
Specific tasks included are:
1. Locate, sample and analyze all suspected asbestos - containing materials
(ACM) in the structures identified herein.
2. Locate, sample and analyze all suspected lead- containing materials (LCM)
in the structures identified herein.
3. Locate and analyze all suspected Polychlorinated Biphenyls (PCB) in the
structures identified herein.
4. Locate and analyze any other suspected hazardous materials in the
identified structures.
5. Produce a HAZMAT Building Survey Report summarizing findings and
recommendations, with individual sections for ACM, LCM and PCB's.
Include type and extent of each hazardous material, an estimated cost for
abatement, and an estimated schedule for abatement.
6. Meet with Owner's Program Manager to discuss Survey Report,
recommendations and preparation of abatement specifications and plans.
7. Prepare bidding /contract documents for demolition contractor, including
specifications, drawings and/or photographs, work procedures, air
sampling, disposal requirements, etc., as required to provide a scope of
work definition which facilitates production of a fixed cost bid by a Georgia
licensed abatement contractor. Such contract documents shall require that
all abatement work be done in accordance with Federal, State and Local
regulations.
8. Attend Demolition Pre - Proposal Conference and subsequent tour of
buildings.
9. Assist in analysis of Bids or Proposals for abatement work.
10. Provide periodic oversight of abatement and remediation activities for
compliance with contract documents.
11. Provide site observation reports of abatement activities and a final
inspection report once all abatement work is completed.
12. Provide professional consulting on an "as needed" basis, for any issue of
environmental concern that arises during building demolition, subsequent
to HAZMAT abatement.
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3.1.1 DELIVERABLES
Two bound copies, and one unbound copy, of the HAZMAT Building Survey
Report shall be submitted to the OWNER's Program Manager.
Two bound sets of Contract Documents shall be submitted to the OWNER's
Program Manager for review.
One final set of reproducible Contract Documents, following OWNER review,
suitable for inclusion in a set of bid documents or an RFP, shall be submitted to
the OWNER's Program Manager.
3.2 ENVIRONMENTAL CONSULTANT'S PROFESSIONAL RESPONSIBILITY
AND STANDARD OF CARE
3.2.1 By execution of this Agreement, the Environmental Consultant warrants that (a)
it is an experienced environmental firm having the skill and the legal and
professional ability necessary to perform all the Services required of it under this
Agreement in connection with the Project contemplated herein; (b) it has the
capabilities and resources necessary to perform its obligations hereunder; and (c)
it is familiar with all current laws, rules and regulations which are applicable to
the Project (such laws, rules and regulations including, but not limited to, all local
ordinances, city, county, state and federal authorities which are applicable to the
Project, and all orders and interpretations by governing public authorities of such
ordinances, requirements, laws, rules and regulations in effect at the time of
commencement of services on the Project), and that all drawings, specifications
and other documents prepared by the Environmental Consultant shall be
prepared in accordance with and shall accurately reflect and incorporate all such
laws, rules and regulations.
3.2.2 The Environmental Consultant hereby represents and agrees that the drawings,
specifications and other documents prepared by it pursuant to this Agreement
shall be complete and functional for the purposes intended, except as to any
deficiencies which are due to causes beyond the control of the Environmental
Consultant.
3.2.3 The Environmental Consultant shall be responsible for any errors, inconsistencies
or omissions in the drawings, specifications, and other documents. while the
Environmental Consultant cannot guarantee the various documents required
herein to be completely free of minor human errors and omissions, it shall be the
responsibility of the Environmental Consultant throughout the period of
performance under this Agreement to use due care with professional competence.
The Environmental Consultant will correct at no additional cost to the Owner any
and all errors and omissions in the drawings, specifications and other documents
prepared by the Environmental Consultant. The Environmental Consultant
further agrees, at no additional cost, to render assistance to the Owner in
resolving problems relating to the design or specified materials.
3.2.4 It is the responsibility of the Environmental Consultant to make certain that all
drawings, specifications and other documents are in accordance with applicable
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laws, statutes, building codes and regulations and that appropriate approvals are
obtained from Federal, State and local governments.
3.3 PROJECT CONFERENCES
Throughout all phases of the Project, the Environmental Consultant and its
consultants shall meet periodically with the Owner and Construction Program
Manager when reasonably requested. Attendees shall be as jointly determined by
the Owner, Construction Program Manager and Environmental Consultant. As a
minimum, regularly scheduled meetings which the Environmental Consultant will
attend include:
1. Project Launch Meeting
2. Assessment Review /Pre- Abatement Plan Meeting
3. Abatement Plan Review Meeting
4. Construction Manager at Risk Pre - Abatement Meeting
ARTICLE 4
COMPENSATION
4.1 BASIC SERVICES COMPENSATION
4.1.1 The Owner shall compensate the Environmental Consultant in accordance with
the terms and conditions of this Agreement, including the following:
4.1.2 For the Basic Services of the Environmental Consultant, Basic Services
Compensation shall be in the not -to- exceed amount of Twenty Five Thousand
Four Hundred and 00 /100's Dollars ($ 25,400.00).
4.1.3 The Basic Services Compensation stated in Paragraph 4.1.1 includes all
compensation and other payments due the Environmental Consultant (manpower,
overhead, profit, expenses, direct costs, etc.) in the performance of the Basic
Services.
4.2 PAYMENTS TO THE ENVIRONMENTAL CONSULTANT. Payments on account
of the Environmental Consultant shall be made as follows:
4.2.1 Payments for Basic Services shall be made upon completion of each of the
following line items:
Amount Due
Asbestos Assessment $7,945.00
Lead -Based Paint Assessment $3,795.00
PCB Assessment $1,650.00
Abatement Plan Preparation /Review /Approval $2,500.00
Abatement Oversight and Air Monitoring $7,000.00
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Closeout Documentation Preparation $ 500.00
As- Needed Consulting Services $1,560.00
Expenses and other direct costs (not to exceed) $ 450.00
4.2.2 No deductions shall be made from the Environmental Consultant's Basic Services
Compensation on account of penalty, liquidated damages, retainage or other sums
withheld from payments to Contractor.
4.2.3 If the Project is suspended for more than six months or abandoned in whole or in
part by the Owner, the Environmental Consultant shall be paid compensation for
services performed prior to receipt of written notice from the Owner of such
suspension or abandonment, and all reasonable termination expenses resulting
from such suspension or abandonment. If the Project is resumed after being
suspended for more than six months, the Environmental Consultant's Basic
Services Compensation shall be equitably adjusted.
4.3 ADDITIONAL SERVICES COMPENSATION
4.3.1 With respect to any additional services performed by the Environmental
Consultant hereunder, the Environmental Consultant and Owner shall negotiate
an equitable adjustment to the Basic Services Compensation. However, if
negotiations are not successful prior to the time the additional services are
needed, the Owner may elect to contract with another entity to perform the
Additional Service(s); or the Owner may direct the Environmental Consultant to
proceed with the Additional Services on a time spent basis with Additional
Compensation Services to be computed as follows:
4.3.1.1 Should the Owner elect to contract with a separate entity to perform Additional
Services, as described under Paragraph 4.3.1, the Environmental Consultant shall
comply with reasonable requests from Owner, without additional compensation,
with regards to coordination of work with the respective separate entity.
4.3.2 Payments for Additional Services of the Environmental Consultant shall be made
monthly upon presentation of the Environmental Consultant's statement of
services, fully supported by invoices, time cards, and other documentation as
requested by the Owner.
4.4 ACCOUNTING RECORDS
4.4.1 Records of the Environmental Consultant with respect to Additional Services and
payroll, consultant and other expenses (including Reimbursable Expenses)
pertaining to the Project, shall be kept on generally accepted accounting principles
and shall be available to the Owner or its authorized representative for inspection
and copying at mutually convenient times.
4.4.2 At the request of the Owner or its authorized representative the Environmental
Consultant will supply in a timely manner and certify as accurate, unaltered
copies of all time sheets, invoices, and other documents to substantiate and
document any and all Additional Services and Reimbursable Expenses.
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ARTICLE 5
PERIOD OF SERVICE
5.1 Specific dates relation to the period f services will be set forth in the Sc . - dule
"Attachment B. ". 4e -j e - D.+ ea- 434 dale
5.2 Unless earlier terminated as provided in Article 10 hereof, this Agreement shall
remain in force for a period which may reasonably be required for the Basic
Services and Additional Services hereunder. However, the provisions of the
Agreement relating to Professional Responsibility (Paragraph 3.2); Dispute
Resolution (Article 11); Professional Liability coverage (Article 8); Indemnification
(Article 9); and Ownership of Documents /Confidential Information (Article 13)
shall remain in effect after termination of the other provisions of the Agreement.
5.3 If the Project is delayed through no fault of the Owner or Environmental
Consultant, all specific dates noted in the Attachment A Schedule that are
affected by the delay will be adjusted by the number of calendar days of the delay.
This includes delays beyond the control of the Owner or Environmental
Consultant, and any unforeseen conditions.
5.4 If the Owner materially revises the Project, a reasonable time extension and/or
credit shall be negotiated between the Environmental Consultant and the Owner.
5.5 Time is of the essence of this Agreement.
ARTICLE 6
OWNER'S RESPONSIBILITIES
6.1 The Owner shall provide full information regarding the requirements for the
Project.
6.2 The Owner shall examine documents submitted by the Environmental Consultant
and shall render decisions pertaining thereto promptly, to avoid unreasonable
delay in the progress of the Environmental Consultant's Services.
6.3 The Owner shall furnish information and approvals required of it expeditiously,
for orderly progress of the Work and shall endeavor to adhere as closely as
possible with the time conditions for such Owner activities as set forth in all
approved schedules for the Project.
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ARTICLE 7
NOTICES
7.1 Any notice required by this Agreement or other communications to
either party by the other shall be in writing and deemed given when delivered
personally or five (5) days after deposit in the United States Post Office, postage
prepaid certified mail, return receipt requested, addressed as follows, or to such
other address as shall be duly given by notice meeting the requirement of this
Article.
To Owner: Mr. Fred Russell
Administrator
Augusta Richmond County
530 Greene Street
Augusta, GA 30901
7.2 To Environmental Consultant:
Dan D. Troutman
President
Alternative Construction & Environmental Solutions,
Inc.
P.O Box 3229
Augusta, Georgia 30914 -3229
7.3 With Copy to:
Forrest W. White, CCM, LEED ®AP
Capital Improvements Program Manager
Heery International, Inc.
501 Greene Street; Suite 307
Augusta, GA 30901
ARTICLE 8
INSURANCE
8.1 The Environmental Consultant shall purchase and maintain insurance for
protection from claims under worker's or workmen's compensation acts; claims
resulting from negligent acts or omissions for damages because of bodily injury,
including personal injury, sickness, disease or death of any of the Environmental
Consultant's employees or any other person; claims for damages because of injury
to or destruction of personal property including loss of use resulting there from;
and claims arising out of the performance of this Agreement and caused by
negligent acts or omissions for which the Environmental Consultant is legally
liable. Minimum limits of coverage shall be:
INSURANCE DESCRIPTION Minimum Required Coverage
a. Worker's Compensation Statutory
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b. Public Liability $1,000,000 Combined Limit
Bodily Injury: Each Person $100,000
Bodily Injury: Each Accident $200,000
Property Damage: Each Accident $100,000
c. Automobile Liability & Property Damage $1,000,000 Combined Limit
Bodily Injury: Each Person $100,000
Bodily Injury: Each Accident $200,000
Property Damage: Each Accident $100,000
d. Professional Liability: $1,000,000 per Loss /Claim
8.2 Evidence of such insurance shall be furnished to the Owner, and the Owner shall
receive thirty (30) days prior written notice of any cancellation, non - renewal or
reduction of coverage of any of the policies. Upon notice of such cancellation, non -
renewal or reduction, the Environmental Consultant shall procure substitute
insurance so as to assure the Owner that the minimum limits of coverage are
maintained continuously throughout the period of this Agreement.
8.3 The Environmental Consultant shall deliver to the Owner a certificate of
insurance for its Professional Liability coverage.
8.4 All insurance policies (with the exception of Professional Liability) required under
this Agreement shall name the Owner as an additional insured for the insurance
and shall contain a waiver of subrogation against the Owner.
ARTICLE 9
INDEMNIFICATION
9.1 Notwithstanding anything to the contrary contained herein, the Environmental
Consultant shall indemnify and hold harmless the Owner, the Construction
Program Manager and their agents and employees from and against all claims,
damages, losses and expenses, including but not limited to attorney's fees, to the
extent arising out of or resulting from (i) the Environmental Consultant's
performance or failure to perform its obligations under this Agreement and (ii) any
claim, damage, loss or expense attributable to bodily injury, sickness, disease or
death, or to injury to or destruction of personal property including the loss of use
resulting there from and caused in whole or in part by any negligent act or
omission of the Environmental Consultant, anyone directly or indirectly employed
by the Environmental Consultant or anyone for whose acts the Environmental
Consultant may be liable. Such obligation shall not be construed to negate,
abridge or otherwise reduce any other right or obligation of indemnity which would
otherwise exist as to any party or person described in this Article.
9.2 Except as otherwise set forth in this Agreement, the Environmental Consultant
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,
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earthquake, epidemic, atmospheric condition of unusual severity, war, state or
local government acting in its sovereign capacity, and strikes. Owner shall not be
liable to the Environmental Consultant for acts or failures to act by Construction
Program Manager, the Contractor, or the Owner's consultants.
ARTICLE 10
TERMINATION OF AGREEMENT
10.1 If (1), the Owner abandons the Project or the Project is stopped for more than six
(6) months due to actions taken by the Owner, or under an order of any court or
other public authority having jurisdiction, or as a result of an act of government,
such as a declaration of a national emergency making materials unavailable
through no act or fault of the Environmental Consultant or its agents or
employees, or (2), the Owner has failed to substantially perform in accordance with
the provisions of this Agreement due to no fault of the Environmental Consultant
and such non - performance continues without cure for a period of thirty (30) days
after the Owner receives from the Environmental Consultant a written notice of
such nonperformance (including a detailed explanation of the actions of the Owner
required for cure), the Environmental Consultant may, upon fifteen (15) day's
additional written notice to the Owner, terminate this Agreement, without
prejudice to any right or remedy otherwise available to the Environmental
Consultant, and recover from the Owner payment for all services performed to the
date of the notice terminating this Agreement.
10.2 Upon the appointment of a receiver for the Environmental Consultant, or if the
Environmental Consultant makes a general assignment for the benefit of
creditors, the Owner may terminate this Agreement, without prejudice to any
right or remedy otherwise available to the Owner, upon giving three (3) working
days written notice to the Environmental Consultant. If an order for relief is
entered under the bankruptcy code with respect to the Environmental Consultant,
the Owner may terminate this Agreement by giving three working days written
notice to the Environmental Consultant unless the Environmental Consultant or
the trustee: (1), promptly cures all breaches; (2), provides adequate assurances of
future performance; (3), compensates the Owner for actual pecuniary loss resulting
from such breaches; and (4), assumes the obligations of the Environmental
Consultant within the statutory time limits.
10.3 If the Environmental Consultant persistently or repeatedly refuses or fails, except
in cases for which extension of time is provided, to supply sufficient properly
skilled staff or proper materials, or persistently disregards laws, ordinances, rules,
regulations or orders of any public authority jurisdiction, or otherwise
substantially violates or breaches any term or provision of this Agreement, then
the Owner may, without prejudice to any right or remedy otherwise available to
the Owner, and after giving the Environmental Consultant written notice,
terminate this Agreement.
10.4 Upon termination of this Agreement by the Owner under Paragraph 10.2 or 10.3,
it shall be entitled to furnish or have furnished the Services to be performed
hereunder by the Environmental Consultant by whatever method the Owner may
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deem expedient. Also, in such cases, the Environmental Consultant shall not be
entitled to receive any further payment until completion of the Work; and the total
compensation to the Environmental Consultant under this Agreement shall be the
amount which is equitable under the circumstances. If the Owner and the
Environmental Consultant are unable to agree on the amount to be paid under the
foregoing sentence, the Owner shall fix an amount, if any, which it deems
appropriate in consideration of all of the circumstances surrounding such
termination, and shall make payment accordingly.
10.5 The Owner may, upon thirty day's written notice to the Environmental Consultant
terminate this Agreement, in whole or in part, at any time for the convenience of
the Owner, without prejudice to any right or remedy otherwise available to the
Owner. Upon receipt of such notice, the Environmental Consultant shall
immediately discontinue all services affected unless such notice directs otherwise.
In the event of a termination for convenience of the Owner, the Environmental
Consultant's sole and exclusive right and remedy is to be paid for all work
performed and to receive equitable adjustment for all work performed through the
date of termination. The Environmental Consultant shall not be entitled to be
paid any amount as profit for unperformed services or consideration for the
termination of convenience by the Owner.
10.6 Should the Owner terminate the Environmental Consultant as provided for under
this Article, the Owner will acquire such documents, including the ownership and
use of all drawings, plans, specifications, documents and materials relating to the
Project prepared by or in the possession of the Environmental Consultant. The
Environmental Consultant will turn over to the Owner in a timely manner and in
good unaltered condition all such original documents and materials.
10.7 The payment of any sums by the Owner under this Articlel0 shall not constitute a
waiver of any claims for damages by the Owner for any breach of the Agreement
by the Environmental Consultant.
ARTICLE 11
DISPUTE RESOLUTION
If a dispute arises out of or related to this Agreement, or its alleged breach, and if
that dispute has not been settled through direct discussions within a reasonable
period, the parties to this Agreement agree to first endeavor to settle the dispute
in an amicable manner by submitting the dispute to a mutually acceptable
mediator under the Construction Industry Mediation Rules, before having recourse
to a judicial forum. Each party further agrees that it will endeavor to follow a
similar dispute resolution procedure to resolve any disputes against any third
parties (including the Construction Manager at Risk and Construction Program
Manager) which arise out of or relate to work.
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Should mediation of disputes prove unsuccessful, the parties to this Agreement
agree that the matter(s) in question will be decided in the Superior Court of
Richmond County, Georgia. By signing this Agreement, the Environmental
Consultant waives any right to contest the venue in the Superior Court of
Richmond County, Georgia.
ARTICLE 12
SUC CESSORS /ASSIGNMENT
12.1 This Agreement shall inure to the benefit of and be binding on the heirs,
successors, assigns, trustees and personal representatives of the Owner, as well as
the permitted assigns and trustees of the Environmental Consultant.
12.2 The Environmental Consultant shall not assign, sublet or transfer its interest in
this Agreement without the written consent of the other, except that the
Environmental Consultant may assign accounts receivable to a commercial bank
or financial institution for securing loans, without prior approval of the Owner.
ARTICLE 13
OWNERSHIP OF DOCUMENTS /CONFIDENTIAL INFORMATION
13.1 The Environmental Consultant agrees to transmit a digital copy of all plan text
and drawings and closeout documents to Owner prior to project closeout. Said
electronic files and documents are not to be used by the Owner on projects at
separate facilities without a written agreement with the Environmental
Consultant, except as provided for under Paragraph 10.6.
13.2 In order for the Environmental Consultant to fulfill this Agreement effectively, it
may be necessary or desirable for the Owner to disclose to the Environmental
Consultant confidential and proprietary information and trade secrets pertaining
to the Owner's past, present and future activities. The Environmental Consultant
hereby agrees to treat any and all information gained by it as a result of the
Services performed hereunder as strictly confidential. The Environmental
Consultant further agrees that it will not disclose to anyone outside of the
authorized Project team (i) Owner's trade secrets during the period of this
Agreement or thereafter or (ii) Owner's confidential and proprietary information
during the period of this Agreement and thereafter for a period of 2 years.
ARTICLE 14
ADDITIONAL PROVISIONS
14.1 This Agreement and its Exhibits and Attachments represent the entire and
integrated agreement between the Owner and the Environmental Consultant and
supersedes all prior negotiations, representations or agreements, either written or
oral. This Agreement may be amended only by written instrument signed by both
Owner and Environmental Consultant.
14.2 This Agreement shall be governed by the law of the State of Georgia, U.S.A.
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A •
14.3 If any one or more of the provisions contained in this Agreement, for any reason,
are held to be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions thereof and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision
had never been contained herein.
14.4 Except where specifically stated otherwise, all periods of time stated in terms of
days shall be considered periods calculated in calendar days.
14.5 The headings or captions within this Agreement shall be deemed set forth in the
manner presented for the purposes of reference only and shall not control or
otherwise affect the information set forth therein or interpretation thereof.
14.6 For the purpose of this Agreement unless the context clearly indicates otherwise,
the singular includes the plural, and the plural includes the singular.
14.7 This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, and the counterparts shall constitute one and the
same instrument, which shall be sufficient evidence by any one thereof.
This Agreement executed the day and year first written above.
OWNER ENVIRONMENTAL CONSULTANT
Augusta, Georgia, a political Alternative Construction &
Subdivision of the State of Georgia Environmental Solutions, Inc.
Acting by and through the
Augusta Richmond County Commission
C , By: By: \
Deke S. Copenhaver Dan D. Troutman
`L Mayor President
• r
Attes4 ®1.� ���' Attest: I \s t A 13 L ��-�.`A
Cler - "
® • MC • Witness
v
1 S
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