HomeMy WebLinkAboutTURNER CONSTRUCTION COMPANY (PROJECT NAME: MUNICIPAL BUILDING RENOVATIONS AND MODERNIZATION � a ad z y
STANDARD FORM OF CONTRACT
FOR GENERAL
CONSTRUCTION MANAGEMENT
SERVICES
(At-Risk Guaranteed Maximum Price)
BETWEEN
AUGUSTA, GEORGIA
(hereinafter referred to as the Owner)
AND
TURNER CONSTRUCTION COMPANY
(hereinafter referred to as the Construction Manager)
The General Construction Management Services required by this Contract are to be
rendered for the following project, hereinafter identified as the "Project":
Project Name: Municipal Building Renovations and Modernization
Project Address: 530 Greene Street
City/State/Zip: Augusta, Georgia
Project ID #: 10-195 �
General Project The project will be renovations and modernization for the Augusta,
Description: Georgia Municipal Building, an approximately 120,800 s.f., 9 story
building. The facility will be LEED certified (minimum level) according
to the current 3.0 version.
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Table of Contents
Article 1 Representations
Articie 2 Notices
Article 3 Definitions
Article 4 Relationship of the Parties
Article 5 Contract Documents
Article 6 Scope of Construction Manager's Project
Article 7 Compensation for Construction Manager
Article 8 Personnel, Subcontractors, and Suppliers
Article 9 Construction Schedule
Article 10 Bonds
Article 11 Construction Manager's Duties, Obligations and Responsibilities
Article 12 Goods, Products, and Materials
Article 13 Submittals
Article 14 Construction Manager'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 Construction Manager's Warranties and Guaranties
Article 20 Owner's Duties, Obligations and Responsibilities
Article 21 Liquidated Damages
Article 22 Concealed and Unforeseen Conditions
Article 23 Construction Manager'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 Construction Manager'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
Exhibit G Authorization for Construction
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This Contract for General Construction Management Services is entered into between:
Owner
Owner's Name: Augusta, Georgia
Owner's Address: 530 Greene Street
City/State/Zip: Augusta Georgia 309611
and
Construction Manager
CM's Name: Turner Construction Company
Construction 3560 Lenox Road
Manager's Address: Suite 1100
City/State/Zip: Atlanta, Georgia 30326
This Contract for General Construction Management Services is executed under seal,
and shall be effective on the date signed by the last party to do so.
AUTHORIZED REPRESENTATIVES:
The authorized representatives and addresses of the Owner, the Architect, and the
Construction Manager are:
Owner's Representative (Augusta Office)
Firm Name: Heery International, Inc.
Name: Jacques Ware
Address: 530 Greene Street Suite 312
City/State/Zip: Augusta Georgia 30901
Email Address: jware@augustaga.gov
Phone: 706-842-5558 Cell: 706-825-8132 Fax: 706-821-2484
Architect's Representative
Firm Name: Virgo Gambill Architect
Name: Joseph Gambill Jr., AIA, LEEDoAP
Address: 2531 Center West Parkway, Suite 200
City/State/Zip: Augusta Georgia 30909
Email Address: jgambill@virgogambill.com
Phone: 706-736-3661 Cell: Fax: 706-736-4552
Construction Manager's Representative
Firm Name: Turner Construction Company
Name: Jennifer Henderson
Address: 3560 Lenox Road, Suite 1100
City/State/Zip: Atlanta Georgia 30326
Email Address: jlhenderson@tcco.com
Phone: 404-504-3710 Cell: 404-516-0425 Fax: 404-504-3716
License # 004445LGB FEIN#/SS# 13-1401980
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 Construction Manager agree:
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ARTICLE 1
REPRESENTATIONS
By executing this Contract, the Construction Manager makes the following express
representations to the Owner:
1.1 The Construction Manager is professionally qualified to act as the Construction
Manager for the Project and is licensed to perform Construction Management
Services by all public entities having jurisdiction over the Construction Manager
and the Project;
1.2 The Construction Manager has and shall maintain all necessary licenses,
permits or other authorizations necessary to act as the Construction Manager
for the Project until the Construction Manager's duties hereunder have been
fully satisfied;
1.3 The Construction Manager has become familiar with the Project site and the
local conditions under which the Project is to be constructed;
1.4 The Construction Manager assumes full responsibility to the Owner for the
negligent or willful acts and omissions of the Construction Manager's
employees, Subcontractor's or others employed or retained by the Construction
Manager in connection with the Project;
1.5 The Owner and Construction Manager each acknowledges that it has reviewed
and familiarized itself with this Contract for General Construction Management
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 Construction
Manager to pertorm certain labor, supervision and services and provide certain
equipment, goods and materials for the Project.
1.7 The Owner and Construction Manager each acknowledges that it will act in
good faith in carrying out its duties and obligations.
1.8 The Owner's engagement of the Construction Manager is based upon the
Construction Manager's representations to the Owner that it is experienced in
the type of labor and services the Owner is engaging the Construction Manager
to perform; is qualified, willing and able to perform general construction
management services for the Project; and has the expertise and ability to
provide general construction management 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.
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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
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 Project — Municipal Building Renovations and Modernization
3.2 Construction Manager - The Construction Manager is the person or entity
which enters into an agreement with the Owner to perform the construction
management services for the Project, including, without limitation, the providing
of labor, materials, and equipment incorporated or to be incorporated into the
Project. The term "Construction Manager" means the Construction Manager or
its authorized representative, but excludes the Owner's Representative and the
Architect.
3.3 Compensation - Compensation shall be the fees designated in Article 7.1 to be
paid by the Owner to the Construction Manager in connection with the
performance of the Services by the Construction Manager.
3.4 Change Order - shall mean a written order to the Construction Manager
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 Construction Manager's perforrr►ance, 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.
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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 Construction Manager on all design and
technical matters, and will administer this Contract for General Construction
Management Services. Unless otherwise directed by the Owner, the Owner
and the Construction Manager shall communicate with each other in the first
instance through the Architect. The Owner's instructions to the Construction
Manager will be issued through the Architect.
4.2 Owner Rep�esentation - 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 Construction Manager or their
Subcontractors in accordance with generally accepted construction
management practices except as otherwise modified by this Agreement. The
Construction Manager shall fully cooperate with the Owner's Representative.
Instructions by the Construction Manager to the Architect relating to services
performed by the Construction Manager 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 Construction Manager 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 Construction Manager and
to conduct periodic meetings to be attended by the Architect, and their
subconsultants, and the Construction Manager, 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 Construction Manaqer —
4.4.1 The Construction Manager 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 Construction Manager shall provide the Owner with a list of the proposed
key project personnel of the Construction Manager and its Subcontractors to be
assigned to the Project. The key project personnel are defined as the Project
Director/Executive Manager, Preconstruction Manager, Senior Project
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Manager, Project Manager, and Superintendent. This list shall include such
information on the Construction Manager 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 Construction Manager's (or its
subcontractors, if applicable) employ.
4.4.3 If required by the Owner's Representative, all agents and Employees of the
Construction Manager and their Subcontractors shall wear identification
badges provided by the Construction Manager at all times that they are on the
Owner's property. The identification badge shall at a minimum display the
company name and telephone number and the employee name.
4.4.4 The Construction Manager understands and agrees that should the Owner's
Representative or other ConsultanYs provide the Construction Manager 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 Construction Manager
of the responsibility of fulfilling its obligations and responsibilities under this
Agreement.
ARTICLE 5
CONTRACT DOCUMENTS
5.1 The "Contract for General Construction Management 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 Construction Manager and accepted by the Owner;
5.1.4 The Drawings, Specifications, and all Addenda now existing or issued
hereafter, (see Exhibit C for Initial List of Drawings, Specifications and
Addenda);
5.1.5 Any amendments or addenda executed by the Owner and the Construction
Manager 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 Management
Services.
5.3 The Owner shall furnish the Construction Manager with 5 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
Construction Manager for execution of the Project shall be made by the
Construction Manager at its cost and expense from the reproducible sets, or
electronic media furnished by the Owner.
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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 Construction Manager concerning such documents.
The Construction Manager 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 Management
Services, the following shall control: �
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 Construction Manager or its
Subcontractors and Suppliers do not constitute a part of this Contract for
General Construction Management Services.
ARTICLE 6
SCOPE OF PROJECT
6.1 The Construction Manager 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 Management Services.
The general nature of the scope of Project that the Construction Manager is to
complete is briefly described as follows:
6.1.1 See Exhibit A— Scope of Work
ARTICLE 7
COMPENSATION FOR CONSTRUCTION MANAGER
7.1 Compensation for Pre-Construction and Construction Management Services
shall be paid in accordance with Article 7.2 and 7.4.
7.2 Compensation for Pre-Construction Services. The Owner shall pay, and the
Construction Manager shall accept, as full and complete payment for the
Construction Manager's timely and complete performance of Pre-Construction
Services, the Pre-Construction Services Fee.
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7.2.1 Pre-Construction Services Fee — Amount. The Pre-Construction Services Fee
shall be a lump sum fee as set forth in Exhibit "G".
The Owner shall pay, and the Construction Manager shall accept as complete
payment for performance of Pre-Construction Services, a lump sum fee,
portions of which will be paid monthly upon submittal of an invoice during the
Pre-Construction phase of the project.
7.3 Guaranteed Maximum Price. Prior to performance of Construction
Management Services and in accordance with the requirements set forth in,
Exhibit A, the Construction Manager shall prepare and deliver to the Owner,
with a copy to the Architect and Owner's Representative, a Guaranteed
Maximum Price ("GMP") proposal upon completion of Sixty Five percent (65%)
to Ninety percent (90%) of the Construction Documents.
If the GMP proposal is finalized in accordance with Exhibit A and Exhibit G
hereto is executed by the parties, the Owner shall issue a written notice to the
Construction Manager ("Notice to Proceed") establishing the date construction
is to commence (the "Commencement Date").
7.4 Compensation for Construction Management Services. The Owner shall pay,
and the Construction Manager shall accept, as full and complete payment for
Construction Management Services, the Construction Price ("the Construction
Price") which shall not exceed the Guaranteed Maximum Price ("GMP").
7.4.1 Construction Price — Amount. The Construction Price shall include, and is
limited to, the total of:
7.4.1.1 The aggregate net cost of the Construction Manager's General Conditions
("General Conditions Cost"), as defined in Exhibit A, not to exceed the General
Conditions Guaranteed Maximum Cost set forth in Exhibit G;
7.4.1.2 The aggregate net cost directly paid, or to be paid, by the Construction
Manager to subcontractors pursuant to written subcontracts to perForm the
Work ("Subcontracts Cost"); and
7.4.1.3 The compensation for the Construction Manager's provision of management
services pursuant to Exhibit A("Management Fee�), which is a Lump Sum Fee.
7.5 Within fourteen (14) calendar days after execution of this Contract for General
Construction Management Services, the Construction Manager shall prepare
and present to the Owner's Representative and the Architect, the Construction
Manager's Cost Loaded Schedule as described in the Specifications. The
Construction Manager's Cost Loaded Schedule shall be presented in the
format, and with such detail and supporting information, specified in this
Contract for Construction Management Services. The Construction Manager
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 Construction Manager's requests for payment. The Cost
Loaded Schedule shall not be changed without written change order authorized
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by the Owner.
7.6 Within thirty (30) calendar days after receipt by the Owner of the Construction
Manager's approved invoice, the Owner shall pay to the Construction Manager
ninety percent (90%) 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 Construction Manager. The thirty (30) calendar days
after receipt of the approved invoice is defined as the Payment Date.
7.7 If any portion of the Contract Amount is determined by the application of unit
prices, the number of units contained in the Construction Manager's Cost
Loaded Schedule is an estimate only, and the compensation to the
Construction Manager shall be determined by the actual number of units
incorporated in, or required by, the Project.
7.8 At least every thirty (30) calendar days after commencement of performance,
but no more frequently than once a month, the Construction Manager 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:
7.8.1 The total Contract Amount;
7.8.2 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;
7.8.3 A breakdown of the various phases or parts of the Project as related to the
Contract Amount;
7.8.4 The value of the various phases or parts of the Project actually performed;
7.8.5 Previously invoiced amounts and credit payments made;
7.8.6 The total amount due, less the amount of retainage;
7.8.7 And shall also have attached such lien waivers (partial or final) and other
documentation verifying the Construction Manager's payment to subcontractors
and suppliers.
7.9 The Architect will review the Construction Manager's applications for payment,
including such accompanying data, information and schedules as the Contract
for General Construction Management Services requires, to determine the
amounts due to the Construction Manager and, based upon such review,
together with its inspections of the Project, shall authorize payment by the
Owner to the Construction Manager in writing. Such authorization will
constitute the Architect's certification to the Owner that:
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7.9.1 The Project described in the Construction Manager's invoice has progressed to
the level indicated and has been perFormed in accordance with the Contract for
General Construction Management Services;
7.9.2 All necessary and appropriate lien waivers have been submitted;
7.9.3 The amount requested is currently due and owing to the Construction Manager.
7.10 The Architect's approval of the Construction Manager's invoice shall not
preclude the Owner from exercising any of its remedies under this Contract for
General Construction Management 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 Construction Manager
due to:
7.10.1 The Construction Manager's failure to perform the work required in compliance
with the requirements of this Contract for General Construction Management
Services or any other agreement between the parties;
7.10.2 The Construction Manager's failure to correctly and accurately represent the
Project performed in a payment request, or otherwise;
7.10.3 The Construction Manager'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;
7.10.4 The Construction Manager's failure to use funds previously paid the
Construction Manager by the Owner, to pay the Construction Manager's
Project-related obligations including, but not limited to, the Construction
Manager's employees, subcontractors, materialmen, and suppliers;
7.10.5 Claims made, or likely to be made, against the Owner or its property;
7.10.6 Loss caused by the Construction Manager or the Construction Manager's
subcontractors, or suppliers;
7.10.7 The Construction Manager's failure or refusal to perform any of its obligations
to the Owner.
7.11 If after thirty (30) calendar days from the Payment Date the Owner, without
cause or basis hereunder, fails to pay the Construction Manager any amounts
then due and payable to the Construction Manager, the Construction Manager
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.
7.12 All prior payments, whether based on estimates or otherwise, may be corrected
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and adjusted in any subsequent payment and shail be corrected and adjusted
in the final payment. In the event that any invoice contains a defect or
impropriety which would prevent payment by the Payment Date, the Owner
shall notify the Construction Manager in writing of such defect or impropriety.
Any disputed amounts determined by the Owner to be payable to the
Construction Manager shall be due thirty (30) calendar days from the date that
the dispute is resolved.
7.13 NOT USED.
7.14 The Construction Manager expressly warrants and guarantees to the Owner
that:
7.14.1 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 Construction Manager, whichever occurs first;
7.14.2 All goods, products, materials, equipment and systems covered by an invoice
are free and clear of liens, claims, security interests or encumbrances;
7.14.3 No goods, products, materials, equipment or systems covered by an invoice
have been acquired by the Construction Manager, 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
Construction Manager, or its subcontractors or suppliers.
7.15 The signature of the Construction Manager on any invoice constitutes the
Construction Manager's certification to the Owner that the Construction
Manager's services listed in the invoice have progressed to the level indicated
and have been perFormed as required by this Contract for General Construction
Management Services; the Construction Manager 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.
7.16 The Construction Manager shall incorporate into the Guaranteed Maximum
Price 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 Management Services, whether or not yet effective or merely
scheduled to go into effect. The Construction Manager 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 Construction Manager shall cooperate with and assist the Owner in
securing qualified refunds of any sales or use tax paid by the Owner or
Construction Manager on goods, products, materials, equipment or systems.
Any refund secured shall be paid to the Owner.
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7.17 Upon receipt of payment from the Owner, the Construction Manager shall pay
each of its subcontractors and suppliers out of the amount received by the
Construction Manager 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 Construction Manager 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 Construction Manager's
subcontractors or suppliers. However, the Owner reserves the right, but has
no duty, to make payment jointly to the Construction Manager and to any of its
subcontractors or suppliers in the event that the Owner becomes aware that
the Construction Manager 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.
7.18 Prior to being entitled to receive final payment, the Construction Manager 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 Construction Manager 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 Construction Manager to
perForm the work under this contract was based on the proposed personnel to
be assigned to the Project. The Construction Manager 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 Construction Manager 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 therefore, 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 Construction Manager 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 Construction Manager shall staff the Project with qualified and designated
individuals and entities responsible for its obligations and performance.
8.4.1 The Construction Manager's Representative will serve as its primary
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communication contact with the Architect.
8.4.2 The Construction Manager shall ernploy 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 Construction Manager shall use its
best efforts to minimize the likelihood of any strike, work stoppage or other
labor disturbance.
8.4.3 The Construction Manager shall immediately remove from the Site, for the
duration of the Project, any person making an inappropriate religious, racial,
sexual or ethnic comment, statement or gesture toward any other individual.
8.4.4 The Construction Manager 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 Construction Manager shall be responsible to the Owner for the acts and
omissions of its agents and employees, consultants, subcontractors and
suppliers.
8.4.6 The Construction Manager 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 Construction Manager shall limit smoking to areas outside the building.
Smoking inside the building is prohibited. If anyone is caught smoking inside
the building they will 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 Construction Manager shall enter into written contracts with its
subcontractors and suppliers, and those written contracts shall be consistent
with this Contract for General Construction Management Services. It is the
intent of the Owner and the Construction Manager that the obligations of the
Construction Manager's subcontractors and suppliers inure to the benefit of the
Owner and the Construction Manager, and that the Owner be a third-party
beneficiary of the Construction Manager's agreements with its subcontractors
and suppliers.
8.5.1 The Construction Manager 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 Management
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 Construction Manager shall include in its written contracts with its
subcontractors and suppliers a provision which contains the acknowledgment it
has received and reviewed the applicable terms, conditions and requirements
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of this Contract for General Construction Management Services that are
included by reference in its written contract with the Construction Manager, and
that it will abide by those terms, conditions and requirements.
8.5.3 The Construction Manager'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 Construction Manager's
agreements with its subcontractors and suppliers shall require that in the event
of default under, or termination of, this Contract for General Construction
Management Services, and upon request of the Owner, the Construction
Manager's subcontractors and suppliers will perform services for the Owner.
8.6 The Construction Manager shall promptly resolve claims, complaints, labor
disputes and disputes over assignment of Project tasks by and among its
subcontractors and suppliers.
ARTICLE 9
CONSTRUCTION SCHEDULE
9.1 The Construction Manager shall commence construction of the scope of the
Project within ten (10) days after receipt of the Notice-to-Proceed.
9.2 The Construction Manager shall accomplish Substantial Completion of the
scope of the Project within 608 calendar days following the date of the Notice
to Proceed.
9.3 The Construction Manager 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 Construction Manager 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 or MS Project format.
The Owner will review the Construction Manager'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 Construction Manager
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 Construction Manager'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.
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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 Construction Manager'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 Construction Manager shall review, on a weekly basis, the actual status of
the Project against the Construction Schedule. The Construction Manager shall
discuss th,e status of the Project weekly with the Architect, so that proper
overall management may be provided.
9.6 If at any time the Construction Manager anticipates that performance of the
work will be delayed or in fact has been delayed, the Construction Manager
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 Construction Manager 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 Construction Manager may attempt to achieve Substantial Completion
before the required date of Substantial Completion. However, such planned
early completion shall be for the Construction Manager's sole convenience and
shall not create any additional Construction Manager rights or Owner
obligations under this Contract for General Construction Management
Services, nor shall it change the required dates of Substantial Completion or
Final Completion. The Owner shall not pay the Construction Manager any
additional compensation for achievement of Substantial Completion or Final
Completion prior to the required dates nor will the Owner owe the Construction
Manager any compensation should the Owner cause the Construction
Manager 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 Construction Manager may propose modifications to the required dates of
Substantial Completion or Final Completion. The Owner may, but is not
required to, accept the Construction Manager'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 Management Services to the required dates of Substantial
Completion or Final Completion shall thereafter refer to the dates as modified,
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and all rights and obligations, including the Construction Manager's liability for
actual damages, delay damages and liquidated damages, shall be determined
in relation to the dates as modified.
9.10 The Construction Manager 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 Construction Manager 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
Management Services;
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 Construction Manager 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
CONSTRUCTION MANAGER'S DUTIES, OBLIGATIONS AND RESPONSIBILITIES
11.1 The Construction Manager shall perform and complete its obligations under
this Contract for General Construction Management 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 Management 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 Construction Manager shall not be required to provide Architectural
services which constitute the practice of architecture or engineering.
11.1.2 All services rendered by the Construction Manager for the Project shall be
perFormed by or under the immediate supervision of persons possessing
expertise in the discipline of the service being rendered.
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11.1.3 The Construction Manager 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 Construction Manager understands and acknowledges that the Project
referred to in this Contract for General Construction Management 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
Construction Manager 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 Construction Manager 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 Construction Manager damage, compromise
or destroy any part of the Project or the Site, the Construction Manager shall be
fully and exclusively responsible for and bear all costs associated therewith for
any repairs required to bring the condition back to the original state prior to
when the damage occurred.
11.2 The Construction Manager 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 Construction Manager at all times. The
Construction Manager 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 Construction Manager shall, concurrently with performance, maintain
detailed records of safety related activities on the Site.
11.4 The Construction Manager 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 Construction Manager
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shall include such supplementary notes and details necessary to clearly and
accurately represent as-built construction.
11.5 The Construction Manager 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 Construction
Manager has a direct or indirect proprietary interest.
11.6 The Construction Manager shall develop and implement a quality management
program to insure quality construction. Unless otherwise specified in this
Contract for General Construction Management 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 Construction
Manager shall coordinate all tests and inspections required by the Contract
Documents, and the Construction Manager 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 Construction Manager 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 Construction Manager 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 Construction
Manager encounters environmental contamination (including but not limited to
Hazardous Substances and petroleum releases), the Construction Manager
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;
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and take any other steps necessary to protect life and health.
11.9 The Construction Manager shall perform the work so as not to interrupt any
operations of the Owner on the Site.
11.9.1 The Construction Manager understands and acknowledges that the Owner
may need access to or use of certain areas of the Site or Project prior to the
Construction Manager'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 Construction Manager shall not enter any Owner-occupied area of the Site
or Project unless first approved and scheduled by the Owner. The Construction
Manager 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 Construction Manager 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 Construction Manager shall, through the Architect, schedule and
coordinate all equipment and systems start-ups within its scope of the Project.
11.10.1 The Construction Manager 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 Construction Manager 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 Construction Manager shall resolve all questions concerning the Contract
Documents with the Architect.
11.12 The Construction Manager shall provide water, gas and electrical services at
the Site. The Construction Manager shall be responsible for providing and
paying for connections to, extensions from and means of using these utilities.
The Construction Manager 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 Construction Manager shall pay for water, gas
and electrical services up to and including the date of Substantial Completion.
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ARTICLE 12
GOODS, PRODUCTS AND MATERIALS
12.1 The Construction Manager shall furnish goods, products, materials, equipment
and systems which
12.1.1 Comply with this Contract for General Construction Management Services;
12.1.2 Conform to applicable specifications, descriptions, instructions, drawings, data
and samples;
12.1.3 Are new (unless othen►vise 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 fumished 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,
recommendations or instructions deviate from accepted construction practices,
or the Contract Documents, in which case the Construction Manager 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
Construction Manager 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 Construction Manager shall inform the Owner of goods, products,
materials, equipment or systems which the Construction Manager 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 Construction Manager, subcontractor, or supplier noti�ed
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
Construction Manager 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
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procedures different from or in addition to those required for specified items,
the Construction Manager shall provide such at no increased cost to the
Owner. The Construction Manager 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 Construction
Manager to coordinate the work.
12.4 The Construction Manager 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 Construction Manager 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 Construction Manager 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 Construction Manager shall
review and approve all submittals prior to submission to the Architect.
13.2 The Construction Manager 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.
13.3 The Architect is responsible to the Owner, but not to the Construction Manager,
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 Management 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 Management 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 Construction Manager 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.
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13.4 If the Architect makes any changes to the approved submittals which will
require a change in the contract amount, the Construction Manager 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 Construction Manager proceeds with the work prior to
receiving a change order to the Contract, the Construction Manager 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 Construction Manager from
complying with this Contract for General Construction Management Services,
including all plans and specifications, except as changed by Change Order.
ARTICLE 14
CONSTRUCTION MANAGER'S QUALITY ASSURANCE
14.1 During the course of work, the Construction Manager 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 Construction Manager 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 Construction Manager
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 Construction Manager 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 Construction
Manager's correction or removal of rejected work.
14.2 If a portion of the work has been concealed, the Construction Manager 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 Construction Manager 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 Construction Manager 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.
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ARTICLE 15
CHANGES TO THE PROJECT
15.1 The Construction Manager understands and agrees that this Contract for
General Construction Management 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
Management 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 Construction Manager 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 Construction Manager, the
Construction Manager shall prepare and submit change order request
proposals to the Architect.
15.2.2 The Construction Manager shall promptly review and respond to change order
requests submitted by the Architect.
15.2.3 When requested to do so, the Construction Manager 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 Construction Manager 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 Construction
Manager shall promptly carry out such changes. Any such minor changes shall
be implemented by written field order and executed by the Construction
Manager.
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 Construction Manager 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 Construction Manager to implement
changes in the Project so long as the work the Owner is requiring is not outside
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of the general scope of this Contract for General Construction Management
Services, and the Construction Manager, 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 Construction Manager 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
Construction Manager'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 Construction Manager shall be seven
percent (7%) of the amount allocable for subcontracted work. If the change
involves only work of the Construction Manager, the component for overhead
and profit shall be fifteen percent (15%).
15.6.2 If no mutual agreement occurs befinreen the Owner and the Construction
Manager, 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 sfiall
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 Construction Manager shall be seven percent
(7%) of the amount allocable for subcontracted work. If the change involves
only work of the Construction Manager, 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.
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 H. 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 Construction Manager, the Construction
Manager shall obtain the best possible price quotations from their
subcontractors and suppliers; they should review such quotations ta ascertain
whether they are reasonable; prepare an itemized estimate together with
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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
Construction Manager 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 Construction Manager
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 Construction Manager shall constitute
conclusive evidence of the Construction Manager's agreement to the ordered
changes in the work, this Contract as thus amended, the Contract Amount and
the time for performance by the Construction Manager. The Construction
Manager, 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.
15.12 The Construction Manager shall notify and obtain the consent and approval of
the Construction Manager's Surety with reference to all Change Orders if such
notice, consent or approvals are required by the Owner, the Architect, and the
Construction Manager's Surety, or by law. The Construction Manager's
execution of the Change Order shall constitute the Construction Manager'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.
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ARTICLE 16
CLAIMS AND LIENS
16.1 The Construction Manager shall immediately nofify Architect and the Owner,
both orally and in writing, of the nature and details of any mechanics' liens,
construction liens, Construction Manager's trust fund claims, or claims of any
type made by anyone against the Owner, the Owner's Representative, the
Architect, the Construction Manager 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 Construction Manager 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 Construction Manager 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 Construction Manager 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
Construction Manager 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
Construction Manager shall bear all expenses incurred by the Owner in so
doing.
16.3 All Construction Manager 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 Construction Manager and the Owner shall continue their performance
hereunder regardless of the existence of any claims submitted by the
Construction Manager.
16.5 In the event the Construction Manager seeks to make a claim for an increase in
the Contract Amount, as a condition precedent to any liability of the Owner, the
Construction Manager shall strictly comply with the requirements of Article 16.3
above and such claim shall be made by the Construction Manager before
proceeding to execute any additional or changed Work. Failure of the condition
precedent to occur shall constitute a waiver by the Construction Manager of
any claim for additional compensation.
16.6 In connection with any claim by the Construction Manager against the Owner
for compensation in excess of the Contract Amount, any liability of the Owner
for the Construction Manager's cost shall be strictly limited to direct cost
incurred by the Construction Manager and shall in no event include indirect
cost or consequential damages of the Construction Manager. The Owner shall
not be liable to the Construction Manager for claims of third-parties including
subcontractors, unless and until liability of the Construction Manager has been
established in a court of competent jurisdiction.
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16.7 In the event the Construction Manager 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 Construction Manager 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 Construction Manager shall strictly comply with the
requirements of Article 16.3 above. If the Construction Manager 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 Construction Manager 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 Virgo Gambill Architects. (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 Construction Manager shall communicate with each other in the first
instance through the Architect.
17.1.3 When requested by the Construction Manager 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 Construction Manager.
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 Construction Manager's Payment Requests and
shall approve in writing those amounts which, in the opinion of the Architect,
are properly owing to the Construction Manager as provided in this Contract.
17.1.8 The Architect shall, upon written request from the Construction Manager,
perform those inspections required in this Agreement.
17.2 The duties, obligations and responsibilities of the Construction Manager under
this Contract for General Construction Management Services shall in no
manner whatsoever be changed, altered, discharged, released, or satisfied by
any duty, obligation or responsibility of the Architect. The Construction
Manager 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 Construction Manager 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 Management 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
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Management Services, including approved shop drawings and other
submittals; the Construction Schedule; and applicable laws, statutes, building
codes, rules or regulations of 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 Management 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 Management
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 Management 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 Construction
Manager, 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
Management 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 Construction Manager and shall authorize
payment to the Construction Manager in writing to the Owner. After the Project
is determined to be finally complete and the Architect determines that the
Construction Manager has completed the Project, the Architect will determine
whether the Construction Manager 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.
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18.2 When the Construction Manager believes that the Project is substantially
complete, the Construction Manager shall notify the Architect that the Project is
ready for a Substantial Completion Inspection.
18.3 Prior to the Substantial Completion Inspection, the Construction Manager 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 Construction Manager
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 Construction Manager and the
Architect.
18.4 Upon receipt of notification from the Construction Manager, the Architect will
coordinate with the Owner's Representative, their Consultants, and the
Construction Manager 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 Construction
Manager 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 Construction
Manager 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 Construction Manager of any deficiencies.
18.8 When the Owner, the Construction Manager and the Architect agree that the
Project is substantially complete, and the Construction Manager has produced
the required Substantial Completion documentation, they shall sign the
Certificate of Substantial Completion stating that the Project is substantially
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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 Construction
Manager has 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 Construction Manager 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 Construction Manager.
18.10 When the Construction Manager believes that the Project is finally complete,
the Construction Manager shall notify the Architect that the Project is ready for
a Final Completion Inspection.
18.11 Upon receipt of such notification from the Construction Manager, the Architect
will coordinate with the Owner's Representative and the Construction Manager
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 Management 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 Construction Manager 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 Construction Manager 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;
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18.14.2 Two (2) sets of as-built drawings and markups;
18.14.3 Certification and affidavit that all insurance required of the Construction
Manager 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;
18.14.5 Full, final and unconditional waivers of inechanics or construction liens,
releases of Construction Manager'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 Construction
Manager'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 Construction Manager, and will immediately inform the
Construction Manager about any deficiencies and omissions.
ARTICLE 19
CONSTRUCTION MANAGER'S WARRANTIES AND GUARANTEES
19.1 In addition to the warranties and guarantees set forth elsewhere in this
Contract for General Construction Management Services, the Construction
Manager, 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 Construction Manager 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
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walk-through inspection will be to determine if there are any defects or failures
which require correction.
19.1.2 Should the Construction Manager 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 Construction Manager shall promptly reimburse the Owner for
any expenses or damages it incurs as a result of the Construction Manager 's
failure to correct the failure or defect.
19.2 In addition to the warranties and guarantees set forth elsewhere herein, the
Construction Manager 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 Management Services
and shall be and are performed in a good workmanlike manner.
19.3 The Construction Manager shall require that all of its subcontractors and
suppliers provide written warranties, and guarantees to the Owner and the
Construction Manager, in a form identical to the warranties, and guarantees
required in the Contract for General Construction Management 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 Construction Manager's obligations under this
Contract for General Construction Management Services. Paragraph 19.1
relates only to the Construction Manager's specific obligations with respect to
the Project, and has no retationship to the time within which the Construction
Manager's contractual obligations under this Contract for General Construction
Management Services may be enforced, nor to the time within which
proceedings may be commenced to establish the Construction Manager's
liability with respect to any contractual obligations pursuant to Article 19.1or
contained elsewhere herein.
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19.6 Uniess otherwise specified, all of the Construction Manager'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 Construction Manager in accordance
with this Contract for General Construction Management Services.
20.2 Unless otherwise required to be provided by the Construction Manager 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 Construction Manager 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 Construction Manager 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 Construction Manager, 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 Construction
Manager 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 Management 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 Construction Manager of the responsibility for providing the testing
required in the Contract Documents.
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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 asce�tain how, or for what purposes, the
Construction Manager 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 Construction Manager shall be
entitled to rely upon their accuracy and completeness.
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 Construction Manager to obtain any permits and/or
licenses, the Owner shall pay for and the Construction Manager 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 Construction Manager 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 Construction Manager 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
Construction Manager 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 Construction Manager 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 Management
Services, and that the Owner will incur damages if the Project is not completed
on time. The Construction Manager 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.
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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 Construction Manager in the completion of the Project.
21.2.1 If the Construction Manager 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 Management
Services, the Construction Manager shall pay to the Owner, as liquidated
damages for delay and not as a penalty, the daily amount of $3,000.00 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 Construction Manager is
terminated by Owner for default and shall apply until Substantial Completion
has been achieved by any completing Construction Manager.
21.2.2 If the Construction Manager fails to achieve Final Completion by the required
date of Final Completion as established and previously set forth in this Contract
for General Construction Management Services, the Construction Manager
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 if not actually imposed, for each
calendar day of unexcused delay in achieving Final Completion.
21.3 If the Construction Manager 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
Construction Manager for the delay, the Construction Manager's compensation
shall be equitably adjusted to cover the Construction Manager's actual and
direct increased costs attributable to such delay.
21.4 If the Construction Manager 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 Construction Manager; unavoidable casualties; causes
beyond the Construction Manager'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 Construction Manager or by any cause which the
Construction Manager could reasonably control or circumvent; the Construction
Manager would have otherwise been able to timely perform all of its obligations
under this Contract for General Construction Management Services but for
such delay; and immediately but not later than seven (7) calendar days after
the beginning of any such delay the Construction Manager 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 Construction Manager will fail to achieve Final
Completion by the date of Final Completion, the Owner shall be entitled, but
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not required, to withhold from any amounts otherwise due the Construction
Manager 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 Construction Manager 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
Construction Manager 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 Construction Manager 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 Construction Manager 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 as inherent in Project of the character provided by the
Construction Manager, the Construction Manager 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 Construction Manager'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 Construction Manager'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.
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ARTICLE 23
CONSTRUCTION MANAGER'S RECORDS
23.1 The Construction Manager shall, concurrently with performance of its services,
prepare substantiating records regarding services rendered and goods
furnished.
23.2 The Construction Manager shall retain i� 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 Construction Manager 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 Construction Manager
receives notification of a dispute or the commencement of litigation regarding
the Project within this seven-year period, the Construction Manager shall
continue to maintain all Project records until final resolution of the dispute or
litigation.
23.2.2 The Construction Manager 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 Construction Manager shall make its
records available during normal business hours to the Owner, its authorized
representative(s) or 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 Construction Manager's records at the
copying party's reasonable expense, within adequate Project space at the
Construction Manager's facilities. Failure by the Construction Manager 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 Management Services.
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ARTICLE 24
PROPRIETARY DOCUMENTS AND CONFIDENTIALITY
24.1 All information, documents, and electronic media furnished by the Owner to the
Construction Manager 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 Construction Manager; and shall not be used by the
Construction Manager 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
Construction Manager 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 Construction Manager for the Project are the sole property of the Owner
free of any retention rights of the Construction Manager. The Construction
Manager 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 Construction Manager for the Project, free of any
copyright claims, trade secrets or other proprietary rights with respect to such
documents.
24.3 The Construction Manager 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
Management Services.
24.4 Because it is difficult to separate proprietary and confidential information from
that which is not, the Construction Manager 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 Construction Manager 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 Construction Manager 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 Management Services,
the Owner may, by written notice, order the Construction Manager 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 Construction Manager 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 Construction Manager 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 Construction Manager.
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 Construction Manager or
others.
26.1.3 In the event the Owner issues instructions to cease and desist, and in the
further event that the Construction Manager 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 Construction Manager, and the
Construction Manager 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 Construction Manager.
ARTICLE 27
TERMINATION OR SUSPENSION OF CONTRACT
27.1 The Owner may terminate this Contract for General Construction Management
Services for cause if the Construction Manager materially breaches this
Contract for General Construction Management 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;
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27.1.4 Disregarding laws, ordinances, rules, regulations or orders of any public
authority having jurisdiction over the Project;
27.1.5 Refusing, failing or being unable to substantially perForm in accordance with the
terms of the Contract for General Construction Management 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 Construction Manager.
27.2 Upon the occurrence of any of the events described in Paragraph 27.1, the
Owner may give written notice to the Construction Manager 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 Construction Manager fails
to initiate the cure or if the Construction Manager fails to expeditiously continue
such cure until complete, the Owner may give written notice to the Construction
Manager 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 Construction Manager;
27.2.5 Directly pay the Construction Manager's subcontractors and suppliers
compensation due to them from the Construction Manager;
27.2.6 Finish the Project by whatever method the Owner may deem expedient;
27.2.7 Require the Construction Manager to assign the Construction Manager's right,
title and interest in any or all of Construction Manager's subcontracts or orders
to the Owner.
27.3 If the Owner terminates the Contract for General Construction Management
Services for cause, and the Owner takes possession of all materials, tools,
construction equipment and machinery on the Site owned or leased by the
Construction Manager, the Construction Manager'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 Construction Manager
the Owner's damages resulting from the termination.
27.4 If the Owner terminates this Contract for General Construction Management
Services for cause, and it is subsequently determined by a court of competent
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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.
27.5 The Construction Manager may terminate this Contract for General
Construction Management Services for cause if the Owner materially breaches
this Contract for General Construction Management Services by:
27.5.1 Refusing, failing or being unable to make prompt payment to the Construction
Manager 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 Management Services or any other agreement between
the Owner and the Construction Manager.
27.5.3 Upon the occurrence of any of the events described in Paragraph 27.5, the
Construction Manager 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 Construction Manager, 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 Construction Manager
terminating this Contract for General Construction Management 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
Construction Manager 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 Construction Manager
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 Construction Manager 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 Construction Manager. Absent
agreement on the additional amount due the Construction Manager, the Owner
shall pay the Construction Manager:
27.7.1 Reasonable costs incurred in preparing to perform the terminated portion of the
Project, and in terminating the Construction Manager'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 Construction Manager 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;
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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 Management Services is terminated
by the Owner for cause pursuant to Paragraph 27.1, no further payment shall
be made to the Construction Manager until Final Completion of the Project. At
such time, the Construction Manager 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 Construction Manager, including liquidated damages
applicable thereto. The Construction Manager 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 Construction Manager 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 Management 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 Management Services is terminated, the
Construction Manager 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 Construction Manager 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 Construction Manager to exercise that right for
the benefit of the Owner, the Construction Manager or any other persons or
entities.
27.12 If the Construction Manager fails to file a claim within one (1) year from the
effective date of termination, the Owner shall pay the Construction Manager
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 Management Services shall be deemed
to be entered into in and shall be interpreted under the laws of the state of
Georgia.
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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 ofjurisdiction 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 jurisdictior� or venue other than that specified herein;
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
Management 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 Management 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 inediation, 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 Construction Manager, 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
Management Services or an agreement that incorporates this Contract for
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General Construction Management 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 Management 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 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 Management Services, no party to this Contract for
General Construction Management Services shall be required to participate in
or be bound by, any arbitration proceedings.
28.7 The Owner and the Construction Manager agree that pending the resolution of
any dispute, controversy, or question, the Owner and the Construction
Manager shall each continue to perForm their respective obligations without
interruption or delay, and the Construction Manager shall not stop or delay the
performance of the Project.
ARTICLE 29
DAMAGES AND REMEDIES
29.1 The Construction Manager 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 Management Services, or any other applicable warranty
or guarantee.
29.2 The Construction Manager shall promptly reimburse the Owner for any
expenses or damages incurred by the Owner as a result of the Construction
Manager's failure to substantially perforrn the work in accordance with the
terms of this Contract for General Construction Management Services; breach
of the warranties and guarantees set forth in this Contract for General
Construction Management Services or any other applicable warranty or
guarantee; or other deficiencies or omissions of the Construction Manager.
29.3 The Owner's selection of one or more remedies for breach of this Contract for
General Construction Management 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 Management Services or by law.
29.4 The Construction Manager 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.
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29.5 The Owner is entitled to interest on all amounts due from the Construction
Manager 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 Management Services represents the
entire and integrated agreement between the Owner and the Construction
Manager, and supersedes all prior negotiations, representations or
agreements, either written or oral, for the Project. This Contract for General
Construction Management Services may be amended only by written
instruments signed by both the Owner and the Construction Manager, and is
subject to such reasonable modifications as may be required by the Owner's
lenders or insurers.
30.2 If any provision of this Contract for General Construction Management
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 Management 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 Management Services.
30.4 No failure of the Owner to insist upon strict compliance by the Construction
Manager with any provision of this Contract for General Construction
Management Services shall operate to release, discharge, modify, change or
affect any of the Construction Manager's obligations.
30.5 This Contract for General Construction Management 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 Management Services, nothing contained in this Contract for
General Construction Management 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 Construction Manager.
30.6 All provisions of this Contract for General Construction Management 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 Management 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 Management Services in case of
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default. The Owner and the Construction Manager bind their successors and
assigns to the other party to this Contract for General Construction
Management Services.
30.8 Upon the request of the Owner, the Construction Manager shall execute
documents required by the Owner's lender whereby the Construction Manager
agrees that in the event of the Owner's default under, or the termination of, any
construction loan agreement, the Construction Manager will complete the
services required by this Contract for General Construction Management
Services under the terms and conditions contained herein so long as the lender
fulfills the obligations of the Owner toward the Construction Manager as set
forth in this Contract for General Construction Management Services.
30.9 The Owner and Construction Manager 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
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 befinreen 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
Construction Manager.
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
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and the same instrument, which shall be sufficient evidence by any one
thereof.
30.18 Use of Augusta, Georgia Landfill. All contracts for contractors performing
demolition and/or constnaction projects for Augusta, Georgia shall contain a
provision requiring that all debris, trash, and rubble from the project be
transported to and disposed of at the Augusta, Georgia Solid Waste Landfill in
accordance with the local and state regulations. The contractor shall provide
evidence of proper disposal through manifests, which shall include the types of
materials disposed of, the name and location of the disposal facility, date of
disposal and all related fees.
30.19 E-Verify: All contractors and subcontractors entering into contracts with
Augusta, Georgia for the physical performance of services shall be required to
execute an Affidavit verifying its compliance with O.C.G.A. § 13-10-91, stating
affirmatively that the individual, firm, or corporation which is contracting with
Augusta, Georgia has registered with and is participating in a federal work
authorization program. All contractors and subcontractors must provide their E-
Verify number and must be in compliance with the electronic verification of
work authorized programs operated by the United States Department of
Homeland Security or any equivalent federal work authorization program
operated by the United States Department of Homeland Security to verify
information of newly hired employees, pursuant to the Immigration Reform and
Control Act of 1986 (IRCA), P.L. 99-603, in accordance with the applicability
provisions and deadlines established in O.C.G.A. § 13-10-91 and shall
continue to use the federal authorization program throughout the contract
term. All contractors shall further agree that, should it employ or contract with
any subcontractor(s) in connection with the physical perFormance of services
pursuant to its contract with Augusta, Georgia the contractor will secure from
such subcontractor(s) each subcontractor's E-Verify number as evidence of
verification of compliance with O.C.G.A. § 13-10-91 on the subcontractor
affidavit provided in Rule 300-10-01-.08 or a substantially similar form. All
contractors shall further agree to maintain records of such compliance and
provide a copy of each such verification to Augusta, Georgia at the time the
subcontractor(s) is retained to perform such physical services;
30.20 Local Small Business Language: ln accordance with Chapter 108 of the
Au�usra, GA. CooE, Contractor expressly agrees to collect and maintain all
records necessary to forAugusta, Georgia to eva/uate the effectiveness of its
Local Small Business Opportunity Program and to make such records available
to Augusta, Georgia. The requirements of the Local Small Business
Opportunity Program can be found at www.augustaqa.qov. In accordance with
Au�us7'A, GA. Co�E § 1-10-129(d)(7), for a/l contracts where a/oca/ small
business goal has been established, the contractor is required to provide /ocal
sma/l business utilization reports. Contractor sha!l report to Augusta, Georgia
the total dollars paid to each local small business on each contract, and shall
provide such payment affidavits, regarding payment to subcontractors as may
be requested by Augusta, Georgia. Such documents sha/l be in the format
speci�ed by the Director of minority and small business opportunities, and shall
be submitted at such times as required by Augusta, Georgia. Failure to provide
such reports within the time period speci�ed byAugusta, Georgia shall entitle
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Augusta, Georgia to exercise any of the remedies set forth, induding but not
limited to, withho/ding payment from the contractor and/or collecting liquidafed
damages.
30.21 Georgia Prompt Pay Act not applicabie. The terms of this agreement
supersede any and all provisions of the Georgia Prompt Pay Act;
ARTICLE 31
INDEMNIFICATION
31.1 Nofinrithstanding anything to the contrary contained herein, the Construction
Manager 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 Construction Manager's perFormance or
failure to perform its obligations under this Agreement and any claim, damage,
loss 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
Construction Manager, anyone directly or indirectly employed by the
Construction Manager or anyone for whose acts the Construction Manager
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 Construction Manager, for itself and
for its subcontractors and suppliers, and the respective agents, employees and
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 limifi 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 Construction Manager, 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 Construction Manager for acts or failures to act by the
Arch itect.
31.3 To the fullest extent permitted by law, the Construction Manager 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
50 of 74
products of a particular manufacturer expressly required by the Owner or
Architect in writing. If the Construction Manager has reason to believe the use
of a required design, process or product is an infringement of a patent, the
Construction Manager shall be responsible for such loss unless such
information is promptly given to the Owner.
ARTICLE 32
CONSTRUCTION MANAGER'S REVIEWS AND EVALUATIONS
32.1 The Construction Manager 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 Construction Manager perForms any work which it knows involves a
recognized problem, conflict, defect, deficiency, inconsistency or omission in
the Contract Documents; or a variance befinreen 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 Construction Manager 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 Construction Manager 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. No extra charge or compensation will be considered
due to differences befinreen 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 Management Services,
the Construction Manager 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
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events prior to signing this Contract for General Construction Management
Services.
32.5 Claims resulting from the Construction Manager's failure to familiarize itself with
the Site or pertinent documents shall be deemed waived.
ARTICLE 33
PROHIBITION AGAINST CONTINGENT FEES
33.1 The Construction Manager 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, Exhibit F— Non Collusion Affidavit, and
Exhibit G— Authorization for Construction, Exhibit H— Unit Prices.
ARTICLE 25
ENTIRE AGREEMENT
35.1 This Agreement and its Exhibits and Attachments represent the entire and
integrated agreement between the Owner and the Construction Manager 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 Construction Manager
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In witness whereof, each individual executing this agreement acknowledges that
he/she/it is authorized to execute this agreement and further acknowledges the
execution of this agreement on the date signed below.
Owner: Constructi n Manager:
Auqusta, Georgia Turner C struction Com an
gy . � �
���
�� �� (Signature) (Seal) (Signature) (Seal)
3�h/r Deke Copenhaver Shannon Hines
(Name) (Name)
Mayor Senior Vice President
(Title) (Title)
530 Greene Street, Suite 806 3560 Lenox Road, Suite 1100
(Street Address — No PO Box) (Street Address — No PO Box)
Au usta, Geor ia 30901 Atlanta, Georgia 30326
(C't�r, ta , Zip) (City, State, Zip)
C'� 2--�`�-3 � I �.
Date of ignat �" � � ` � �, � �, , , Date of Signature
,
. �t� �-.
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3 ) �
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53 of 74
Exhibit A
Scope of Work
The scope of work includes the following:
General: The Construction Manager shall be required to use Constructware web based
project management software, with two (2) staff site access allotments provided by the
Owner.
Provide Construction Management Services for Renovations and Modernization of the
Municipal Building for the Owner, including but not limited to:
A. Pre-Construction Services
a. Design Review.
i. The Construction Manager shall actively and jointly participate with the
Owner and the Architect in formation of the final Project design.
ii. The Architect is required, in accordance with schedule requirement, to
provide Design Development design drawings. The Construction Manager
shall promptly and in accordance with schedule requirements:
1. familiarize itself with the Design Development design drawings;
2. analyze and evaluate the constructability of the Design Development
design drawings; and
3. analyze and evaluate the Design Development design drawings in
regard to the completeness of intended bid categories, conflicts or
overlaps in the divisions of the Work, design details affecting
construction, value engineering, identification of long-lead materials
affecting the Construction Schedule, availability of labor and other
factors affecting construction.
iii. The Construction Manager and the Architect shall jointly schedule and attend
regular meetings with the Owner to review and evaluate the Design
Development design drawings.
iv. The Construction Manager shall, in accordance with schedule requirements,
notify the Architect in writing and assist the Architect with the resolution, of all
problems, conflicts, defects or deficiencies identified during the review and
evaluation of the Design Development design drawings.
v. Upon completion of the Design Development design drawings, the CM and
CIPM, are required to prepare and submit an estimate of Total Project
Construction Cost broken down by line items into major construction
disciplines and systems.
vi. The Construction Manager shall, participate in an estimate reconciliation
meeting to review the Design Development estimate of Total Project
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Construction Cost and promptly inform the Owner and the Architect of
recommended adjustments, if any. The purpose of this meeting is to develop
a reconciled estimate that all Team members agree with so that the design
can continue to the ne� phase.
b. Construction Documents Review.
i. The Construction Manager is required, in accordance with the schedule
requirements, to Review Construction Documents and other information.
ii. The Construction Manager shall, in accordance with schedule requirements,
review applicable Construction Schedule(s), the estimate of Total Project
Construction Cost, the cost of local utilities, fees for permits and licenses, any
modifications necessitated by local conditions, other information necessary
for a full understanding of the Project, and the review Construction
Documents. The Construction Manager shall:
1. examine the review Construction Documents for clarity, adequacy of
detail, consistency, accuracy and completeness;
2. identify conflicts, omissions or overlaps in the proposed divisions of
the Work, evaluate the completeness of intended bid categories, and
identify unusual design details affecting construction cost and
schedules;
3. apply established value engineering principles and practices to reduce
the cost of the Project;
4. identify factors with the potential to impact the Construction Schedule
such as materials with long lead time, the unavailability of required
labor, and other factors and make suggestions for acceptable
alternatives;
5. evaluate and make suggestions to optimize Site utilization;
6. recommend proposed modifications or alternatives to the review
Construction Documents based on its evaluation and review;
7. notify the Owner and the Architect in writing of any variances befinreen
the Construction Documents and applicable laws, statutes, building
codes, rules and regulations of which it is aware; and
8. notify the Owner and the Architect in writing of all problems, conflicts,
defects or deficiencies in the review Construction Documents of which
it is aware or should be aware.
iii. The Construction Manager shall, in accordance with schedule requirements,
assist the Architect with the resolution of all problems, conflicts, defects or
deficiencies identified during the review and evaluation of the review
Construction Documents.
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iv. Upon completion of the examination of the review of the 60% Construction
Documents, the CM and CIPM are required, in accordance with schedule
requirements, to prepare and submit a 60% Construction Documents
estimate of Total Project Construction Cost.
v. If the final estimates of Total Project Construction Cost by the Construction
Manager and the CIPM differ materially, the Construction Manager and the
CIPM shall meet promptly to reconcile the discrepancies between their
estimates so as to permit submission to the Owner of a final estimate of Total
Project Construction Cost on which both the CIPM and the Construction
Manager agree.
c. Planning And Scheduling:
i. Construction Schedule. The Construction Manager understands and
acknowledges the Owner's intent that the Project will be complete by the
Date of Substantial Completion. The Construction Manager shall timely
prepare and submit the Construction Schedule for the Owner's review and
approval. The Construction Schedule shall complement, and shall not
conflict with, the Design Schedule.
ii. The Construction Manager shall establish and timely submit for Owner
review:
1. Project cost control procedures;
2. Project reporting procedures;
3. Project Manual;
4. Quality Management Program;
5. Local small business participation plan; and
6. Staffing Plan for the Construction period.
d. Guaranteed Maximum Price Proposal.
i. Guaranteed Maximum Price Proposal. The Construction Manager shall
prepare and deliver to the Owner, with copies to the Architect, a Guaranteed
Maximum Price ("GMP") proposal. The Construction Manager shall, at a
minimum, include in the GMP proposal:
1. a recital of the specific Construction Documents, including drawings,
specifications, and all addenda thereto, used in preparation of the
GMP proposal;
2. the three elements of the Construction Contract Price:
a. General Conditions Guaranteed Maximum Cost;
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b. estimated Subcontracts Cost, detailed by each subcontract, trade
or bid division, and including a reasonable (not exceeding 2%),
separately stated maximum contingency amount for each
subcontract, trade or bid division; and
c. the actual lump sum amount of the Management Fee;
3. a description of all other inclusions to or exclusions from the GMP;
a. all assumptions and clarifications;
b. the proposed Date of Substantial Completion upon which the
GMP is based;
c. an outline of preliminary Construction Schedule showing proposed
start and finish dates of major components of construction; and
d. the date by which the GMP proposal must be accepted by the
Owner.
e. General Conditions Cost. The General Conditions Costs for which the Construction
Manager may be paid pursuant to this Agreement shall be limited to the amounts
actually and reasonably incurred and paid by the Construction Manager in the
interest of the Project, and in performance of Services and the Work. For the
purposes of this contract, the general conditions costs are based on the construction
duration of 12 months beginning in the 2nd or 3rd quarter of 2012. Preconstruction
services will begin in the 1 st quarter of 2012. Items that are included within the
General Conditions Costs for which the Construction Manager is entitled to no
additional compensation include, without limitation:
i. Wages and salaries of the Construction Manager's supervisory, technical,
administrative and clerical personnel engaged in supervision and
management of the Work on or off the Project Site;
ii. Cost of fringe benefits, contributions, assessments and taxes, including for
example such items as Unemployment Compensation and Social Security, to
the extent that such cost is required by law and is based on the
compensation paid to the Construction Manager's employees;
iii. Costs, including transportation and storage, installation, maintenance,
dismantling and removal of materials, supplies, temporary facilities,
machinery, equipment, and hand tools not customarily owned by construction
workers, that are provided by the Construction Manager at the site and fully
consumed in the performance of the Work; and cost (less salvage value) of
such items if not fully consumed, whether sold to others or retained by the
Construction Manager. Cost for items previously used by the Construction
Manager shall mean fair market value;
iv. Costs incurred to provide site safety and security, including temporary stairs,
ladders, barricades, fire extinguishers, site security fences, perimeter
protection, first aid, etc.
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v. Costs of removal of debris from the site, etc.;
vi. Costs of document reproduction including bid sets, facsimile transmissions
and long-distance telephone calls, postage and parcel delivery charges,
telephone service at the site and reasonable petty cash expenses of the site
office, etc.;
vii. That portion of the reasonable expenses of the Construction Manager's
personnel incurred while traveling in discharge of duties directly connected
with the Work;
viii. That portion of insurance (GL and Auto), Builders Risk, and P& P bond
premiums that can be directly attributed to this Contract for Construction.
Premiums shall be net of trade discounts, volume discounts, dividends and
other adjustments;
ix. Fees and assessments for the building permit and for other permits, licenses
and inspections for which the Construction Manager is required by the
Contract for Construction to pay;
x. Data processing costs directly related to the Work; however, these costs shall
not include any hardware, soffinrare, or CADD costs unless approved by the
Owner in writing;
xi. Expenses incurred in accordance with the Construction Manager's standard
personnel policy for relocation and temporary living allowances of personnel
required for the Work, if approved by the Owner;
xii. The cost of obtaining and using all utility services (electric, gas, water,
sewer„ etc.) required for the Work, etc.;
xiii. Cost of temporary use of permanent equipment;
xiv. The cost of crossing or protecting any public utility, if required, and as
directed by the Owner;
xv. All reasonable costs and expenditures necessary for the operation of the site
office, such as stationary, supplies, blueprinting, furniture, fixtures, office
equipment and field computer services, provided that quantity and rates are
subject to Owner's prior written approval;
xvi. The cost of secure off-site storage space or facilities approved in advance by
Owner;
xvii. Printing and reproduction of the Construction Documents;
xviii. Rental charges for temporary facilities, and for machinery, equipment, and
tools not customarily owned by construction workers; however any rental
charge shall not exceed the purchase price of such facilities, machinery,
equipment or tools;
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xix. Costs for temporary toilet facilities, site surveys, field engineering, clean-up
(daily and final), etc.;
xx. Other expenses or charges properly incurred and paid in the prosecution of
the Work, with the prior written approval of the Owner.
�oci. General Condition's costs will be included in the Guaranteed Maximum Price
(GMP).
f. Management Fee. Items within the Management Fee for which the Construction
Manager is entitled to no additional compensation include, without limitation:
i. direct costs incurred with the exception of those specifically enumerated
compensable as a General Conditions Cost or a Subcontracts Cost;
ii. the cost of Construction Manager's home or branch office employees or
consultants not at the Project Site;
iii. non-field office (home and branch office) operational expenses such as
telegrams, telephone service and long-distance and zone telephone charges,
postage, office supplies, expressage, and other similar expenses;
iv. data-processing costs indirectly related to the Work; including hardware,
soffinrare, and CAD costs;
v. cost of all non-project specific insurance;
vi. all general operating expenses;
vii. all capital expenses, including any interest;
viii. all sales, use or similar taxes related to the Project imposed by any
governmental authority on the Construction Manager's services and non-
reimbursable costs,
ix. any costs which would cause the Construction Price to exceed the GMP; and
x. any costs or expenses incurred by the Construction Manager, not included in
the General Conditions Cost, for provision of management services
necessary to complete the Project in an expeditious and economical manner
consistent with this Contract For Construction and the best interests of the
Owner.
g. The Construction Manager acknowledges that the Construction Documents may be
incomplete at the time the Construction Manager delivers the GMP proposal, and
that the Construction Documents may not be completed until after commencement of
the Work. Nevertheless, the GMP proposal shall include payment for Work required
by the completed Construction Documents, and if the GMP proposal is accepted by
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the Owner, the Construction Manager shall be entitled to no increase in the GMP if
the Work required by the completed Construction Documents:
i. is required by this Contract For Construction,
ii. is reasonably inferable from the incomplete documents,
iii. is consistent with the Owner's stated goals and program objectives,
iv. is consistent with general industry standards for completion of the Work,
v. is not a substantial enlargement of the scope of Work portrayed by the
incomplete documents, or
vi. substantially conforms to the nature, type, kind or quality of Work depicted in
the incomplete documents.
h. If the GMP proposal is unacceptable to the Owner, the Owner shall promptly so
notify the Construction Manager in writing. Within fourteen calendar days of such
notification, the Owner, Professional(s) and Construction Manager shall meet to
discuss and resolve any differences, inconsistencies, or misunderstandings and to
negotiate recommended adjustments to the Work and/or to the GMP.
i. The Owner may, at its sole discretion and based upon its sole judgment,
i. indicate its acceptance of a GMP proposal;
ii. reject a GMP proposal;
iii. terminate the Project; or
iv. proceed to construct the Project using a party or parties other than the
Construction Manager.
j. If the Owner rejects a GMP proposal, neither parly shall have any further obligation
pursuant to the Contract for General Construction Management Services.
k. If the Owner accepts a GMP proposal, the parties shall complete and execute the
Exhibit G— Authorization for Construction, and the Owner shall issue a written notice
to the Construction Manager ("Notice To Proceed") establishing the date construction
is to commence (the "Commencement Date"). The Construction Manager shall not
expend any monies for construction prior to receipt of such Notice to Proceed without
the written approval of the Owner.
I. Price Guarantees.
i. Upon execution of Exhibit G, the Construction Manager guarantees that the
Construction Price shall not exceed the GMP. All costs or expenses that
would cause the Construction Price to exceed the GMP shall be borne by the
Construction Manager unless adjusted by change order.
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ii. Upon execution of Exhibit G, the Construction Manager guarantees that the
General Conditions Cost shall not exceed the General Conditions
Guaranteed-Maximum Cost and that all costs or expenses that would cause
the General Conditions Cost to exceed the General Conditions Guaranteed-
Maximum Cost shall be borne by the Construction Manager unless adjusted
by change order.
iii. Upon execution of Exhibit G, the Construction Manager guarantees that,
1. unless adjusted by change order, the final cost to the Owner of each
individual subcontract, trade or bid division shall not exceed the sum
total of the estimated cost and contingency for that subcontract, trade
or bid division as set forth in the GMP;
2. no unused contingency amount frorn any subcontract, trade or bid
division shall be transferred, carried over or applied to any other
subcontract, trade or bid division, but rather such unused contingency
shall inure to the Owner's benefit; and
3. the cost of any subcontract, trade or bid division exceeding the sum
total of the estimated cost and contingency for that subcontract, trade
or bid division shall be borne by the Construction Manager unless
adjusted by change order
iv. Upon execution of Exhibit G, the Construction Manager guarantees that to
the extent the GMP proposal includes contingencies, no unused contingency
shall be transferred, carried over or applied to any other GMP line item, but
rather such unused contingency shall inure to the Owner's benefit.
B. Construction Services
a. Bidding and Negotiation.
i. With the Architect's assistance, the Construction Manager shall prepare and
assemble document packets for use in bidding or negotiating the
Subcontracts Cost.
ii. The Construction Manager shall develop subcontractor and supplier interest
for each division of the Work and shall pre-qualify proposed subcontractors
using a pre-qualification form approved by the Owner and Architect.
iii. The Construction Manager shall:
1. submit to the Architect the proposed list of subcontractors and review
and evaluate information received from the Architect regarding
proposed subcontractors; and
2. evaluate the technical competence of all pre-qualified subcontractors.
iv. The Construction Manager shall negotiate or competitively bid each trade
category only by invitation to pre-qualified subcontractors. In the event a
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subcontractor does not meet a pre-qualification requirement, the Construction
Manager in its best judgment may, with the Owner's prior approval, still allow
the subcontractor to bid. The Construction Manaqer shall obtain a minimum
of 5 pre-qualified subcontractors for each specification section with a value
over $25,000.
v. The Construction Manager shall review the subcontract breakdowns utilized
in the GMP and use its best efforts to obtain bids which are less than the final
GMP estimates.
vi. The Construction Manager shall conduct private bid openings in the presence
of the Owner's Representative. The Construction Manager shall
communicate bid results to the Owner and the Architect, and to no other
persons or entities.
vii. The Construction Manager shall, for each subcontract, trade or bid division:
1. determine the final bid amounts,
2. prepare and furnish to the Owner a bid tabulation which includes by
subcontract, trade and/or bid division, the applicable final GMP
estimate and the related final bid amount;
3. identify to the Owner in writing the subcontractors to which the
Construction Manager recommends award of subcontracts; and
4. award and enter into a subcontract between itself and each
subcontractor which it has recommended, unless otherwise notified by
the Owner.
b. Construction Supervision.
i. Commencing with the award of the first subcontract and terminating on the
Date Of Final Completion, the Construction Manager shall provide the
following services:
1. The Construction Manager shall supervise and direct the Work at the
Site. The Construction Manager shall, at a minimum, staff the Project
Site with personnel who shall:
a. supervise and coordinate the Construction Manager's personnel
and act as its primary liaison with the Owner and the Owner's
Consultant(s);
b. coordinate trade contractors and suppliers, and supervise Site
construction management services;
c. be familiar with all trade divisions and trade contractors' scopes of
Work, all applicable building codes, the Construction Documents,
and this Contract For Construction;
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d. check and review shop drawings and materials delivered to the
Site, regularly review the Work to determine its compliance with
the Construction Documents and this Contract For Construction,
periodically confer with the appropriate Owner's consultant(s) to
assure acceptable levels of quality; and
e. prepare and maintain Project records, process documents, and
staff the Site field office.
2. The Construction Manager shall promptly reject any Work which does
not conform to the Construction Documents or which does not comply
with any applicable law, statute, building code, rule or regulation of
any public authority or agency of which it is aware. The Construction
Manager shall immediately notify the Architect(s) and the Owner in
writing when it has rejected any Work.
3. The Construction Manager shall comply with and cause its
subcontractors and suppliers to comply with the Project Construction
Schedule and applicable sub-schedules. The Construction Manager
shall obtain and review schedules from subcontractors and suppliers,
coordinate sub-schedules with the Construction Schedule, and
enforce compliance with the all applicable schedules to insure timely
completion of the Work. If at any time a Project is delayed, the
Construction Manager shall immediately notify the Owner of the
probable cause(s) and possible alternatives, and make
recommendations to minimize expense to the Owner.
4. The Architect will visit the Project Site at intervals appropriate to the
stage of construction and with sufficient frequency to familiarize itself
with the progress and quality of the Work and to inspect the Work
The Construction Manager shall request that the Architect visit the
Site at additional times as the Construction Manager deems
necessary to attend meetings, inspect the Work, and render
interpretations regarding the Work necessary for the proper execution
of the Work. The Architect's interpretations and decisions shall be
final regarding the Construction Documents and the Work.
c. Construction Manager's On-Site Facilities.
i. Commencing at the Date of Commencement and terminating on the Date Of
Final Completion, the Construction Manager shall provide a Site field office
and toilet facilities at the Project Site.
1. The field office facilities shall be large enough to accommodate
required meetings and shall include office furnishings and equipment
such as desks, telephones, computers, copiers and other similar
office equipment.
2. The Construction Manager shall maintain in the Site field office, on a
current basis, all necessary Construction Documents, schedules,
shop drawings, product data, samples, purchase orders, maintenance
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manuals and instructions, daily logs, correspondence, memoranda,
and all other Project-related documents.
3. The Construction Manager shall provide temporary toilets at the Site
for all workers for the duration of the construction period.
4. The Construction Manager shall provide in the field office a
workstation with phone and web access for the Owner's
Representative, included in the GMP.
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Exhibit B
Provisional Project Schedule
The Project Schedule for both Design and Construction will be determined during the
Project kickoff meetings and will be added to this contract as Exhibit "B".
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Exhibit C
Initial List of Drawings, Specifications, and Addendums
(To Be Done in Pre-Construction)
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Exhibit D
Insurance
Insurance Requirements
1. Statutory Projector'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, Georgia, the Owner's Representative, the Architect, and any other
applicable Authority should be shown as an additional insured on General
Liability and Auto Liability policies. Certificate Holder should read: Augusta,
Georgia, 530 Greene Street, Augusta, Georgia 30901.
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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Construction Manager'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 Construction Manager Liability
8. Certificates of Insurance, and any subsequent renewals, must reference speci�c
bid/contract by project name and project/bid number.
9. The Construction Manager shall agree to provide complete certified copies of
current insurance policy(ies) if requested by the City to verify the compliance with
these insurance requirements.
10. All insurance coverages required to be provided by the Construction Manager will
be primary over any insurance program carried by the City.
11. The Construction Manager 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 Construction Manager 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
Construction Manager at the Construction Manager's expense.
12. The Construction Manager, 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 City as to form and content
has been filed with the city. 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 Construction Manager shall agree to waive all rights of subrogation against
the City, the City Council, its officers, officials, employees, the Owner's
Representatives, the Architect, and volunteers from losses arising from work
perFormed by the Construction Manager for the City.
14. Builders Risk Insurance - All Risk Construction Managers' 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 City will be included as a Loss
Payee in this coverage for City owned equipment, tools, supplies and contents.
Construction Manager's Risk Insurance which includes without duplication, but is
not limited to, fire (with extended coverage), theft, vandalism, malicious rnischief,
collapse, earthquake, flood, windstorm, false work, testing and startup, temporary
buildings and debris removal; and names the Owner, the Owner's
Representative, the Architect, and the Owner's Related Parties, with coverage
for one hundred (100%) percent of the insurable value of the Construction
Manager's scope of the Project, and a per-claim deductible of $10,000.00.
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15. The Construction Manager shall make available to the City, through its records or
records of their Insurer, information regarding a specific claim. Any loss run
information available from the Construction Manager or their insurer will be made
available to the city upon their request.
16. Compliance by the Construction Manager and their Subcontractor's and each
and every Sub-Subcontractor with the foregoing requirements as to carrying
insurance shall not relieve the Construction Manager and their Subcontractor's
and each and every Sub-Subcontractor of their liability provisions of the Contract.
17. The Construction Manager 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 Construction Manager shall at a minimum apply risk management practices
accepted by the Construction Manager'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 Construction Manager 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 Construction Manager 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 Construction Manager 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 Construction Manager 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 Construction Manager or to check or verify the Construction
Manager's compliance with any or all requirements regarding insurance imposed
by the Contract Documents. The Construction Manager 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 Construction Manager not
comply with any or all requirements regarding insurance imposed by the Contract
Documents.
24. Should the Construction Manager 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
Construction Manager over policy coverage or Limits of Liability as required
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herein, the Owner shall be entitled to recover from the Construction Manager 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 expenses incurred in securing such
determination and any other consequential damages arising out of the failure of
the Construction Manager 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 Construction Manager is responsible as a matter of law.
25. The Construction Manager shall deliver to the Owner finro (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 Construction
Manager 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 Management Services, and the Owner shall be entitled to pursue
any remedy in law or equity if the Construction Manager fails to comply with the
contractual provisions of this Contract for General Construction Management
Services. Indemnity obligations specified elsewhere in this Contract for General
Construction Management 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 Construction Manager 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 Construction
Manager, and to anyone claiming by, through or under the Construction
Manager, 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
Auqusta, Georqia Municipal Buildinq
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:
Construction Manager's Signature Date
Owner's Signature Date
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Exhibit F
Non Collusion Affidavit
NON COLLUSION AFFIDAVIT
Date:
Project: Renovations and Modernization of the Augusta, Georgia Municipal
Buildin
Pro'ect #: 10-195
Project Renovations to the Augusta Municipal Building
Descri tion:
Services Construction Management
Provided:
State of: Georgia
County of: Richmond
I, being first duly sworn, deposes and says that he/she is Select From List 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 Augusta, Georgia, 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.
Construction Manager:
Turner Construction Comnanv
(Signature) (Seal)
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Exhibit G
Authorization for Pre - Construction
Pursuant to this agreement, the Owner and the Construction Manager hereby execute
this Exhibit G and further agree as follows:
1. The Construction Manager's Guaranteed Maximum Price ("GMP") proposal dated
T�J� , attached hereto and incorporated herein, is accepted by the
Owner.
2. The General Conditions Guaranteed Maximum Cost for
the Project, including this Bid Package, is: $ 966,065.00
3. Preconstruction Services is: $ 66,745.00 �vrP � r/��e%.,
4. The Subcontracts Cost is:
°..ly
Bid Package #1 $ TBD
Bid Package #2 $ TBD
Bid Package #3 $ TBD
Bid Package #4 $ TBD
5. The Lump Sum Fixed Management Fee is: $ 260,371.00
6. The Guaranteed Maximum Price is: $ TBD
7. The Date of Substantial Completion shall be 20 months after
Notice-to-
Proceed
Owner: Construction Manager:
Auausta, GeorQia Tumer Construction Companv
By:
�G/y� (Signature) (Seal) (Signature) (Seal)
���'�'� Deke Copenhover Si�a�ten-1-��� �' L« ��''�' i4 l �
(Name) (Name)
Mayor
�-�d�-�lv.-s (�/►9'
(Title) (Title)
530 Greene Street, Suite 806 3560 Lenox Road, Suite 1100
(Street Addres;� =w[Vo PO Box) (Street Address — No PO Box)
.
Aug�sfa, Georgr"a.�� � Atlanta, Georgia 30326
, (C'�r, �, �t,�r�.' ; � "• (City, State, ZiP)
� � :� `�j a a a � �
' Date of S' nature
`t� { �4 tl�
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