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HomeMy WebLinkAboutCONTRACT BETWEEN AUGUSTA GA AND TOTAL SYSTEMS COMMISSIONG WEBSTER DETENTION AN INMATE PROCESSING CENTERSTANDARD FORM OF CONTRACT FOR COMMISSIONING AUTHORITY SERVICES LUMP SUM BETWEEN AUGUSTA, GEORGIA (hereinafter referred to as the Owner) AND Total Systems Commissioning, Inc. (hereinafter referred to as the Commissioning Authority) Date: 5 -2 -2012 The Commissioning Authority Services required by this Contract are to be rendered for the following project, hereinafter identified as the "Project" Project Name: Augusta, Georgia, Webster Detention Center, An Inmate Processing Center Project Address: 1941 Phinizy Rd City /State /Zip: Augusta, Georgia 30901 General Project Description: Augusta, Georgia intends to construct a new 32,000 SF(approx.). Inmate Processing Center at the Webster Detention Center. This addition will be connected to the existing building. It is also proposed to renovate 3 existing areas as follows: The existing Amin Area of approx. 5,300 SF, and the existing Transportation and Medical Areas of approx. 2,650 SF total. The new facility will be LEED certified (minimum level) according to the current 3.0 version. AGREEMENT FOR COMMISSIONING AUTHORITY SERVICES TABLE OF CONTENTS Page Article 1 Definitions 3 Article 2 Relationship of the Parties 5 Article 3 Basic Services 4 Article 4 Compensation 8 Article 5 Period of Services 8 Article 6 Owner's Responsibilities 10 Article 7 Notices 9 Article 8 Insurance 9 Article 9 Indemnification 10 Article 10 Termination of Agreement 11 Article 11 Dispute Resolution 13 Article 12 Successors /Assignment/Third Parties 15 Article 13 Ownership of Documents/ Confidential Information 15 Article 14 Additional Provisions 16 Exhibit A Project Documents Exhibit B Master Project Construction Schedule Exhibit C Scope of Services 1 This Contract for Commissioning Authority Services is entered into between: Owner's Name: Owner's Address: City /State /Zip: Firm Name: Address: City /State /Zip: This Contract for Commissioning Authority Services is executed under seal, and shall be effective on the date signed by the last party to do so. AUTHORIZED REPRESENTATIVES: The authorized representatives and addresses of the Owner. The Architect and the Commissioning Authority are: Owner's Representative (Augusta Office) Firm Name: Heery International, Inc. Name: Richard Ingram Address: 530 Greene Street, Suite 312 City /State /Zip: Augusta, Georgia 30901 E Mail Address: ringram @augustga.gov Phone: 706 - 842 -5543 Cell: 706 - 836 -9137 Firm Name: Name: Address: City /Address /Zip E Mail Address: Phone: Firm Name: Name: Address: City /State /Zip: E Mail Address: Cell Phone Augusta, Georgia 530 Greene Street Augusta, GA 30901 Commissioning Authority Total Systems Commissioning, Inc. 2020 Howell Mill Road, Suite C, Box 309 Atlanta, GA 30318 Architect's Representative Johnson Laschober & Associates, P.C. Ralph Salzmann 1296 Broad Street Augusta, GA 3030901 rsalzmann@theJLAgroup . com 706 - 724 -5756 Cell: Owner and Commissioning Authority's Representative Total Systems Commissioning, Inc. Richard C. Dutro 2020 Howell Mill Road, Suite C, Box 309 Atlanta, GA 30318 ddutro@pscx.org 404 - 457 -3768 NOW, THEREFORE in consideration of mutual promises, covenants and agreements stated herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Owner and the Commissioning Authority agree: 2 706 - 825 -8428 The following words and phrases where appearing in initial capitalization, shall for the purposes of this Agreement have the following meanings: 1.1 ARTICLE 1 DEFINITIONS PROJECT. The Project shall be: Commissioning consulting work associated with architectural, engineering, design, construction, equipment testing /start -up and associated work, as described herein, for the new Augusta, Georgia Sheriffs Office Building including design and construction documents, bidding, construction administration and post- construction services. 1.2 SERVICES. The Services to be performed by the Commissioning Authority under this Agreement shall consist of the Basic Services and any Additional Services both as defined herein. 1.3 BASIC SERVICES. Basic Services shall consist of the commissioning services as described in Article 3 and as indicated and specifically designated in Exhibit "C" to be performed and provided by the Commissioning Authority under this Agreement in connection with the Project. 1.4 ADDITIONAL SERVICES. Additional Services shall consist of the commissioning services agreed to be performed by the Commissioning Authority in connection with the Project but which are not specifically designated as Basic Services. 1.5 WORK. The Work shall consist of the total construction, design and related services (excluding the Services rendered by the Commissioning Authority) performed on the Project. 1.6 PROJECT DOCUMENTS. The Project shall be completed in accordance with the following Project Documents which were prepared or approved by the Owner prior to the execution of this Agreement between the Commissioning Authority and the Owner: 1. Owner /Construction Program Manager Contract. 2. Building Program, including any modifications mutually agreed to, in writing, between the parties to this agreement. 3. Master Schedule. 1.7 CONSTRUCTION CONTRACT DOCUMENTS. The Construction Contract Documents shall consist of the plans and specifications prepared by the Design Consultant and Commissioning Authority, and any addenda and change orders thereto, the Owner's Project Manual documents such as the Conditions of the 3 Contract, Contract Forms, Bidding Requirements, etc., and the Owner - Construction Manager at Risk agreement, all of which shall be compatible and consistent with this Agreement and the Owner /Construction Program Manager Contract. 1.8 CONSTRUCTION MANAGER AT RISK (CM at Risk). The CM at Risk is the person or entity which enters into an agreement with the Owner to perform the construction of or any construction on the Project, including, without limitation, the providing of labor, materials, and equipment incorporated or to be incorporated into the Project. The term "CM at Risk" means the Construction Manager at Risk or its authorized representative, but excludes the Construction Program Manager and the Commissioning Authority. 1.9 BASIC SERVICES COMPENSATION. Basic Services Compensation shall be the lump sum fee designated in Article 4 to be paid by the Owner to the Commissioning Authority in connection with the performance of the Basic Services by the Commissioning Authority. 1.10 ADDITIONAL SERVICES COMPENSATION. Additional Services Compensation shall be the fees determined in accordance with Article 7 to be paid by the Owner to the Commissioning Authority in connection with the performance of Additional Services. 1.11 REIMBURSABLE EXPENSES. In connection with Additional Services, Reimbursable Expenses are those actual expenditures made by the Commissioning Authority, its employees, or its Professional Consultants in the interest of the Project including but not limited to, County standard per diem out - of- pocket expenses for travel and living expenses in connection with the Project, long distance telephone, telex, expressage, professional consultants (other than those required for the performance of the Basic Services), and Owner - approved document reproduction. Pre - approved document reproduction expenses for Basic Services include expenses incurred for review submittals required by the Agreement, Bidding Documents, exclusive of addenda, and documents issued for permitting and /or construction. Travel expenses for Basic Services shall be covered by Basic Services Lump Sum. 1.12 MASTER PROJECT CONSTRUCTION SCHEDULE. The Master Project Construction Schedule is a tabulation of the major activities, phases, sequences and timing of the major project activities for design, construction procurement, construction and occupancy as described in "Exhibit `B." 1.13 DESIGN PHASE CHANGE ORDER. A Design Phase Change Order is the form of documentation from the Owner approving and authorizing a modification to the Program, Budget, Master Schedule, or previously approved Commissioning Phase documents. 4 1.14 DESIGN CONSULTANT. The architect /engineer hired by the Owner to design the new Sheriff's Office Building. ARTICLE 2 RELATIONSHIP OF THE PARTIES 2.1 COMMISSIONING CONSULTING SERVICES. The Commissioning Authority shall provide professional building commissioning consulting services for the Project in accordance with the terms and conditions of this Agreement. The Commissioning Authority's performance of services shall be as professional consultant to the Owner to carry out the activities of Building Commissioning and to provide the technical documents and supervision to achieve the Owner's Project objectives. 2.2 COMMISSIONING AUTHORITY SERVICES. The Commissioning Authority understands that the Owner has entered into a separate contract with a Design Consultant, which includes related engineering, and agrees to communicate, through the Construction Program Manager, with the Design Consultant on matters pertaining to building systems, including mechanical, electrical, plumbing and exterior envelope, to the extent needed to support the Design Consultant's mission to design the facility and its systems in accordance with the design intent. 2.3 OWNER REPRESENTATION. The Construction Program Manager is under separate contract with the Owner to provide construction program management services. The Construction Program Manager has no Commissioning responsibilities of any nature. None of the activities of the Construction Program Manager supplant or conflict with the any other services and responsibilities customarily furnished by the Commissioning Authority or subconsultants in accordance with generally accepted commissioning practices except as otherwise modified by this Agreement. The Commissioning Authority understands and agrees that the Construction Program Manager is the Owner's exclusive representative to the Commissioning Authority, Design Consultant and CM at Risk insofar as this Agreement is concerned. All instructions by the Owner to the Commissioning Authority relating to services performed by the Commissioning Authority will be issued or made through the Construction Program Manager. All communications and submittals of the Commissioning Authority to the Owner, Design Consultant and CM at Risk shall be issued or made through the Construction Program Manager unless the Construction Program Manager shall otherwise direct. The Construction Program Manager shall have the authority to establish procedures, consistent with this Agreement, to be followed by the Commissioning Authority, Design Consultant and CM at Risk and to call periodic conferences to be attended by the Commissioning Authority, and his subconsultants, throughout the term of this Agreement. 2.4 The Commissioning Authority understands and agrees that it is not a third party beneficiary of any contract between the Owner and the Construction Program 5 Manager or of their performance thereunder; nor is Commissioning Authority a third party beneficiary of any contract between the Owner and the Design Consultant or the CM at Risk. The Commissioning Authority waives any rights, claims or causes of action it may have as an alleged third party beneficiary of any such contracts or of the performance of the parties thereunder. 2.5 CONMMISSION AUTHORITY REPRESENTATION. 2.5.1 The Commissioning Authority shall provide a list of all consultants which the Commissioning Authority intends to utilize relating to the Project. The list shall include such information on the qualifications of the consultants as may be requested by the Owner. The Owner, through the Construction Program Manager, reserves the right to review the consultants proposed, and the Commissioning Authority shall not retain a consultant to which the Owner, through the Construction Program Manager, has a reasonable objection. 2.5.2 The Commissioning Authority shall provide to the Owner, through the Construction Program Manager, a list of the proposed key project personnel of the Commissioning Authority and its consultants to be assigned to the Project. This list shall include such information on the professional background of each of the assigned personnel as may be requested by the Owner, through the Construction Program Manager. Such key personnel and consultants shall be satisfactory to the Owner and shall not be changed except with the consent of the Owner unless said personnel cease to be in the Commissioning Authority's (or its consultants, if applicable) employ. 2.6 DIVISION OF RESPONSIBILITIES /SERVICES. The Commissioning Authority understands and agrees that should the Construction Program Manager provide the Commissioning Authority with any estimating assistance, cost or time control recommendations or other consultation, recommendations or suggestions, any or all such activities on the part of the Construction Program Manager or any other representative of the Owner shall in no way relieve the Commissioning Authority of the responsibility of fulfilling its obligations and responsibilities under this Agreement. ARTICLE 3 BASIC SERVICES 3.1 SCOPE OF SERVICES. 3.1.1 The Basic Services to be provided by the Commissioning Authority shall be performed in accordance with Exhibit "C ". 3.2 COMMISSIONING AUTHORITY'S PROFESSIONAL RESPONSIBILITY AND STANDARD OF CARE. 3.2.1 By execution of this Agreement, the Commissioning Authority warrants that (a) it is an experienced commissioning firm having the skill and the legal and 6 professional ability necessary to perform all the Services required of it under this Agreement in connection with the design, construction and commissioning of a project having the scope and complexity of the Project contemplated herein; (b) it has the capabilities and resources necessary to perform its obligations hereunder; and (c) it is familiar with all current laws, rules and regulations which are applicable to the commissioning of the Project (such laws, rules and regulations including, but not limited to, all local ordinances, requirements of building codes of city, county, state and federal authorities which are applicable to the Project, local sanitary laws and rules and regulations, and all orders and interpretations by governing public authorities of such ordinances, requirements, laws, rules and regulations in effect at the time of commencement of services on the Project), and that all drawings, specifications and other documents prepared by the Commissioning Authority shall be prepared in accordance with and shall accurately reflect and incorporate all such laws, rules and regulations. 3.2.2 The Commissioning Authority hereby represents and agrees that the plans, specifications and other documents prepared by it pursuant to this Agreement shall be complete and functional for the purposes intended, except as to any deficiencies which are due to causes beyond the control of the Commissioning Authority, and that the Work, if implemented in accordance with the intent established by such plans, specifications and other documents, shall be sound and a complete and properly functioning facility suitable for the purposes for which it is intended. 3.2.3 The Commissioning Authority shall be responsible for any errors, inconsistencies or omissions in their plans, specifications, and other documents. While the Commissioning Authority cannot guarantee the various documents required herein to be completely free of minor human errors and omissions, it shall be the responsibility of the Commissioning Authority throughout the period of performance under this Agreement to use due care with professional competence. The Commissioning Authority will correct at no additional cost to the Owner any and all errors and omissions in the plans, specifications and other documents prepared by the Commissioning Authority. The Commissioning Authority further agrees, at no additional cost, to render assistance to the Owner in resolving problems relating to the design or specified materials. 3.2.4 In the event of a construction change order resulting from completed construction work that must be demolished, disassembled, redone or removed, as a result of errors or omissions in the Commissioning Authority's drawings and specifications, the Commissioning Authority assents to the Owner's right to withhold payments to Commissioning Authority, in the amount of the change order that is attributable to the errors and omissions. The Owner shall not have the right to unjust enrichment or withholding payments to the Commissioning Authority for portions of change orders that convey reasonable value to Owner, such as approved work or materials associated with the finished building. 7 3.3 PROJECT REQUIREMENTS. 3.3.1 The Commissioning Authority shall receive the project documents as outlined in Exhibit "A" Project Documents. 3.3.2 Incorporated herein and made a part of this Agreement by reference as Exhibit "A" is the Design Development Phase Submittal which defines the physical and environmental parameters for the Project and establishes the design objectives and criteria. No deviations from the design shall be allowed without written approval the Owner 3.3.3 Incorporated herein and made a part of this Agreement by reference as Exhibit "C" is the Project Master Schedule, which defines the sequence and timing of the design and construction activities. 3.4 PROJECT CONFERENCES. 3.4.1 Throughout all phases of the Project, the Commissioning Authority and its consultants shall meet periodically with the Owner and Construction Program Manager no less than as indicated herein. Attendees shall be as jointly determined by the Owner, Construction Program Manager and Commissioning Authority. As a minimum, regularly scheduled meetings which the Commissioning Authority will attend include: 3.4.1.1 Design Phase: 60% Construction Documents Review and Subsequent CD reviews (90 %, 100 %) Construction Phase: At least once a month after 50% installation and through Substantial Completion of any of the following: mechanical, electrical, plumbing and /or security systems. And in addition attend four Commissioning status report meetings which the Commission Consultant shall prepare an agenda, run the meeting, take minutes and distribute the minutes to the attendees. 3.4.2 The Commissioning Authority shall be responsible for scheduling and attending any and all meetings (logging, test...etc.) necessary to properly coordinate the commissioning effort and to complete all reports. ARTICLE 4 COMPENSATION 4.1 BASIC SERVICES COMPENSATION 4.1.1 The Owner shall compensate the Commissioning Authority in accordance with the terms and conditions of this Agreement, including the following: 4.1.2 For the Basic Services of the Commissioning Authority, Basic Services Compensation shall be in the amount $44,800.00 8 4.1.3 The Basic Services Compensation stated in paragraph 4.1.1 includes all compensation and other payments due the Commissioning Authority (manpower, overhead, profit, direct costs, etc.) in the performance of the Basic Services. 4.2 PAYMENTS TO THE COMMISSIONING AUTHORITY. Payments on account of the Commissioning Authority shall be made as follows: 4.2.1 Payments for Basic Services shall be made monthly in proportion to services performed so that the compensation at the completion of each Phase shall equal the following percentages of the Basic Services Compensation. Design Development Review Initial Plan 25% Construction Document Phase 40% Bidding and Negotiations Phase 45% Construction Phase (pre- Commissioning) 60% Commissioning Phase 90% Close -out and Turnover All Required Reports 95% Notifications from USGBC of LEED Certification 100% 4.2.2 No deductions shall be made from the Commissioning Authority's Basic Services Compensation on account of penalty, liquidated damages, retainage or other sums withheld from payments to Contractor. 4.2.3 If the Project is suspended for more than six months or abandoned in whole or in part by the Owner, the Commissioning Authority shall be paid compensation for services performed prior to receipt of written notice from the Owner of such suspension or abandonment, and all reasonable termination expenses resulting from such suspension or abandonment. If the Project is resumed after being suspended for more than six months, the Commissioning Authority's Basic Services Compensation shall be equitably adjusted. 4.2.4 All payment requests shall be submitted to the Construction Program Manager for processing in a format acceptable to the Construction Program Manager. 4.3 ADDITIONAL SERVICES COMPENSATION. 4.3.1 With respect to any Additional Services performed by the Commissioning Authority, the Commissioning Authority and Owner shall negotiate an equitable adjustment to the Basic Services Compensation. No Additional Services shall be performed and will not be paid for without prior written authorization from the Owner or the Owner's Representative. 4.4 ACCOUNTING RECORDS. 4.4.1 Records of the Commissioning Authority with respect to Additional Services and payroll, consultant and other expenses (including Reimbursable Expenses) pertaining to the Project, shall be kept on generally accepted accounting principles 9 and shall be available to the Owner or its authorized representative for inspection and copying at mutually convenient times. 4.4.2 At the request of the Owner or its authorized representative the Commissioning Authority will supply in a timely manner and certify as accurate, unaltered copies of all time sheets, invoices, and other documents to substantiate and document any and all Additional Services and Reimbursable Expenses. ARTICLE 5 PERIOD OF SERVICE 5.1 Unless earlier terminated as provided in Article 10 hereof, this Agreement shall remain in force for a period which may reasonably be required for the Basic Services and Additional Services hereunder. However, the provisions of the Agreement relating to Professional Responsibility (paragraph 3.2); Dispute Resolution (Article 11); Professional Liability coverage (Article 8); Indemnification (Article 9); and Ownership of Documents /Confidential Information (Article 13) shall remain in effect after termination of the other provisions of the Agreement. 5.2 If the Project is delayed through no fault of the Commissioning Authority, all specific dates noted in the Master Schedule that are affected by the delay will be adjusted by the number of calendar days of the delay. 5.3 If the Owner materially revises the Project, a reasonable time extension and /or credit shall be negotiated between the Commissioning Authority and the Owner. 5.4 Time is of the essence of this Agreement. ARTICLE 6 OWNER'S RESPONSIBILITIES 6.1 The Owner shall provide full information regarding the requirements for the Project. 6.2 The Owner shall examine documents submitted by the Commissioning Authority and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of the Commissioning Authority's Services. 6.3 The Owner shall furnish copies of design architects /engineer's interim review submittals including Schematic Design, Design Development, 60% CD's and 90% CD's for use in performing the scope of work described herein. 6.4 All services, information, surveys and reports required of the Owner, shall be furnished at the Owner's expense and the Commissioning Authority shall be entitled to rely upon their accuracy and completeness. 10 6.5 The Owner shall furnish information and approvals required of it expeditiously, for orderly progress of the Work and shall endeavor to adhere as closely as possible with the time conditions for such Owner activities as set forth in all approved schedules for the Project. 7.1.1 To Owner: ARTICLE 7 NOTICES 7.1 Any notice required by this Agreement or other communications to either party by the other shall be in writing and deemed given when delivered personally or five (5) days after deposit in the United States Post Office, postage prepaid certified mail, return receipt requested, addressed as follows, or to such other address as shall be duly given by notice meeting the requirement of this Article. Mr. Fred Russell Augusta Richmond County Administrator 530 Greene Street, Room 801 Augusta, GA 30911 7.1.2 To Commissioning Authority: Richard Dutro Total Systems Commissioning, Inc. 2020 Howell Mill Road, Suite C, Box 309 Atlanta, GA 30318 7.1.3 With Copy to Construction Program Manager: Richard Ingram Heery International, Inc. 530 Greene Street; Suite 312 Augusta, GA 30901 ARTICLE 8 INSURANCE 8.1 The Commissioning Authority shall purchase and maintain insurance for protection from claims under worker's or workmen's compensation acts; claims resulting from negligent acts or omissions for damages because of bodily injury, including personal injury, sickness, disease or death of any of the Commissioning Authority's employees or any other person; claims for damages because of injury to or destruction of personal property including loss of use resulting there from; and claims arising out of the performance of this Agreement and caused by negligent acts or omissions for which the Commissioning Authority is legally liable. Minimum limits of coverage shall be: 11 INSURANCE DESCRIPTION a. Worker's Compensation b. Public Liability Bodily Injury: Each Person Bodily Injury: Each Accident Property Damage: Each Accident c. Automobile Liability & Property Damage Bodily Injury: Each Person Bodily Injury: Each Accident Property Damage: Each Accident d. Professional Liability: 8.2 Evidence of such insurance shall be furnished to the Owner, and the Owner shall receive thirty (30) days prior written notice of any cancellation, non - renewal or reduction of coverage of any of the policies. Upon notice of such cancellation, non- renewal or reduction, the Commissioning Authority shall procure substitute insurance so as to assure the Owner that the minimum limits of coverage are maintained continuously throughout the period of this Agreement. 8.3 The Commissioning Authority shall deliver to the Owner a certificate of insurance for its Professional Liability coverage annually, so long as it is required to maintain such coverage under paragraph 9.4. 8.4 All insurance policies (with the exception of Professional Liability) required under this Agreement shall name the Owner as an additional insured for the insurance and shall contain a waiver of subrogation against the Owner. 8.5 The Commissioning Authority shall maintain in force during the performance of this contract and for 2 years after final completion of the Project, the Professional Liability insurance coverage referenced above. ARTICLE 9 INDEMNIFICATION Minimum Required Coverage Statutory $1,000,000 Combined Limit $100,000 $200,000 $100,000 $1,000,000 Combined Limit $100,000 $200,000 $100,000 $1,000,000 per Loss /Claim 9.1 Notwithstanding anything to the contrary contained herein, the Commissioning Authority shall indemnify and hold harmless the Owner, the Construction 12 Program Manager and their agents and employees from and against all claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from (i) the Commissioning Authority's performance or failure to perform its obligations under this Agreement and (ii) any claim, damage, loss or expense attributable to bodily injury, sickness, disease or death, or to injury to or destruction of personal property including the loss of use resulting there from and caused in whole or in part by any negligent act or omission of the Commissioning Authority, anyone directly or indirectly employed by the Commissioning Authority or anyone for whose acts the Commissioning Authority may be liable. Such obligation shall not be construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this Article. 9.2 Except as otherwise set forth in this Agreement, the Commissioning Authority and the Owner shall not be liable to each other for any delays in the performance of their respective obligations and responsibilities under this Agreement which arise from causes beyond their control and without their fault or negligence, including but not limited to, any of the following events or occurrences: fire, flood, earthquake, epidemic, atmospheric condition of unusual severity, war, state or local government acting in its sovereign capacity, and strikes. Owner shall not be liable to the Commissioning Authority for acts or failures to act by Construction Program Manager, the Contractor or the Owner's consultants. ARTICLE 10 TERMINATION OF AGREEMENT 10.1 If (1), the Owner abandons the Project or the Project is stopped for more than six (6) months due to actions taken by the Owner, or under an order of any court or other public authority having jurisdiction, or as a result of an act of government, such as a declaration of a national emergency making materials unavailable through no act or fault of the Commissioning Authority or its agents or employees, or (2), the Owner has failed to substantially perform in accordance with the provisions of this Agreement due to no fault of the Commissioning Authority and such non - performance continues without cure for a period of thirty (30) days after the Owner receives from the Commissioning Authority a written notice of such nonperformance (including a detailed explanation of the actions of the Owner required for cure), the Commissioning Authority may, upon fifteen (15) day's additional written notice to the Owner, terminate this Agreement, without prejudice to any right or remedy otherwise available to the Commissioning Authority, and recover from the Owner payment for all services performed to the date of the notice terminating this Agreement. 10.2 Upon the appointment of a receiver for the Commissioning Authority, or if the Commissioning Authority makes a general assignment for the benefit of creditors, the Owner may terminate this Agreement, without prejudice to any right or 13 remedy otherwise available to the Owner, upon giving three (3) working days written notice to the Commissioning Authority. If an order for relief is entered under the bankruptcy code with respect to the Commissioning Authority, the Owner may terminate this Agreement by giving three working days written notice to the Commissioning Authority unless the Commissioning Authority or the trustee: (1), promptly cures all breaches; (2), provides adequate assurances of future performance; (3), compensates the Owner for actual pecuniary loss resulting from such breaches; and (4), assumes the obligations of the Commissioning Authority within the statutory time limits 10.3 If the Commissioning Authority persistently or repeatedly refuses or fails, except in cases for which extension of time is provided, to supply sufficient properly skilled staff or proper materials, or persistently disregards laws, ordinances, rules, regulations or orders of any public authority jurisdiction, or otherwise substantially violates or breaches any term or provision of this Agreement, then the Owner may, without prejudice to any right or remedy otherwise available to the Owner, and after giving the Commissioning Authority written notice, terminate this Agreement. 10.4 Upon termination of this Agreement by the Owner under paragraph 10.2 or 10.3 it shall be entitled to furnish or have furnished the Services to be performed hereunder by the Commissioning Authority by whatever method the Owner may deem expedient. Also, in such cases, the Commissioning Authority shall not be entitled to receive any further payment until completion of the Work; and the total compensation to the Commissioning Authority under this Agreement shall be the amount which is equitable under the circumstances. If the Owner and the Commissioning Authority are unable to agree on the amount to be paid under the foregoing sentence, the Owner shall fix an amount, if any, which it deems appropriate in consideration of all of the circumstances surrounding such termination, and shall make payment accordingly. 10.5 The Owner may, upon thirty day's written notice to the Commissioning Authority terminate this Agreement, in whole or in part, at any time for the convenience of the Owner, without prejudice to any right or remedy otherwise available to the Owner. Upon receipt of such notice, the Commissioning Authority shall immediately discontinue all services affected unless such notice directs otherwise. In the event of a termination for convenience of the Owner, the Commissioning Authority's sole and exclusive right and remedy is to be paid for all work performed and to receive equitable adjustment for all work performed through the date of termination. The Commissioning Authority shall not be entitled to be paid any amount as profit for unperformed services or consideration for the termination of convenience by the Owner. 10.6 Should the Owner terminate the Commissioning Authority as provided for under this Article, the Owner will acquire such drawings, including the ownership and use of all drawings, specifications, documents and materials relating to the Project 14 prepared by or in the possession of the Commissioning Authority. The Commissioning Authority will turn over to the Owner in a timely manner and in good unaltered condition all original drawings, specifications, documents and materials. 10.7 The payment of any sums by the Owner under this Article 10 shall not constitute a waiver of any claims for damages by the Owner for any breach of the Agreement by the Commissioning Authority. ARTICLE 11 DISPUTE RESOLUTION If a dispute arises out of or related to this Agreement, or its alleged breach, and if that dispute has not been settled through direct discussions within a reasonable period, the parties to this Agreement agree to first endeavor to settle the dispute in an amicable manner by submitting the dispute to a mutually acceptable mediator under the Construction Industry Mediation Rules, before having recourse to a judicial forum. Each party further agrees that it will endeavor to follow a similar dispute resolution procedure to resolve any disputes against any third parties (including the Contractor and Construction Program Manager) which arise out of or relate to work. 11.2 Should mediation of disputes prove unsuccessful, the parties to this Agreement agree that the matter(s) in question will be decided in the Superior Court of Richmond County, Georgia. By signing this Agreement, the Commissioning Authority waives any right to contest the venue in the Superior Court of Richmond County, Georgia. ARTICLE 12 SUCCESSORS /ASSIGNMENT 12.1 This Agreement shall inure to the benefit of and be binding on the heirs, successors, assigns, trustees and personal representatives of the Owner, as well as the permitted assigns and trustees of the Commissioning Authority. 12.2 The Commissioning Authority shall not assign, sublet or transfer its interest in this Agreement without the written consent of the Owner, except that the Commissioning Authority may assign accounts receivable to a commercial bank or financial institution for securing loans, without prior approval of the Owner. 15 ARTICLE 13 OWNERSHIP OF DOCUMENTS /CONFIDENTIAL INFORMATION 13.1 Plans and Specifications are instruments of service are and shall remain the property of the Commissioning Authority except as provided for under paragraph 10.6 whether the Project for which they are made is built or not. Said documents and Commissioning concept are not to be used by the Commissioning Authority on other projects. The Commissioning Authority agrees to transmit a digital copy of all plans, specifications and drawings to Owner prior to project closeout. Said electronic files and documents are not to be used by the Owner on projects at separate facilities, without a written agreement with the Commissioning Authority, except as provided for under paragraph 10.6. 13.2 In order for the Commissioning Authority to fulfill this Agreement effectively, it may be necessary or desirable for the Owner to disclose to the Commissioning Authority confidential and proprietary information and trade secrets pertaining to the Owner's past, present and future activities. The Commissioning Authority hereby agrees to treat any and all information gained by it as a result of the Services performed hereunder as strictly confidential. The Commissioning Authority further agrees that it will not disclose to anyone outside of the authorized Project team (i) Owner's trade secrets during the period of this Agreement or thereafter or (ii) Owner's confidential and proprietary information during the period of this Agreement and thereafter for a period of 2 years. ARTICLE 14 ADDITIONAL PROVISIONS 14.1 This Agreement and its Exhibits and Attachments represent the entire and integrated agreement between the Owner and the Commissioning Authority and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Commissioning Authority. 14.2 Unless otherwise specified, this Agreement shall be governed by the law of the State of Georgia, U.S.A. 14.3 If any one or more of the provisions contained in this Agreement, for any reason, are held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions thereof and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 14.4 Except where specifically stated otherwise, all periods of time stated in terms of days shall be considered periods calculated in calendar days. 16 14.5 The headings or captions within this Agreement shall be deemed set forth in the manner presented for the purposes of reference only and shall not control or otherwise affect the information set forth therein or interpretation thereof. 14.6 For the purpose of this Agreement unless the context clearly indicates otherwise, the singular includes the plural, and the plural includes the singular. 14.7 This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and the counterparts shall constitute one and the same instrument, which shall be sufficient evidence by any one thereof. This Agreement executed the day and year first written above. OWNER Augusta, Georgia A VA (Signature) (Seal) ( ignature 61til oyeke Copenhavor - Mayor (Name) (Street Address — No P.O. Box) Augusta, Georgia 30901 (City, State, Zip) COMMISSIONING CONSULTANT Total Systems Commissioning, In Richard C. Dutro (Name) 530 Greene Street 2020 Howell Mill Road, Suite C, Box 309 (Street Address — No- P.O. Box) Atlanta, GA 30318 (City, State, Zip) 17 u (Date of Signature) (Date o f ign re) Ale Al sys 0 5 -10 p EXHIBIT A PROJECT DOCUMENTS The Commissioning Authority shall receive a copy of the Design Development Phase Submittal and all subsequent Construction Document submittals. 18 EXHIBIT B MASTER SCHEDULE & CRITICAL DATE SCHEDULE Exhibit B consists of the following, attached documents: 1. Augusta, Georgia Sheriffs Office Building — Master Schedule, 2. Augusta, Georgia Sheriffs Office Building — Critical Date Schedule, EXHIBIT C SCOPE OF SERVICES 1. Basic Services: The Commissioning Consultant will be expected to work with the Architect to develop the final plan and specifications, including the requirements for Commissioning as described herein and as necessary to meet Fundamental Commissioning of the Building Energy Systems, as required for LEED -NC certification, version 3.0. No enhanced commissioning services will be required. Work by the selected Commissioning Consultant will, in general, include review of preliminary and final design documents, design of a Commissioning Plan, and development of commissioning specifications and contract administration of the commissioning procedures performed during equipment installation, start -up and personnel training, and any other services required to achieve the Fundamental Commissioning Services required by LEED v 3.0. Disciplinary review of plans and specifications shall include mechanical engineering, electrical engineering, plumbing engineering, fire protection, security systems and other life safety system engineering. Travel expenses (mileage, food & lodging) shall be included Basic Services. Specific tasks included are: 1. Review A/E Design Development Documents (plans and narrative) and submit written comments to Owner about proposed drawings, descriptive narratives and proposed systems and materials. 2. For design phase, attend 60% CD Review and subsequent CD reviews with the Owner and A/E (90% and 100 %). 3. Produce Preliminary Commissioning Plan and submit to Owner for review. 4. Review A/E's preliminary and final GMP Documents including developed architectural and engineering drawings, outline specifications and project schedule. Provide Owner with written comments. 5. Cooperate, coordinate and collaborate with A/E in resolving Design Intent issues. 6. Submit approved Preliminary Commissioning Plan and specifications to Owner for inclusion with GMP documents. 7. Assist Owner and Construction Manager at Risk firm with bidding including attendance at Pre -Bid Meetings, preparation of addenda ... etc. 8. Review A/E's final construction plans and specifications and provide written review comments to the Owner. 9. Produce Final Commissioning Plan and specifications and submit to Owner for final review. 10. Perform Construction Phase Commissioning Services including periodic site visits normally necessary to complete commissioning activities (logging, testing...etc) and attend at least four (4) Owner /Architect /CM coordination meetings to present commissioning status. 11. Field verification of installed equipment in static condition, including but not limited to air handlers, pumps, boilers, chillers, cooling towers, ductwork, dampers, controls, valves, actuators, piping, drain downs, power connections, water treatment systems, power systems, lightning protection systems, surge protection, switchgear, transformers, panel boards, grounding, fire alarms, smoke evacuation, life safety, telephone, data and security systems. The Commissioning Consultant shall include an initial punch list and two separate follow up rechecks and the associated travel expenses as part of their Basic Services. 12. Functional verification of equipment start -ups under controlled conditions. 13. Performance verification of interrelated systems running simultaneously including, but not limited to, all components listed under Item 11; in accordance with the approved Commissioning Plan 14. Cooperate, coordinate and collaborate with the Construction Manager at Risk and the A/E in resolving operational and installation conditions that do not meet the Design Intent. 15. Documentation of Design Intent, operational parameters and operations and maintenance (0 & M) staff training. 16. Review of 0 & M Manuals 17. Preparation of an 0 & M staffing and preventative maintenance plan. 18. Preparation of a Commissioning Final Report, including documentation of: • Design Intent • Basis of design • Completed pre- functional checklists • Completed functional checklists • Test and balance reports • System schematics • Control strategies and set points • Deficiency log Deliverables • Guidelines for energy accounting The Commissioning Consultant shall provide the following deliverables to the Owner's Representative as a minimum: 1. Written review comments (MS Word format) following review of the Architect's Design Development Documents (DD's). 2. Written review comments (MS Word format) following review of the Architect's 60% Construction Documents. (CD's). 3. Written review comments (MS Word format) following review of the Architect's 100% Construction Documents. (CD's). 4. Six (6) copies of Preliminary Commissioning Plan. 5. Two (2) paper copies and one (1) MS Word copy of Commissioning Specification, in format compatible with Architect's Project Manual (Specifications). 6. Ten (10) copies of Final Commissioning Plan. 7. Punch list(s). 8. Three (3) copies of Inspection and Functional Performance Test Forms. 9. Four (4) copies of Final Commissioning Report THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADM INSR SUBR WVD POLICY NUMBER POLICY EFF (MM/ODIYYYY) POLICY EXP (MM /DD/YYYY) LIMITS A GENERAL X LIABILITY COMMERCIAL GENERAL LIABILITY INSURED Total Systems Commissioning Inc. 2020 Howell Mill Road Suite C, Box 309 Atlanta GA 30318 INSURER B: Harleysville Mutual Ins Co BOP61368L 10/10/2011 /2012 EACH OCCURRENCE $ 1,000,000 AMAGE TO PREMSES(Ea $ 100,000 INSURER F : CLAIMS -MADE X OCCUR MED EXP (Any one person) $ 10,000 PERSONAL&ADVINJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE 7 POLICY LIMIT APPLIES JET PER: LOC PRODUCTS - COMP/OP AGG $ 2,000 $ A AUTOMOBILE X LIABILITY ANY AUTO ALL OWNED AUTOS HIRED AUTOS SCHEDULED AUTOS NON -OWNED AUTOS BA75681L 9/26/2011 9/26/2012 COMBINED SINGLE LIMIT (Ea accident) _s 1,000,000 $ BODILY INJURY (Per person) BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ $ g X UMBRELLALIAB EXCESS LIAB X OCCUR CLAIMS -MADE CMB61369L 10/10/2011 10/10/2012 EACH OCCURRENCE $ 1,000,000 AGGREGATE $ 1,000,000 DED RETENT ON $ $ C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y/N ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? I Y I (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below N/ A WC61370L 10/10/201110/10 /2012 WC STATU I OTH- X TORY LIMITS I ER E.L. EACH ACCIDENT $ 100,000 E.L. DISEASE - EA EMPLOYEE $ 100,000 E.L. DISEASE - POLICY LIMIT $ 500,000 D Professional Liability EO 000007692 - 05 10/10/201110/10 /2012 Each Claim & $ 1,000,000 Aggregate $ DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, it more space Is required) RE: RFP Item #12 -126 Commissioning Services for Webster Detention Center Phase II for Augusta, Georgia - Recreation, Parks & Facilities Department. Augusta Richmond County Administrator SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 530 Greene Street AUTHORIZED REPRESENTATIVE Room 801 Augusta GA 30901 '(, Z, **�� ACOR° CERTIFICATE OF LIABILITY INSURANCE T DATE (MM/ODIYYYY) 5/15/2012 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Resurgens Risk Management, Inc. 1201 Peachtree Street NE 400 Colony Square, Suite 1730 Atlanta GA 30361 CONTACT NAME: Ramahne Y Jeffrey PHONE FAX (A/C No Ext): (404) 873 -1561 (A/c, NO): (404) 873 - 1574 E ADDRESS: RJeffreyWrrmgt.com INSURER(S) AFFORDING COVERAGE NAIC # INSURER A: Harleysville Prreferred Ina Co 35696 INSURED Total Systems Commissioning Inc. 2020 Howell Mill Road Suite C, Box 309 Atlanta GA 30318 INSURER B: Harleysville Mutual Ins Co 14168 INSURER C: Harleysville Worcester Ina Co 26182 INSURERD: Insurance Company 24856 INSURERE: INSURER F : COVERAGES CERTIFICATE HOLDER ACORD 25 (2010/05) CERTIFICATE NUMBER: Cert ID 1470 CANCELLATION The ACORD name and logo are registered marks of ACORD Page 1 of 1 REVISION NUMBER: © 1988-2010 ACORD CORPORATION. All rights reserved.