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HomeMy WebLinkAboutAGREEMENT BETWEEN THE GIDDINGS GROUP LLC AND AUGUSTA GASTATE OF GEORGIA RICHMOND COUNTY ) THIS AGREEMENT, made and entered into, this /7 day of January, 2013 between The Giddings Group; LLC (hereinafter referred to as "Seller "), and Augusta, Georgia, a political subdivision of the State of Georgia, (hereinafter referred to as "Buyer"); WITNESSETH: WHEREAS, SELLER has submitted plans the Augusta Planning Department for approval for the construction of a two hundred forty unit apartment complex consisting of one, two and three bedroom apartment homes to be located on property known as 675 Frontage Road, Augusta, Georgia (the "Complex "); and WHEREAS, the construction of the Complex is a part of an overall mixed -use master plan (the "Development ") to be located on a tract of land currently known as Map /Parcel 022 -0- 023-01-0 (the "Development Property "); and WHEREAS, Mason McKnight Jr Parkway is a dedicated public roadway that was constructed to provide vehicle access for the Development; and WHEREAS, it is anticipated that the Development will consist of one or more "big box" retailers which is anticipated to generate additional vehicular traffic; and WHEREAS, Scott Nixon Memorial Drive is a public road that intersects with Mason McKnight Jr Parkway via roundabout which serves at the primary ingress and egress for the Complex; and WHEREAS, Frontage Road is an incomplete public roadway that is currently "stubbed out" at the southeastern property line of the Development Property; and WHEREAS, studies show that roadway connectivity improves mobility through route - choice that results in reduce travel times, vehicle miles traveled, and reliance on arterial roadways; and WHEREAS, improved roadway connectivity will be achieve by extending Frontage Road northwest to Mason McKnight Jr Parkway (the "Extension "), which is a long term benefit to Augusta; and WHEREAS, it has been determined that the best approach would to be construct the Extension prior to or during the construction of the Complex; and WHEREAS, Augusta has determined that the construction of the Extension is a public benefit but is unable to design, acquire the necessary right -of -way, and construct the Extension within the timeframe necessary to meet the construction schedule of the private development of the Complex; and WHEREAS, Seller has agreed to construct the Extension in accordance with Augusta's road construction standards and then sell the roadway to Augusta; and WHEREAS, Seller has agreed to warrant the construction of the Extension for a period of eighteen (18) months after delivery of Extension in conformity with Augusta's standard warranty for acceptance of dedicated roadways; and WHEREAS, the purchase price of the Extension will be $809,283.71. NOW THEREFORE, the parties hereto agree as follows: 1. Seller has agreed to sell and Buyer to buy, on the terms and conditions hereinafter set forth, the real property (and improvements located thereon) described on Exhibit "A," hereto attached (the "Property"). 2. The purchase price of the Property is $809,283.71, and is payable as follows: CASH AT CLOSING 3. The Seller hereby acknowledges receipt of $0.00 as earnest money. The parties stipulate and agree that the covenants contained herein and the reliance on the stipulations noted above are sufficient consideration for this contract. 4. (a) Seller agrees to furnish a marketable title to said property and agrees to convey said property by general warranty deed to Buyer at the time the sale is consummated, subject to: 1. Covenants and restrictions of record not violated by existing improvements or the use of the property. use of the property. 2. Zoning ordinances not violated by the existing improvements or the 3. Encumbrances and leases specified in this contract. (b) Seller shall furnish Buyer a certificate of Title from Dunstan, Cleary & West, LLP, at least thirty (30) days prior to the date set for closing. Buyer shall furnish to Seller a written statement of objections affecting the marketability of said title at least fifteen (15) days prior to the date set for closing. If the Seller shall be unable to convey title in accordance with the provisions of this contract, as a result of the property being affected by any encumbrance (other than taxes for the current year which constitute a lien, but are not due and payable at the time of closing), outstanding interest or question of title not expressly consented to herein by the Buyer which render the Seller's title to the premises unmarketable, and which may according to reasonable expectations, be removed within thirty (30) days, the Seller shall have the privilege to remove or satisfy the same and shall for this purpose, be entitled to an adjournment of the closing of title for a period not exceeding fifteen (15) days. The Seller shall not be required to bring any action or proceeding or otherwise incur any expense to render the title to the premises marketable. The Buyer may, nevertheless accept such title as Seller may be able to convey without reduction of the purchase price or any credit against same and without liability on the part of the Seller. 5. The purchase and sale of the subject property shall be closed on or before fifteen (15) days of the roadway being eligible for acceptance into the Augusta, Georgia road system. Possession of the property shall be delivered to the Buyer at the time of closing. 6. Time is of the essence of this contract, and Seller and Buyer agree that such papers as may be legally necessary to carry out the terms of this contract shall be executed and delivered by such parties at the time this sale is consummated. 7. Seller warrants that when the sale is consummated the road improvements to be constructed on the Property shall have been completed and shall be in conformity with the plans, specifications and quality standards approved by Buyer. Prior to the commencement of construction of said road improvements, Seller shall submit the engineering plans and specifications for the road construction to the Buyer for approval of same, which approval shall not be unreasonably withheld or delayed. Seller specifically assumes the risk of loss or damage to said property until the consummation of the sale. Should the premises be destroyed or substantially damaged before this contract is consummated, then, at the election of the Buyer: (a) The contract may be canceled; (b) Buyer may consummate the contract and receive such insurance as is paid on the claim of loss; if there is no insurance the reasonable cost of repairing said improvements shall be subtracted from the purchase price provided for in paragraph 2 hereof The election is to be exercised by Buyer within ten (10) days after the amount of the Seller's damage is determined. 8. Seller is to pay all liens, encumbrances, water charges and the like on said property, for all transfer tax on Seller's deed. Buyer shall be responsible for all recording costs on Seller's deed and taxes, shall be prorated between the parties as of the date of closing. 9. Seller agrees that if this transaction is not consummated because of Seller's inability, failure or refusal to convey marketable title, Buyer may terminate this Agreement. Buyer agrees that if it fails or refuses to consummate this transaction for any reason, except lack of marketable title in the Seller, the Seller shall have the option of suing for specific performance or of terminating this contract. 10. The special stipulations appearing on Exhibit B hereof, shall, if in conflict with the printed matter contained herein, control. 11. This contract constitutes the sole and entire agreement between the parties and no modification of this contract shall be binding unless attached hereto and signed by all parties to this agreement. Representations, promises or inducements not included in this contract shall not be binding upon any party hereto. 12. All rights, powers, privileges and duties hereby granted or assumed shall inure to the benefit of and shall be binding upon the successors, assigns, heirs, administrators and executors of the parties hereto. IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals, this 1� day&January, 2013. Augusta, Georgia By: =- (L.S.) Its: Mayor The Giddings Group, LLC By • (L.S.) Its: Member /Manager Exhibit "A" All that lot, tract or parcel of land, with improvements thereon, situate, lying and being in the State of Georgia, County of Richmond, containing acres, more or less, and being shown as Tract on a plat prepared dated, reference being made to said plat for a more complete and accurate description of the metes, bounds, courses, distances and location of said property. "Exhibit "A" to be redefined upon completion of road and receipt of "as -built survey Site Plan of proposed road attached hereto as Exhibit "C ". Exhibit "B" SPECIAL STIPULATIONS 1. Roadway must be constructed in conformity with Augusta's standards for road construction. Prior to the commencement of construction of said road improvements, Seller shall submit the engineering plans and specifications for the road construction to the Buyer for approval of same, which approval shall not be unreasonably withheld or delayed. 2. If the roadway is not constructed and possession delivered to Augusta within eighteen (18) months of the date of this Agreement, Augusta, in its sole discretion may terminate this agreement. 3. At Buyer's election by written notice to Seller within five (5) business days of the date of last execution of this Agreement, Seller shall obtain a payment bond in favor of Augusta for the construction of the roadway and Seller shall require a payment bond of its contractor. In the event that Buyer elects to require a payment bond, the Purchase Price payable hereunder shall be increased by an amount equal to the cost of said payment bond. 4. Seller to enter into an eighteen month warranty warranting the construction of the roadway consistent with the warranty utilized by Augusta for road dedications. 5. Seller shall pay transfer tax, if any is due. Each party shall pay their respective attorney fees. 6. Attached hereto as Exhibit "D" is the proposed Contract between the Seller and Barnett Southern Corporation, providing for construction of the roadway at a total fixed cost to Seller of $809,283.79. Upon closing, Seller shall furnish Buyer evidence of payment by Seller of the total fixed cost to Barnett Southern Corporation, and appropriate final waiver of lien executed by Barnett Southern Corporation. EXHIBIT "C" Site Plan v(11 SUBCONTRACT REVISE AND EXTEND NW FRONTAGE ROAD This Subcontract is by and between The Giddings Group, LLC ( "Contractor"), with offices at P.O. Box 3907, Augusta, GA 30914, Phone (706) 832 -2083; Fax and Barnett Southern Corporation, P.O. Box 704, Washington, GA 30673; Phone 706- 678 -1507; Fax 706 - 678 -1697, Contact Person: Ames Barnett, this November28TH, 2012. CONTRACTOR AND SUBCONTRACTOR PROMISE AND AGREE AS FOLLOWS: Subcontractor shall procure and furnish all materials, labor, supervision, equipment, facilities, supplies, licenses and permits necessary to perform all work set forth below in the construction of REVISE AND EXTEND NW FRONTAGE RD., AUGUSTA, GA ( "Project ") and owned by The Giddings Group, LLC, P.O. Box 3907, Augusta, GA 30914 ( "Owner "), in The Giddings Group, LLCordance with this subcontract and the contract between the owner and Contractor dated November 27, 2012, including all drawings ( 1-23 dated October 15, 2012), forms, conditions, specifications dated November 27, 2012, and other documents forming or made part of said contract ( "Contract "), all of which Subcontractor acknowledges it has reviewed to its satisfaction. The Contract is hereby incorporated by reference and made a part hereof, and Subcontractor is bound to Contractor by the same terms and conditions by which Contractor is bound to the Owner under the Contract. Contractor makes no representation or warranty, express or implied, regarding the adequacy of the Contract. Subcontractor shall perform all duties and obligations of the Contractor under the Contract to the extent that such duties and obligations are related, directly, to Subcontractor's work. Subcontractor will not do, or fail to do, any act, if such act or failure to act would constitute a breach of the Contract. This Subcontract is made conditional upon its approval and approval of Subcontractor, by the Owner, if such approval is required under the Contract. A -1 SCOPE OF WORK: Subcontractor shall perform and pay for the following work and all incidental work necessary to complete it ( "Work "): All work to be completed per plans, specs, addendums and general conditions;as per drawings 1 -23 dated 10 -15 -12 by Cranston; McKnight- Realign Frontage Road prepared for The Giddings Group, LLC. 1. Roadway must be constructed in conformity with Augusta's standards for road construction. Prior to the commencement of construction of said road improvements, Seller shall submit the engineering plans and specifications for the road construction to the Buyer fro approval of same, which approval shall not be unreasonably withheld or delayed. 2. If the roadway is not constructed and possession delivered to Augusta within eighteen (18) months of the date of this agreement, Augusta, in its sole discretion may terminate this agreement. 3. At Buyer's election by written notice to Seller within five (5) business days of the date of last execution of this Agreement, Seller shall obtain a performance bond in favor of Augusta for the construction fo the roadway and Seller shall require a payment bond of its contractor. In the event that Buyer elects to require a payment bond, the Purchase Price payable hereunder shall be increased by an amount equal to the cost of said payment bond. 4. Seller to enter into an eighteen month warranty warranting the construction of the roadway consistent with the warranty utilized by Augusta for road dedications. As per Barnett Southern's quote For the Sum of $809,283.71 (EIGHT HUNDRED NINE THOUSAND TWO HUNDRED EIGHTY -THREE AND 71/100 DOLLARS). There will be one payment after final inspection by the Cranston Engineering Group P.0 and Augusta Richmond County. All applicable taxes, fees, and other costs and expenses of any nature whatsoever are included in the price(s). Any portion of the Work performed prior to the execution of this Subcontract shall be governed by and subject to the terms and conditions of this Subcontract. A -2 INVESTIGATION OF PROJECT: Subcontractor has fully acquainted itself with and shall be solely responsible for all physical and nonphysical conditions affecting the work, the Project site and surrounding Page -1- conditions, as well as all laws, ordinances, regulations, and governmental requirements applicable to the Work and the availability of all materials, supplies and utilities necessary to perform the Work. Subcontractor assumes all risk and expense of any variances between actual conditions and any conditions represented in the Contract or this Subcontract, including but not limited to subsurface conditions, prior work performed by other parties, and the proper removal and disposal of waste and contaminants encountered on the Project. Subcontractor represents that it is familiar and shall comply with all applicable federal, state and local laws and ordinances concerning disposal of waste and rubbish. Upon recognizing the same, Subcontractor shall immediately stop work and notify Contractor by phone and in writing of any hazardous material or unsafe condition encountered in the Project Site, or the release by Subcontractor of any contaminant or substance, the reporting of which is required under any law or regulation. Subcontractor shall prevent the construction site from being contaminated with any substance in quantities or under circumstances prohibited by environmental protection laws ofthe United States ofthe State of Georgia. Subcontractor shall be responsible to the Contractor and Owner if, at any time, state or federal authorities make a claim or demand against the Contractor or Owner on The Giddings Group, LLCount of contamination of the site caused or allowed by Subcontractor or any of its forces or subcontractors. The Subcontractor is responsible for having thorough knowledge of all drawings, specifications, general, supplementary and special conditions and other Contract Documents. Failure to obtain the knowledge does not relieve it of the responsibility for performing its work in a manner The Giddings Group, LLCeptable to the Contractor. No additional compensation will be allowed because of conditions that occurred due to the failure of the Subcontractor to familiarize itself and its workers with this knowledge. The Subcontractor shall be responsible for the The Giddings Group, LLCuracy of measurements, elevations, lines and grades of work. Subcontractor shall do field work necessary to layout and maintain the work. The Subcontractor shall provide adequate supervision at all times he has personnel on site. This supervision must be fluent in the English language and have the ability to interpret the drawings and coordinate his work with other trades. A -3 EXECUTION AND PROGRESS OF WORK: Time is of the essence of this Subcontract. Subcontractor shall commence the Work when directed by Contractor, and shall prosecute the Work at whatever rate of progress and in whatever sequence as the Contractor may direct. Subcontractor shall make all necessary arrangements and coordinate its Work with the Contractor, other subcontractors and the Owner's forces so as not to delay or impair the progress of the Work or the Work of others on the Project. Subcontractor shall utilize and maintain whatever lights, barriers, supports, barricades, warning and other safety devices necessary to protect the Work and prevent personal injury or property damage. Subcontractor shall keep the Work area clean, neat and orderly, to the satisfaction of the Contractor. Subcontractor's representative on the Project shall at all times have the authority to act in all respects on behalf of Subcontractor. Contractor shall have the sole authority to determine the The Giddings Group, LLCeptability or unThe Giddings Group, LLCeptability of the Work, to reject unThe Giddings Group, LLCeptable Work, and any decision by Contractor as to any aspect of the Work shall be final. Subcontractor shall not allow any labor dispute, or any claim or dispute in connection with this Subcontract, to in any way delay, interfere with, impair, disrupt, or hinder the Work. The Subcontractor shall furnish to the Contractor periodic progress reports on the Work of this Subcontract as mutually agreed, including information on the status of materials and equipment which may be in the course of preparation, manufacture or transit. Contractor may at any time request Subcontractor to provide adequate assurances that it possesses the capability to complete performance of this Subcontract and the failure of Subcontractor to supply such assurances to Contractor's satisfaction shall constitute a material breach of this Subcontract. Page -2- Subcontractor shall furnish to the Contractor at Date of Substantial Completion, as defined in the Contract, one complete set of blueline drawings indicating "as- built" conditions of subcontractor's work that vary from the Contract Documents. It shall be the responsibility of the Subcontractor to maintain records of "as- built" conditions as the Work progresses. All underground or otherwise concealed utilities shall be The Giddings Group, LLCurately located on the drawings. Failure to maintain "as- built" drawings on a monthly basis can result in payment being withheld. A -4 PAYMENT: Subcontractor shall submit invoices by the 20 of each month. Subcontractor shall submit . with any such invoice whatever affidavits, releases, waivers, and other documents relating to the Work covered by such invoice that Contractor may request. Contractor shall pay Subcontractor on or about ten (10) days following receipt of corresponding payment from Owner. Such payment shall be limited to the amount of payment that Contractor receives from Owner for the Work, and Contractor may withhold from each payment, other than final payment, retainage of either (i)10 %, or (ii) the amount pertaining to the Work withheld by Owner from Contractor. Contractor shall have no obligation to make any payment to Subcontractor unless Subcontractor, in Contractor's opinion, is in full compliance with all requirements of this Subcontract. Subcontractor shall bear the risk of nonpayment by the Owner, and payment to Subcontractor shall be wholly contingent and conditioned upon Contractor's receipt ofpayment from Owner, and in no event shall Contractor be responsible to make any payment to Subcontractor unless and until payment is actually received by Contractor from Owner. Subcontractor shall promptly pay for all labor and materials supplied in the prosecution of the Work. Contractor is entitled and authorized to (i) withhold from any amount otherwise owed Subcontractor the amount of any claim for payment of labor or materials allegedly furnished in the prosecution of the Work, (ii) make payment to Subcontractor and any such claimant by joint check, (iii) pay any such claimant directly from funds otherwise owed Subcontractor, and (iv) withhold from any amount otherwise owed Subcontractor an amount sufficient, in Contractor's opinion, to compensate for any breach by Subcontractor of any provision of this Subcontract. No payment shall operate as an The Giddings Group, LLCeptance of the Work performed or materials furnished. Provided written notice of such alleged breach is provided to subcontractor within seven days of breach. Subcontractor shall provide schedule of values for approval by architect/owner. No payment will be made without approved schedule of values. Subject to the terms and conditions contained in the preceding paragraph and the other provisions of this Subcontract, final payment, constituting the entire unpaid balance of the Subcontract Sum shall be made by the Contractor to the Subcontractor when the Subcontractor's work is fully performed in The Giddings Group, LLCordance with the requirements of the Contract Documents, the Architect has issued a certificate for payment covering the Subcontractor's completed work and the Contractor has received payment from the Owner. Where Contract Documents require that work be inspected, tested or approved and when Subcontractor determines that work is Substantially Complete, he shall give timely notice, including written notice where required. However, should work requiring testing, inspection or approval not be in readiness, Subcontractor shall pay salaries, professional fees, travel and living expenses, as applicable, for persons inconvenienced by false notice. Before issuance of the final payment, the Subcontractor, if requested by Contractor, shall submit evidence and lien waivers satisfactory to the Contractor that all payrolls, bills for materials and equipment, and all known indebtedness connected with the Subcontractor's Work have been satisfied. If the Owner elects to occupy or use any completed or partially completed portion of the work, the Subcontractor agrees to cooperate in the segregation and coordination of its construction activities. Such Page -3- occupancy shall not relieve the Subcontractor of liabilities to perform work required by the Contract that has not been completed at the time of occupancy. A -5 INSURANCE: Subcontractor shall, and shall cause each of its subcontractors, to maintain (i) worker's compensation and employer's liability insurance to fully protect against loss from personal injury, including death, to any of their employees, (ii) comprehensive automobile liability, general liability (including blasting, collapse and underground, product liability and completed operations coverages,) contractual liability, owners and contractor's liability, builders risk, and property damage insurance, (iii) and any and all other insurance required by the Contract. All such insurance shall be written by insurers having an A.M. Best Rating of A- VIII or higher. All coverage shall be written on an "occurrence" basis and not on a "claims made" basis. All policies, except for worker's compensation policies, shall name the Contractor as an additional insured with primary coverage (with any other third -party coverage provided for Contractor to be deemed as excess only) and shall indemnify, defend and protect Contractor from all claims, expenses and liabilities in any way connected with any act or omission of Subcontractor, its invitees, or any person performing Work directly or indirectly on behalf of Subcontractor, regardless of whether Contractor is wholly or partially at fault. All insurance shall expressly provide that all rights of subrogation against the Contractor and the Owner are waived, that no amendment or cancellation of any policy shall be effective until 30 days written notice to Contractor and that Owner is an additional insurance to the extent that Contractor is required to provide insurance coverage the Owner under the Contract. Before starting the Work, and at any time Contractor so requests, Subcontractor shall furnish certificates satisfactory to Contractor evidencing the required insurance. Neither performance of work by Subcontractor nor any payment by Contractor prior to Contractor's receipt of such certificates shall not diminish Subcontractor's duty to maintain the required insurance or to supply such certificates. The Giddings Group, LLC shall be listed as additional insured on all insurance certificates. The minimum The Giddings Group, LLCeptable limits shall be: Commercial General Liability Insurance: S2,000,000 General Aggregate $2,000,000 Products /Completed Work Limit 51,000,000 Personal/Advertising Injury S1,000,000 Each Occurrence Commercial Automobile Liability Insurance: S1,000,000 Combined Single Limit f Liability Statutory Workers Compensation and Employer's Liability Insurance: $500,000 Each The Giddings Group, LLCident $500,000 Disease Policy Limit $500,000 Each Employee Umbrella Liability: 51,000,000 Each Occurrence/Aggregate A -6 INDEMNITY: Subcontractor and Subcontractor's owner, individually, shall each defend, indemnify and hold Contractor, it officers, employees, agents, insurers, sureties, and parent and affiliated corporations, harmless from any and all losses, consequential damages, expenses (including but not limited to attorneys', consultants' and experts' fees), claims, suits, liabilities, fines, penalties and remedial or clean -up costs arising out of or in any way related to (i) the performance of the Work, (ii) any breach of this Subcontract, or (iii) any act or omission by Subcontractor, its invitees, or any person performing Work directly or indirectly on behalf of Subcontractor. Subcontractor's and Subcontractor's owner's indemnity and defense obligations shall apply to any claim against Contractor by any supplier or employee of Subcontractor or Subcontractor's owner's; and Subcontractor or Subcontractor's owner Page -4- shall not assert as a defense in any suit by Contractor to enforce Subcontractor's or Subcontractor's owner's obligations under this Article 6 any immunity or other defense provided under any worker's compensation or other laws. Subcontractor's and Subcontractor's owner's obligations under this Article 6 shall not be limited by any other provision of this Subcontract or by any law. Any damages recoverable by Contractor from Subcontractor or Subcontractor's owner shall bear interest at the annual rate of 18% or the highest rate allowed by law, if lower. *Provided such losses, costs or damages are not the result of negligent or intentional acts of Contractor or any other party under the direction of Contractor wherein such liability shall be apportioned The Giddings Group, LLCording to the parties' respective fault. A -7 DELAY: No extension of time shall be allowed unless Subcontractor submits a written request to Contractor within 48 hours of the commencement of the asserted basis for such request and then only if and to the extent approved by Contractor and Owner in writing, regardless of the asserted basis for such request, and regardless of whether Owner or. Contractor is at fault. No damages, additional compensation, or other remedy, shall be granted to Subcontractor for any delay, interference, impairment, disruption, or hindrance that Subcontractor may encounter in performing the Work, regardless of the cause. A -8 DISADVANTAGED BUSINESS ENTERPRISE: If Subcontractor is to perform as a Disadvantaged, Small, Minority or Female -Owned Business Enterprise (DBE), Subcontractor (i) agrees that all Work required by this Subcontract will be performed, managed and supervised by Subcontractor's own forces, except for Work sub - subcontracted to others with Contractor's prior written consent, and (ii) shall do all things necessary to comply with all applicable federal, state or municipal laws, rules, regulations or ordinances governing the Subcontractor's performance and continuing certification as a DBE so that its performance will count toward Contractor's DBE requirements in the Contract. A -9 WARRANTY: Subcontractor shall provide all warranties with regard to the Work as required in the Contract; however, in no event shall such warranties extend for less than one year from the final The Giddings Group, LLCeptance date of the Project. Subcontractor shall replace or repair to Owner's and Contractor's satisfaction any material or workmanship in the Work deemed defective by Owner or Contractor. The Subcontractor further specifically warrants to the Owner, Architect and Contractor that materials and equipment furnished under this Subcontract will be of good quality and new unless otherwise required or permitted by the Subcontract Documents, t hat the Work of this Subcontract will be free from defects not inherent in the quality required or permitted, and that the Work will conform to the requirements of the Subcontract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. Subcontractor will repair or replace all defects due to workmanship or materials that appear within one year of the date of final payment to the Subcontractor. The Subcontractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Subcontractor, improper or insufficient maintenance, improper operation, or normal wear and tear under normal usage. This warranty shall be in addition to and not in limitation of any other warranty or remedy existing at law or by the Subcontract Documents. A-1 0 COMPLIANCE WITH LAW: Subcontractor, at its own expense, shall comply with all applicable local, state and federal laws, rules, regulations and ordinances, as amended, including but not limited to those governing: wage and hour, employment, drug -free workplace, .safety, hazard communication, material safety data, health, and matters affecting the environment. Subcontractor shall not discriminate against any employee or applicant on the basis of race, color, religion, sex, national origin, age, disability, or veteran status; and Subcontractor shall comply with the Civil Rights Act of 1964, Executive Order 11246, 41 CFR Part 60 and all other statutes and laws prohibiting any such discrimination. Subcontractor shall cause such legal Page -5- and regulatory requirements, to the extent required under any law, regulation or the contract, to be included in any lower -tier subcontract or purchase order, including without limitation Required Contract Provisions Under Federal Aid Construction Contracts. Subcontractor shall comply with all federal and state antitrust laws, and further represents and warrants that no employee, officer, director or agent of Subcontractor has directly or indirectly entered into any agreement, participated in any collusion, or otherwise taken any action in restraint of free competitive bidding in connection with the Work. The Subcontractor shall be responsible for filing Addenda and modifications to the Contract Documents with public authorities having jurisdiction over the Subcontractor's Work. Such documents including periodic drawing revisions, shall be as required by such authorities. A -11 SUSPENSION OR TERMINATION: This Subcontract will terminate, or the Work will be suspended, to the extent that: (i) the contract terminates or the Owner suspends the Work, in whole or in part, or (ii) Contractor gives written notice to Subcontractor that this Subcontract is terminated or the Work is suspended, in whole or in part. In any of such events, Subcontractor shall immediately suspend or terminate work as appropriate. In the case of such termination for any reason other than Subcontractor's default, the Subcontractor shall be entitled to receive payment for work executed and purchased materials that cannot be returned for credit, and any other direct costs incurred in performance of the work and by reason of such termination, but there shall be no allowance for overhead and profit on work not yet executed, and there shall be no compensation for any other consequential, indirect or special damages. A -12 DEFAULT: If, in the opinion of Contractor, Subcontractor (i) breaches any terms of this Subcontract, (ii) fails to provide sufficient skilled labor or materials of proper quality; (iii) fails to repair defective Work, (iv) fails to prosecute the Work promptly and diligently to promote the progress of the Project, (v) becomes insolvent or experiences financial difficulty so that proper performance of the Work is jeopardized, or (vi) becomes disabled from complying with any term of this Subcontract by a petition in Bankruptcy or by appointment of a receiver (each of which is an "event of default "), then Contractor may, at its sole option: (a) declare Subcontractor in default and terminate this Subcontract, effective 12 hours after written notice to Subcontractor; (b) provide any or all of the Iabor, equipment and materials necessary to complete the work, and deduct the cost thereof from any money due Subcontractor, and/or (c) take possession of any materials and equipment of Subcontractor necessary to complete the Work. Subcontractor shall be liable for any damages or losses incurred by Contractor resulting from an event of default, and Contractor shall have a security interest in and lien upon all materials and equipment of Subcontractor to secure such obligation.• If Subcontractor owes Contractor money or has any liability to Contractor for any reason, whether or not arising under this Subcontract, Contractor may offset such obligation or debt against any monies which Contractor, or any of its corporate affiliates, owes Subcontractor under this or any other contract, subcontract, purchase order or agreement. A -13 CHANGES IN WORK/CLAIMS AND DISPUTES: The Owner may make changes in the Work by issuing Modifications to the Contract. Upon receipt of such •a Modification issued subsequent to the execution of the Subcontract Agreement, the Contractor shall promptly notify the Subcontractor of the Modification. Unless otherwise directed by the Contractor, the Subcontractor shall not thereafter order materials or perform Work which would be inconsistent with the changes made by the Modifications to the Prime Contract. Page -6- The Subcontractor may be ordered in writing by the Contractor, without invalidating this Subcontract, to make changes in the Work within the general scope of this Subcontract consisting of additions, deletions or other revisions, including those required by Modification to the Contract issued subsequent to the execution of this Agreement, the Subcontract sum and the Subcontract Time being adjusted The Giddings Group, LLCordingly. The Subcontractor, prior to the commencement of such changed or revised Work, shall submit promptly to the Contractor written copies of a claim for adjustment to the Subcontract Sum and Subcontract Time for such revised Work in a manner consistent with requirements of the Subcontract Documents. This requirement forprior written claims for adiustments for changes in the work may not be waived except in writing. The Subcontractor shall make all claims promptly to the Contractor for additional costs and extensions of time or other causes in The Giddings Group, LLCordance with the Subcontract Documents, but no later than 5 business days from the date Subcontractor knew or should have known that such claim would be required. A claim which will affect or become part of a claim which the Contractor is required to make under the Prime Contract within a specified time period or in a specified manner shall be made in sufficient time to permit the Contractor to satisfy the requirements of the Prime Contract. Such claims shall be received by the Contractor not less than two working days preceding the time by which the Contractor's claim must be made. Failure of the Subcontractor to make such a timely claim shall bind the Subcontractor to the same consequences as those to which the Contractor is bound. Subcontractor agrees, upon the request in writing of the Contractor, to change any sequence of work, provided such change does not cause delay in the Subcontractor's completion of work or increase in its cost. If such a change does cause a delay or increases the Subcontractor's cost, a change order will be issued extending the time of completion and/or making changes in costs. However, Subcontractor must advise Contractor in writing within five business days of any change ordered by Contractor which Subcontractor contends warrants an extension of time or change in payment. This requirement of written notice may not be waived except in writing. Except as otherwise specifically allowed under the subsection, any changes in the Work or change in the sequence or timing of the Work that causes delay to Subcontractor, or in the event of any other cause of delay, inefficiency or disruption in the Work of Subcontractor, the sole remedy therefor shall be an extension of time for Subcontractor's performance, and Subcontractor shall not be entitled to damages for any delay, disruption or inefficiency. Any such claim by Subcontractor for an extension of time must be made in writing within five business days oft he onset of the event or condition that causes a delay or disruption. Subcontractor shall not be entitled to consequential, general or punitive damages against Contractor for any reason arising out of or connected to this Subcontract. If permitted by law and the Contract, Subcontractor may, at its sole expense, pursue its claim against the Owner in the name of Contractor; but prior thereto, Subcontractor shall enter into a separate written agreement satisfactory to Contractor to indemnify Contractor from any associated costs, expenses or other losses. Subcontractor shall have no claim against Contractor for which Owner is not liable or otherwise has not made payment to Contractor; and in no event, shall Contractor have any liability to Subcontractor in excess of any actual recovery from Owner for claims relating to the Work. If any claim or dispute arises relating to this Subcontract, Subcontractor shall immediately make all of its books and records available to Contractor for review and audit. The failure of Subcontractor to initiate legal action relating to any claim arising under this Subcontract within one (1) year shall constitute a full and complete waiver of such claim, regardless of any applicable statute of limitation. Page -7- Any claim arising out of or related to this Subcontract, except those waived in this Subcontract, shall be subject to arbitration as the exclusive remedy. However, any claim arising out of or related to this Subcontract, shall be subject to mandatory mediation as a condition precedent to arbitration proceedings by either party. Claims not resolved by mediation shall be decided by arbitration and shall be pursuant to a separate arbitration agreement attached to this Subcontract. A -14 PAYMENT AND PERFORMANCE BONDS: If required by the Contractor, Subcontractor shall provide a separate payment and performance bond, each in the penal amount of this Subcontract, on forms and with sureties satisfactory to Contractor. Subcontractor is required to provide letter of personal endorsement if not providing bond. A -1 5 SUB- SUBCONTRACTS: Subcontractor shall not assign or sublet any portion of this Subcontract or its proceeds without the advance written consent of contractor. Subcontractor shall incorporate by reference this Subcontract into any sub - subcontract or other agreement covering any portion of the Work. Subcontractor shall, before commencing the Work and at any time requested by Contractor, furnish Contractor a written list of the names of all subcontractors, suppliers and any other entities that may furnish labor or materials in the prosecution of the Work. In any sub - subcontract or contract to procure materials or equipment, Subcontractor shall include a provision allowing for termination of Subcontractor's convenience without liability to Contractor or Owner, which Subcontractor shall promptly exercise if requested by Contractor. A -16 SAFETY, CLEANINESS AND SANITATION: In the performance of the Work, Subcontractor shall protect the lives and health of its employees and other person; prevent damage to property, materials and equipment, and avoid work interruption. The Subcontractor shall comply with all Federal, State and local government regulations, whether specified or not, in matters relating to or concerning safety and environmental protection. Subcontractor shall also comply with all safety standards, rules and regulations relating to safety, cleanliness, and sanitation established by The Giddings Group, LLC for the Project as a whole and by the Customer of the site at which. the Work is performed. Subcontractor shall immediately stop work and take corrective action when directed by The Giddings Group, LLC or Customer because of any unsafe condition or practice. In case of an emergency, The Giddings Group, LLC or Customer may direct Subcontractor's personnel and resources for the protection of life and property. Subcontractors and their personnel are subject to. The Giddings Group, LLC Construction Co.s Drug -Free Workplace Policy as per the attached Addendum 27. Subcontractor shall attend all safety meetings called by The Giddings Group, LLC and conduct hazard communication training , as well as nay other training programs required by The Giddings Group, LLC. Upon request, Subcontractor must provide evidence that its employees have taken all training programs required by The Giddings Group, LLC. Any employee who fails to take the training or fails to observe the safety precautions shall be removed from the jobsite upon request by The Giddings Group, LLC. Establishment of a safety program by The Giddings Group, LLC shall not relieve the Subcontractor or other parties of their safety responsibilities. The Subcontractor shall establish its own safety program implementing safety measures, policies and standards conforming to those required or recommended by governmental and quasi - government authorities having jurisdiction and by The Giddings Group, LLC and the Customer, including but not limited to requirements imposed by the Subcontract Documents. The Giddings Group, LLC's failure to stop the Subcontractor's unsafe practices shall not relieve the Subcontractor of the responsibility therefore. Page -8- The Subcontractor shall implement appropriate safety measures pertaining to the Subcontract Work, and the Project, including establishing proper notice procedures to protect persons and property at the site and adjacent thereto from injury, loss or damage. Subcontractor shall promptly submit to The Giddings Group, LLC's site safety and health officer at the site, a written report covering all injuries to the employees of Subcontractor or lower tier subcontractor occurring on the site. This report must include the following information: (1) name and address of the injured person; (2) name and address of Subcontractor's liability insurance carrier; (3) a detailed description of the The Giddings Group, LLCident and whether any of The Giddings Group, LLC's equipment, tools, materials, or personnel were involved; (4) dated copy of Subcontractor's report of injury to Subcontractor's insurance carrier; and (5) any other information reasonably requested by The Giddings Group, LLC. At all times during the progress of the Work, and upon completion of the Work, Subcontractor shall clean up daily, remove and dispose of all surplus materials, containers, trash, debris, and the like resulting from Subcontractor's Work. Upon completion, Subcontractor shall promptly remove all its construction equipment, temporary construction buildings, and tools from the site and broom clean its work area. If Subcontractor fails to comply with its cleanup duties within twenty -four (24) hours after written notification form The Giddings Group, LLC of noncompliance, The Giddings Group, LLC may implement appropriate clean up measures without further notice and the cost of the cleanup will be deducted from any amounts due or to become due the Subcontractor. Cleanup will be evaluated daily. If the cleanup is not completed, the job will be shut down on Thursday mornings from 8am - 10a.m, and all workers will be involved in this clean up process. A -17 ENFORCEMENT: Failure or delay by Contractor to require performance of any provision of this Subcontract shall not be deemed a waiver of its right to enforce such provision, or a waiver of any other right. If any provision of this Subcontract is found unenforceable by any court or tribunal, Contractor and Subcontractor agree that such provision shall be modified to the minimum extent necessary to render it enforceable, and that the remainder of this Subcontract shall not be otherwise affected. The mutual agreement of the parties hereto is comprised of each and every provisions hereof, and no provisions shall individually be held unenforceable for lack of mutuality. Subcontractor shall be bound by any labor agreement executed by Contractor or Owner to the extent required by such agreement. This Subcontract may be amended or modified only by a written addendum signed by both parties to the Subcontract. This Subcontract constitutes the entire agreement between the parties, and may not be amended except by written agreement executed by the parties. If there is any conflict between the terms and conditions of this Subcontract and the terms and conditions of the Contract, the terms and conditions imposing a greater burden on Subcontractor shall prevail. This Subcontract constitutes the complete agreement between the parties and supersedes any and all prior understandings, conversations and proposals. A-1 8 INDEPENDENT CONTRACTOR: Subcontractor agrees that it is, and will remain throughout the life of this Subcontract, an independent contractor solely responsible for performing the details of the Work to the extent necessary to avoid any claim or assertion of any employer - employee relationship between Contractor and Subcontractor's employees and an employing unit subject to an in compliance with all applicable tax, unemployment compensation, worker's compensation and other laws. SUBCONTRACTOR STATUS: Subcontractor represents and warrants that it is a (check one) corporation; partnership; sole proprietorship. Its federal tax identification number is Page -9- A -19 GENERAL OBLIGATION: Notwithstanding anything else in this article or elsewhere in the Contract, no obligation of Owner or Contractor shall relieve the Subcontractor of Subcontractor's obligation to perform the work in The Giddings Group, LLCordance with the Contract Documents and in a skillful and workmanlike mariner. Subcontractor shall be obligated to give prompt written notice to Contractor of any act or omission which Subcontractor deems to be a failure by Contractor to meet any of its obligations or responsibilities under the Contract so that Contractor -may make prompt rectification when necessary. A -20 Any provision in the Contract Documents which requires written notice may not have such requirement waived or modified except in writing. A -21 SPECIAL PROVISIONS: (If None, so state.) NONE A -22 Upon being made aware there is a problem between The Giddings Group, LLC and the subcontractor, mediation shall be used to settle this problem, and if it cannot be settled through mediation, both parties will have to agree to arbitration and if both parties do not agree, then legal action will be used to resolve the problem. This Subcontract is effective upon the later of the two dates shown below. SUBCONTRACTOR: CONTRACTOR: Barnett Southern Corporation The Giddings Group, LLC By: By: Title: Date: SUBCONTRACTOR'S OWNER IN HIS INDIVIDUAL CAPACITY: (PRINT NAME) DATE: Title: Project Manager Date: November 28, 2012 Form W -9 (Rev.December 1996) Department of the Treasury Internal Revenue Service Enter your TIN in the appropriate box. For Individuals, this is your social security number (SSN). However, if you are a resident alien OR a sole proprietor, see the instructions on page 2. For other entities, it is your employer identification number (EIN). If you do not have a number, see How to Get a TIN on page 2. OR. Note: If the The Giddings Group, LLCounr is in more than one name see the chart on page 2 for guidelines on whose number to enter, Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxpayer identification number ( or 1 am waiting for a number to be issued to me), and 2. f am not subject to backup withholding because: '(a)1 am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that 1 am subject to backup withholding as a result of a failure to report all interest or dividends, or the IRS has notified me that 1 am no longer subject to backup withholding. Certification Instructions -You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report alt interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interior paid acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement anangemcnt (IRA), and generally, payments other than interest and dividends, you are not required to sign the Certification, but you must provide your current TIN. (Sec instructions on page 2.) Sign Here Request for Taxpayer Identification Number and Certification Address (number, street, and apt. Or suite no.) City, state and ZIP code Taxpayer Identification Number (TIN) Social Security Number Employer identification number Certification Give form to the Requester. Do NOT send to the IRS. Name (If a joint The Giddings Group, LLCount or you changed your name, see Specific Instructions on page 2). Business Name, if different from above (See Specific Instructions on page 2). Check appropriate box: ❑ Individual/Sole Proprietor ❑ Corporation ❑ Partnership D Other Requester's name and address (optional) List The Giddings Group, LLCount number(s) here (optional) For Payees Exempt From Backup Withholding (See -the Instructions on page 2). Signature Date Page -12- PROJECT SHEET PROJECT: REVISE AND EXTEND NW FRONTAGE RD. COMPANY NAME: Barnett Southem Corporation COMPANY ADDRESS: P.O. Box 704 Washington, GA 30673 COMPANY TELEPHONE: 706-678-1507 COMPANY FAX: 706- 678 -1697 OFFICE PERSONNEL RESPONSIBLE FOR THIS PROJECT: NAME TITLE CELL PHONE # EMAIL ADDRESS: NAME TITLE CELL PHONE # EMAIL ADDRESS JOBSITE PERSONNEL RESPONSIBLE FOR THIS PROJECT: NAME TITLE CELL PHONE # EMAIL ADDRESS IF THESE PERSONNEL SHOULD CHANGE DURING THE COURSE OF THE JOB, PLEASE ADVISE THE NAMES OF THE NEW PERSON AS SOON AS POSSIBLE SO WE CAN KEEP OUR RECORDS UP TO DATE. Page -13- C U R P C R A T I 0 N November 28, 2012 TO: GIDDINGS GROUP ATTN: Pete Caye, Jr. RE: Frontage Road Extension Augusta, Georgia We hereby submit specifications and estimates for: Total Bid with All Options Matthew B. Durden 5 809,283.79 Attached is a completed bid schedule for the above referenced project. If you should have any questions regarding the attached bid schedule, please call Ames Barnett at (706) 339 -5842. Notes: 1. The attached Notes / Exclusions sheet applies to the bid. 2. Bid is invalid unless Notes / Exclusions page is made part of this bid. BARNETT SOUTHERN CORPORATION 106 North Alexander Avenue Post Office Box 704 Washington, Georgia 30673 Telephone: 706.678 -I507 Fax: 706- 6784697 www barnettsouthem.corn A1v S M. BARNETr Pnu:Went MATTHEW B. D1JRDEN Vice President CORPORATION NOTES / EXCLUSIONS - 11/28/12 AMES M. BARNETT Pre5iden MATTHEW B. DURDEN Vice President GENERAL & MISCELLANEOUS Layout is for Barnett Southern's scope of work only. Compaction testing is included in bid. No bonds included in bid. Cleaning of existing storm drainage system is not included in bid. Bid is contingent on start of work on December 6, 2012. EROSION CONTROL NPDES monitoring is included in bid. Removal and replacement of existing silt fence is not included in bid. No other erosion control items other than stated are included in bid. No sodding and/or sprigging is included in bid. Cutting of grass is not included in bid. STORMDRAINAGE Bid includes connection to existing structures. Bid includes throats and lids for the catch basins on Frontage Road as specified on bid schedule CURB, BASE & PAYING Prime coat is not included for asphalt paving. Line striping and signage is included in bid. ADD ALTERNATE - UNDERDRAIN Bid is per plans. ADD ALTERNATE - WATER DISTRIBUTION Bid is per plans. 106 North Alexander Avenue Post Office Box 704 Washington, Georgia 30673 Telephone: 706-678-1507 Fax: 706 -67 8-1697 www.barnettsouthern.com Line Item Description 1 Quantity Unit Unit Price 1 Amount GENERAL & MISCELLANEOUS Mobilization 1 Ls $ 2,000.00 $ 2,000.00 Survey / Layout 1 Ls $ 6,000.00 5 6,000.00 $ 10,000.08 Permits / Fees 1 Ls S 10,000.08 Legal Services 1 Ls $ 8,000.00 3 8,000.00 'Engineering Services I Ls S 16,827.50. S 16,827.50 Construction Management Services 1 Ls 8 53,304.37 5 ' 53,30437 NPDES Monitoring 1 Ls 8 2,500.00 . $ 2,500.00 Remove Curb & Gutter I Ls $ 500.00 $ 500.00 Adjust Manhole to Grade 7 Ea 5 255.00 $ 1,785.00 Snb -Total Erosion Control _ $ 100,916.95 EROSION CONTROL Construction Entrance 1 Ea S 1,299.60 $ 1,299.60 Silt Fence Txpe C 4,145 Lf S . 3.38 S 14,010.10 Inlet Protection 14 Ea S 250.00 $ 3,500.00 Permanent Grassing 1.5 Ac $ 1,200.00 $ 1,800.00 Sub -Total Erosion Control $ 20,609 70 GRADING Import Fill Material 1 I 1 Ls $ 50,000.00 1 S 50,000.00 Sub -Total Grading $ 50,000.00 RETAINING WALL Segmental Block Retaining Wall 1 1 1 Ls $ 125,000.00 1 $ 125,000.00 Sub -Total Retaining Wall S 125,000.00 STORMDRAINAGE '18" RCP Class III 140 Lf S 73.14 $ I0,239.60 1033D Catch Basin (incl. throat & lid) 1 Ea S 2,999.62 S 2,999.62 Drop Inlet - Single (5001, M -1) 2 Ea $ 4,690.32 S 9,380.64 Drop Inlet- Double (5001, M -1) 1 Ea $ 12,388.44 8 12,388.44 1033D Throat & Lid 7 Ea $ 1,207.50 S 8,452.50 1034D Throat & Lid 1 Ea $ 1,207.50 S 1,207.50 Sub -Total Storm Drainage - $ 44,66830 CURB, BASE & PAYING 30" Concrete Curb & Gutter (lcd. 4" GABC) 3,320 Lf $ 15.85 S 52,622.00 8" GABC 6,490 Sy S 10.62 $ 68,923.80 Asphalt Paving 6,490 Sy S 33.43 S 216,960.70 Concrete Side Barrier 730 Lf S 70.13 $ 51,194.90 Guardrail 1 Ls $ 4,609.50 $ 4,609.50 Line Striping & Signage 1 Ls $ 5,988.66 S 5,988.66 Sub -Total Curb, Base & Paving $ 400,299.56 TOTAL BID $ 741,494.51 ADD ALTERNATE - UNDE.RDRAIN 4" Underdrain 1 2,035 1 Lf S 9.07 1 S 18,457.45 Total Add Alternate - Underdrain $ 18,457.45 ADD ALTERNATE- WATER DISTRIBUTION 6" DIP Class 350 80 Lf S 20.68 8 ' 1,654.40 6" C900 DR 14 1,480 11 S 12.15 $ 17,982.00 16" Jack & Bore 50 Lf S 136.25 S 6,812.50 Fittings 1 Ls S 2,017.92 S 2017.92 Fire Hydrant Assembly 3 Ea $ 4,850.25 $ 14,550.75 $ 1,33531 Connect Prop. 6" to Ex. 6" w/ Sleeve I Ea $ 1,335.31 Connect Prop. 6" to Ex. 6" w/ TS &V 1 Ea $ 3,228.95 $ 3,228.95 Construction Layout & Water Line Testing 1 Ls S 1,750.00 5 1,750.00 ,, jota1,A44 Alternate 7 Water Distribution $ 49,331.83 C O R P O R A T I O N Frontage Road Extension Bid Schedule - 11/28/12 cr nut nue rose tarnce isox N4 W ashin gton, Georgia Telephone: 706 -678 -1507 Fax: 706 - 678-1697 www.barnettsouthern.com AMES M. BARNETT President MATTHEW B. DURDEN Vice President 1:6) -28 -2012 11:34 From:ACES INC 7062623299 To:7068681516 Paee:4 /4 Proposal Number. P1211-11 Page 3 of 3 ACCEPTANCE OF PROPOSAL I have read the proposal prepared by Alternative Construction and Environmental Solution, Inc. (Proposal Number: P1211 -11) dated November 27, 2012 and agree to be bound by the terms and conditions in this proposal. In addition, I certify that I am authorized to enter into this agreement for services on behalf of The Giddings Group, LLC. This proposal is accepted as written by: Printed Namc Signature Pd Number (AN uppliuublc) Tide Delo Please provide the following information if different than the addressee of this proposal: ATTN: Phones Fax: Report Address and Recipient: !r -Moil: AT1N: Phone. Pax: Billing Address and Recipient: E -Mail: