Standard Form of Agreement between The University of Georgia

Standard Form of Agreement between
The University of Georgia Athletic Association, Inc.
and Construction Manager At Risk
This agreement (“Agreement”) is entered by and between:
“UGAA”: University of Georgia Athletic Association, Inc.
Butts-Mehre Heritage Hall
1 Selig Circle
Athens, Georgia 30603
and “Construction Manager” (“CM”): ____________ (Construction Manager’s legal name)
___________________ (street address)
_________________________ (street address)
_______________, Georgia _______
CM’s professional license number: _____________
Classification of license: ______________________
Qualifying agent Name: _____________ & No._____
CM’s Federal Employer Tax Identification No._____
involving a project: _____________ (name of Project) generally described as
_____________ (insert brief general description of the
Project contemplated) (“Project”) as that Project may be
more specifically described in Construction
Documents, and pertaining to…
property located at or near: _____________________ (“the Property”) (insert
specific location of Project) on land owned by the Board
of Regents of the University System of Georgia
(“Board of Regents”) in or near _____________,
Georgia
involving Design Professional (“Design ____________ (Design Professional’s legal name)
Professional”): ___________________ (street address)
_________________________ (street address)
_______________, Georgia _______
Effective Date of Agreement: The date of the signature of the UGAA representative
below in execution of this Agreement.
Contractual Date of Substantial The ___ day of ____________, 201____.
Completion
CM Preconstruction Fee: $___________.
CM Preconstruction Overhead Costs: $___________.
CM Construction Fee: $___________.
CM Construction Overhead Costs: $___________.
Stated Cost Limitation: $___________.
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For good and valuable consideration, the sufficiency and receipt of which is acknowledged by
UGAA and CM (“the Parties”), THE PARTIES AGREE AS FOLLOWS:
ARTICLE I – BASIC TERMS
A.
The Work. CM shall provide all labor, materials, and equipment; administration, supervision,
construction management, construction administration, scheduling, and related services
(collectively, “Services”); coordination of the work, trades, and subcontractors; safety and
security measures; earthwork; environmental protection measures; shipping; temporary
facilities; temporary and permanent utility services and connections; shop drawings and other
submittals; obtaining governmental inspections; insurance and bonds; certifications; Closeout
Materials; and all other work, Services, and measures needed for complete construction (or
renovation, as the case may be) of those structure(s) and site improvements indicated in the
Contract Documents listed in Supplement A (as Supplement A is amended upon execution of
Component Change Orders, the GMP Change Order, and subsequent Change Orders (where
applicable)), as well any other work, accessories, materials, etc. reasonably inferable therefrom,
in order to construct a complete Project that is fit for use as intended by UGAA (collectively, the
“Work” or “Scope of Work”), as that Work may be modified from time-to-time by Change
Orders executed in accordance with Article VIII.
B.
Contract Time. The “Contract Time” is the period between the Effective Date of this Agreement
and the Contractual Date of Substantial Completion (as indicated in the information preceding
Article I), as that date may be modified by duly executed Change Order. Work shall begin
within three days after the Effective Date of this Agreement [__] or within three days after
UGAA’s issuance (by e-mail or otherwise) of a written Notice to Proceed [__] (select one).
C.
Substantial Completion. The Contractual Date of Substantial Completion (as indicated in the
information preceding Article I) is the date on which CM is contractually required to achieve
the following: (1) documents are issued by the State Fire Marshal (or UGA Fire Safety Division
officials or other delegatees of the State Fire Marshal) authorizing occupancy; (2) final approvals
are issued by the county health department and other governmental authorities having
jurisdiction over the Project; (3) CM’s Performance and Payment Bond surety (“Surety”) has
delivered to UGAA the Surety’s written Consent to Release of Retainage (“Consent of Surety”);
and (4) the Project is, in the good faith opinion of UGAA, complete and useable in the manner
intended by UGAA, with the only Work remaining being Punchlist Work (as that term is
defined in ¶ II(C)(1)). The Realized Date of Substantial Completion is the date on which CM,
in fact, actually achieves, in the good faith judgment of UGAA, all of items (1) through (4) listed
above in this paragraph.
D.
Stated Cost Limitation; Guaranteed Maximum Price (“GMP”). Until execution of the GMP
Change Order, the term “Stated Cost Limitation” shall be deemed to mean and refer to the
maximum amount that may be paid to CM by UGAA as complete compensation for CM’s full
and timely performance of the Work and obligations set forth herein, including overhead and
profit (exclusive of furnishings, CM Preconstruction Fee, and CM Preconstruction Overhead
Costs). Upon execution of the GMP Change Order, the GMP becomes the maximum amount
(exclusive of CM Preconstruction Fee and CM Preconstruction Overhead Costs) that may be
paid to CM by UGAA as complete compensation for CM’s full and timely performance of the
Work and obligations set forth herein, which amount includes: (1) the Cost of the Work; (2) a
CM Contingency Account (in an amount approved by UGAA’s designated representative),
which the ADR will establish as part of the Cost of the Work, as indicated in ¶ V(B)(2)(a); (3)
CM Construction Fee; and (4) CM Construction Overhead Costs – as those terms are defined in
¶ II(C)(2). Thereafter, the GMP established by GMP Change Order can be modified only by
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subsequent Change Orders, duly executed in accordance with Article VIII. Except for those CM
Preconstruction Fees and CM Preconstruction Overhead Costs that are earned, substantiated,
and otherwise justified herein, in no case shall CM be entitled to payment of amounts in excess
of the GMP minus any unallocated CM Contingency Account amount.
E.
Consideration. The Parties agree that the GMP includes One Hundred Dollars ($100.00) in
separate consideration paid to CM (as part of UGAA’s initial payment) to obtain its acceptance
of indemnity, insurance, forum-selection and venue, certifications, financial disclosures,
warranties, duty to discharge liens, intellectual property, survival provisions, and any other
special obligations or duties imposed herein for which separate consideration is or may be
appropriate.
F.
Specific party-related information. The following persons are authorized to represent their
respective Parties in accordance with Article XVI:
1.
CM’s designated representative (“CMDR”). The CMDR is the authorized person
signing this Agreement below for the CM, unless another person is designated as
follows: ___________.
2.
UGAA’s designated representative (“ADR”). Communications sent to UGAA shall be
sent (in the format and by the means required herein) in care of the following initially
designated ADR (or a successor duly appointed in writing by UGAA):
University of Georgia Athletic Association, Inc.
in care of: _______________, Project Manager Athletics
University of Georgia
Offices of University Architects for Facilities Planning
382 East Broad Street
Athens, Georgia 30602
(706) 542-3605
G.
Agreed minimum damages for late completion. CM acknowledges that UGAA will suffer
damages as a result of late completion of the Work, the amount of which damages is difficult to
estimate in advance. Therefore, not as a penalty, nor as a liquidated amount, but as partial
compensation for the minimum delay-related damages that UGAA will suffer if CM fails to
complete the Work within the Contract Time, UGAA may (at its own election) unilaterally
reduce the GMP by (or, in the alternative, receive immediate payment from CM in) the
following amounts: $_____ per day for the first _____ days beyond the Contractual Date of
Substantial Completion that the Work is not substantially complete; thereafter increasing to
$_____ per day for the next _____ days beyond the Contractual Date of Substantial Completion
that the Work is not substantially complete; and, thereafter, by $_____ per day beyond the
Contractual Date of Substantial Completion that the Work is not substantially complete. The
purpose of this clause is not to limit UGAA’s recovery of actual direct and/or indirect or
consequential damages, but rather to establish a process for unilateral deductive Change Orders
to be issued by UGAA in advance of its ultimate determination of its actual delay-related
damages incurred due to untimely performance by CM. UGAA expressly reserves its right to
recover from CM all other damages incurred as a result of late completion of the Work.
H.
CPM Scheduling required. CM shall provide Critical Path Method (“CPM”) Scheduling, as
defined in ¶ VI(E), with all schedule-related documents indicating, among other things, Work
on the Critical Path.
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I.
Preconstruction Services. CM shall [x] shall not [__] (select one) provide Preconstruction Services,
as set forth in ¶ III(K) and elsewhere herein. Construction-phase Services, if any, will only be
provided after UGAA’s issuance of a written Notice to Proceed with Construction-phase
Services as indicated in ¶ III(L)(1)(a).
J.
Dedicated key Project management.
K.
1.
CM’s Superintendent must be assigned full-time to the Project site from commencement
of the Work until its Final Completion. CM’s Project Manager must be dedicated to the
Project full-time [__] as needed [__] (select one) until the Realized Date of Substantial
Completion. CM’s Project Manager must be present on-site as needed until the Realized
Date of Substantial Completion.
2.
Work and Services performed by CM are personal in nature. CM shall take all steps
necessary to assure that, once approved by UGAA, CM’s Superintendent, CM’s Project
Manager, and other personnel designated as “key” by ADR remain assigned in their
respective key capacities to this Project from the execution of this Agreement until Final
Completion of the Work – except where a replacement is requested by ADR. If any of
those key personnel leave the employment of CM, a replacement must be provided with
the foregoing commitment to this Project, which replacement must be approved in
advance by ADR (which approval can be withheld for any reason). In no case shall
replacement of personnel result in an increase in overhead costs and wage rates paid for
the affected personnel by UGAA beyond those set forth in Supplement N and
Supplement O, as the case may be.
Project meetings.
1.
Mandatory preconstruction meeting. A final preconstruction meeting will be held at the
Project site, at a time announced by the ADR, to be attended by CMDR, CM’s
Superintendent, its Project Manager, Design Professional, designated representatives
from each major Subcontractor, supplier, and others invited by the ADR, and
representatives of affected utilities and UGAA’s Testing Consultants (to be invited by
CM). If the Project involves a Land Disturbance Activities permit and/or an NPDES
permit, UGA Environmental Safety Division shall be invited to the meeting by CM.
Agenda for the meeting shall include, among other things, key personnel and
responsibilities, review of Project Schedule, Project site logistics, Contract Documents,
contract administration, and UGAA policies and procedures. At least five days before
that meeting, CM must submit to the ADR the original and one complete copy (in both
printed and digital form) of each of the following documents:
a.
Proposed Baseline Project Schedule, with back-up data, in accordance with
Article VI;
b.
Proposed Schedule of Values, with back-up data, in accordance with Article V;
c.
Documents demonstrating governmental approval of CM to transact business in
Georgia, as well as those pertaining to state sales and use tax certificates,
business licenses, professional service and contractor licenses, franchise tax
registrations and applications, and any required state and local tax bonds;
d.
Completed Notice of Commencement (in the form substantially similar to the
one supplied in Supplement K), to be filed and posted by CM in accordance
with the requirements stated in ¶ III(J)(5);
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2.
L.
e.
CM’s manual of site-specific safety procedures (including emergency medical,
fire, and law enforcement numbers), together with a statement identifying the
CM’s officer who is chiefly responsible for safety training of workers on the
Project;
f.
CM’s proposed Waste Management Plan as required under ¶ XV(P); and
g.
Twenty-four-hour / seven-day contact information of CM’s Superintendent and
other responsible representatives who can be called in the event of an emergency
or other incident on the Project site (with that information being updated by CM
during the course of the Work – and shared by CM with UGA Police
Department).
Project meetings. Meetings shall be held at the Project site at weekly and bi-weekly
intervals, as determined during the course of the Project by the ADR – and at such other
times as deemed necessary by the ADR.
Performance and Payment Bonds. CM shall provide Performance and Payment Bonds
(“Bonds”) in accordance with ¶ III(L)(1)(e) and Article XIII as follows (select one):
1.
[__]
Provide Bonds upon execution of this Agreement, with an initial penal sum of
each Bond equal to the Stated Cost Limitation as indicated in the information
preceding Art. I (updated concurrent with execution of a GMP Change Order
and subsequent Change Orders); or
2.
[__]
Provide Bonds at or before execution of Component Change Orders with the
penal sum of each Bond in place at any given time to be not less than the total of
approved Component Change Order Sums to-date (updated concurrent with
execution of a GMP Change Order and subsequent Change Orders); or
3.
[__]
Provide Bonds at or before execution of the GMP Change Order with the initial
penal sum of each Bond equal to the GMP; or
4.
[__]
CM not required to provide Payment Bond and Performance Bond.
M.
Affidavits, Lien Waivers, and Release Upon Final Payment. In addition to CM Waiver and
Release Upon Final Payment (in the form supplied as Supplement G) and CM Final Affidavit
(in the form supplied as Supplement H), CM shall also supply Subcontractor Waivers and
Releases upon Final Payment (in form supplied as Supplement I) for each Subcontractor who
performed Work with a value exceeding $ 999.99 and whose Waivers and Releases are required
under ¶ V(H)(4).
N.
Interim Payment Applications. On or before the twenty-fifth day of each month, CM shall
deliver drafts of its proposed Interim Payment Applications (American Institute of Architects
(“AIA”) form G702 and G703) (consecutively numbered) to the ADR and Design Professional in
accordance with ¶ V(B)(3) for the period ending on the twenty-fifth day of the subject month.
The following must also be supplied with each such proposed Application (and with the
submitted versions as well, which must be certified by the Design Professional): (Select those
that are applicable, and complete the information requested.)
1.
[x]
CM Interim Waiver and Release Upon Payment executed in the form provided
as Supplement D;
2.
[x]
CM Interim Affidavit, completed, sworn, and submitted under oath in the form
provided as Supplement E;
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3.
[x]
Updated master list of unpaid Subcontractors and suppliers. List of each
Subcontractor (of any tier) who has not been paid from funds received by CM for
the Subcontractor’s Work, the amount unpaid to each, and the reason for
nonpayment;
4.
[x]
Subcontractors’ Interim Waiver and Release Upon Payment, for each
Subcontractor, supplier, or vendor for whose Work payment is applied for in
amounts exceeding $999.99, in the form supplied in Supplement F are required:
(check one)
[ ]
With each Interim Payment Application; or
[ ]
At such intervals or whenever requested by the ADR;
5.
[ ]
Progress Photos, supplied in accordance with ¶ I(P);
6.
[ ]
Updated logs of Submittals, Proposed Change Orders (“PCO’s”), executed
Change Orders, Requests for Information (“RFI’s”), Instructions to Change
(“ITC’s”), and auxiliary clarification sketches (“ASK’s”), updated to reflect the
current status of Submittals, PCO’s and Change Orders, RFI’s, ITC’s, and ASK’s
received, rejected, approved, revised, reviewed, issued, and/or pending for or
during subject period;
7.
[_]
Progress Reports as further described in ¶ VI(H), at intervals stated in ¶ I(Q);
8.
[_]
Substantive support and back-up information for Payment Applications.
When requested by ADR, provide the following: legible copies of all invoices,
bills, delivery tickets, time and payroll records for all persons or entities who
provided labor, materials, equipment, rental equipment, etc., to the Project along
with proof of payment of each, and other documents as may be requested by the
ADR for determination of Project progress and costs (“back-up”);
9.
[_]
Proof of ongoing licensure and insurance coverage at renewal dates. Thirty to
sixty days before applicable renewal dates, provide proof of CM’s and
Subcontractors’ possession and renewal of applicable licenses, certificates, and
authorities required to perform the Work, and required insurance coverage;
10.
[_]
Bond amendments. In accordance with ¶ III(L)(1)(e) and Article XIII;
11.
[_]
Then-current approved Project Schedule;
12.
[_]
Daily Reports, when requested by ADR, for each day within the period covered
by the Payment Application;
13.
[_]
Progress and Completion Schedule, describing and graphically detailing
historic and future Milestone Dates missed and met, as well as other progress of
the Work;
14.
[_]
Summary Schedule Comparison, upon ADR request and as described in Article
VI, comparing the Project Schedule with updated Progress and Completion
Schedule;
15.
[_]
Weather information and back-up. Copies of weather-related notices to the
ADR, PCO’s (if any), and other back-up information pertaining to Adverse
Weather Days (in accordance with ¶¶ III(J)(8), VI(D)(3), and VIII(C)(8)(c)) during
the subject period (and, if requested, for previous periods); and
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O.
P.
16.
[_]
CM Contingency Account. A statement of account, indicating: (a) the
unallocated amount remaining in the CM Contingency Account; (b) proposed
reallocations requested by CM from that account (and the basis therefor); and (c)
details of all reallocations previously applied from the CM Contingency Account.
17.
[x]
Other requested information requested by ADR in support of the amounts
claimed in the Payment Application.
18.
Condition precedent. CM’s provision of the foregoing and any other information
required in accordance with this ¶ I(N) is a condition precedent to UGAA’s obligation to
pay.
19.
No limitation on ADR’s right to obtain Project information. Nothing in this
Agreement shall prevent ADR from requesting and obtaining copies of any other
Project-related documents or information, including but not limited to those elements
selected above at any time and at any interval during the course of the Project.
20.
Special documentation required for Payment Application No. 1: In addition to the
other information required hereunder with respect to Payment Applications, Payment
Application No. 1 shall be accompanied by additional copies of the filed Notice of
Commencement, all land disturbance permits, National Pollution Discharge Elimination
System (“NPDES”) permits, building permits, health department permits, and any other
governmentally issued permits needed to perform the Work and/or that must be posted
on-site, Performance and Payment Bonds, insurance certificates and policies (if not
already provided to the ADR by CM), and any other information requested by the ADR.
21.
Copies. CM shall submit 0 print copies and an electronic copy of draft Payment
Applications to ADR and Design Professional. Once approved by ADR, CM shall submit
four original printed copies (and one electronic read-only digital copy of same) of its
certified Payment Applications to Design Professional and one digital copy of same to
ADR – with the copies issued to Design Professional accompanied by a request for
Design-Professional’s certification and forwarding to ADR.
Geotechnical Report. (Select which one of the following applies, and supply the needed information.)
[ ]
A Geotechnical Report has been prepared by _________ (insert), and dated ____________,
201____, which report is incorporated in this Agreement by reference and is either
attached to it or has been made available in its entirety to CM.
[ ]
No Geotechnical Report is incorporated herein.
Photos.
1.
Baseline photos: Before the mandatory preconstruction meeting and before
commencing the Work, CM shall take digital, date-stamped photographs and video of
all existing conditions on the Project site and within affected structures – submitting a
digital copy to ADR at that meeting. This documentation will form the basis of the
existing conditions and CM will be responsible, at CM’s cost, for repair of any or all
damages to existing facilities and structures arising out of or relating to CM’s
performance of the Work. Compensation for all such documentation and repair shall be
deemed to be part of the CM Construction Overhead Cost within the GMP.
2.
Progress photos: Digital, date-stamped progress photos (“Progress Photos”) shall be
taken by CM, showing Work as it is installed, Work and conditions related to PCO’s and
Change Orders, and Work-related site and weather conditions. Representative Progress
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Photos must be submitted with each Payment Application if required pursuant to ¶
I(N)(5). A complete set of Progress Photos must be provided to ADR as part of Closeout
Materials (see ¶¶ III(M)(8)(b) and III(Q)(6)(e)) and at any other time upon ADR request.
Q.
Progress Reports. CM shall submit to ADR narrative Progress Reports on a bi-weekly [__]
monthly [x] (select one) basis, as further described in ¶ VI(H). Those reports submitted near the
end of the calendar month shall be submitted concurrently with CM’s Interim Payment
Application for the subject period.
R.
Temporary Facilities. In addition to those Temporary Facilities listed in ¶ III(M)(9), CM shall,
as part of the CM Construction Overhead Costs within the GMP, provide the following on-site:
(Select those that apply.)
1.
[x]
Complete Conformed Set of Construction Documents (indicating Scope of Work
reflecting all executed addenda and Change Orders), as-built Drawings and
Specifications, and Daily Reports – to which shall be attached relevant ASK’s as
they are received;
2.
[x]
An office that is secure, weather-tight, heated, air conditioned, and supplied with
a photocopier, Internet access, fax machine, and an operational telephone with 91-1 emergency calling capability;
3.
[x]
Sanitary toilet facilities, regularly maintained in a clean and sanitary condition
meeting all local and state health standards throughout their use;
4.
[x]
A secure metal braided fence, with windscreen, at the perimeter of the Work
Area to prevent unauthorized intrusion into any area in which Work is being
performed or hazards exist related to the Work; or as otherwise indicated in the
Contract Documents, posting intermittently on the fence no trespassing signs
and other signs noting potentially dangerous conditions within;
5.
[x]
Project sign: rigidly and independently supported, four foot by eight foot in size,
black and white or full color (as ADR may require), and in accordance with
graphic design and information to be provided by UGAA, with a proof design
supplied by CM to ADR for approval;
6.
[x]
Up-dated logs of shop drawings and other Submittals and Resubmittals, RFI’s,
PCO’s, ITC’s, Progress Reports, ASK’s, etc.;
7.
[x]
Project directory that lists, for CM and for each Subcontractor, the name, trade,
and person-in-charge – and that person’s regular and after-hours telephone
number(s); and
8.
[x]
Other Temporary Facilities: as indicated herein and as listed in Supplement O.
In addition to the foregoing, CM shall provide: ________________.
S.
Project delivery method. UGAA intends to construct the Project under a Construction
Management method of Project delivery, as is indicated herein. CM shall, at all times cooperate
with Design Professional in its performance of Preconstruction Services – and do so in such a
way that facilitates Design Professional’s design of a Project that can be efficiently and
economically constructed within the Stated Cost Limitation, and ultimately, within the GMP.
T.
Self-insured insurance retention. Except for qualified self-insurers, approved as such in
advance by UGAA, self-insured retention (where otherwise permitted herein) in any policy of
insurance shall not exceed $ One Hundred Thousand Dollars ($100,000.00).
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U.
Full and lawful performance. CM hereby agrees to full performance of the terms, duties,
obligations, responsibilities, and conditions established in this Agreement and to perform the
Work in compliance with all applicable Laws (as that term is defined in ¶ II(C)) and with the
Standard of Care set forth in ¶ III(D).
V.
Design services.
1.
UGAA engagement of Design Professional. UGAA intends to engage a licensed design
professional (“Design Professional”) to prepare designs and Construction Documents
describing the Work. Copies of any executed UGAA-Design Professional Agreement are
available to CM upon request. CM shall at all times cooperate in its implementation and
performance. CM will provide information and advice to UGAA and Design
Professional throughout the preconstruction process – and will cooperate with both of
them to facilitate preparation of a design that can be efficiently and economically
constructed within the Contract Time and for an amount less than or equal to the Stated
Cost Limitation (or the GMP, once the GMP Change Order is executed). Except where
delegated design responsibility is expressly provided for in this Agreement and/or the
other Contract Documents, nothing in this Agreement shall be construed as imposing on
CM the duties of a licensed design professional with respect to preparation of the design
and Construction Documents.
2.
Delegated design services. Where the Contract Documents expressly require CM to
provide certain design services, qualified special installations, or the seal, signature,
and/or other certification of designs or documents by architects, engineers, or other
licensed design professionals, etc. (“Delegated Professional Designers” or “DPD’s”), CM
shall also provide, as a condition precedent to UGAA’s obligation to pay: (a) proof of
requisite licensing or qualification of the subcontracting DPD who provides the services
in CM’s behalf; and (b) proof of professional liability insurance coverage of CM and that
of DPD and his or her business organization in amounts specified in Article XII (or
greater amounts if required by Law), together with a copy of each policy of professional
liability insurance, all to be updated at each renewal date. For the scope of services
designated in the Contract Documents as “delegated,” the DPD shall: (i) adhere to the
requirements indicated in the Contract Documents with respect to the delegated Scope
of Work; and (ii) assume full professional responsibility for the Scope of Work for which
CM is responsible for delegated design. CM shall provide the professional services of a
licensed or state-certified DPD for the following Scopes of Work: (Select those that apply.)
3.
a.
[x]
fire suppression systems design;
b.
[x]
fire alarm systems design;
c.
[__]
light-gage metal framing;
d.
[__]
safety netting design;
e.
[__]
curtain wall design;
f.
[__]
elevator design;
g.
[__]
other _________________________ .
Delegated Professional Designer (“DPD”). CM and the licensed DPD engaged by CM
in accordance with the immediately preceding subparagraph shall concurrently provide
to ADR and Design Professional (for review and comment) copies of all drawings,
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specifications, shop drawings, construction documents, and other products of the DPD’s
services. CM shall employ no DPD except those approved in advance in writing by
ADR. Nothing in this paragraph shall relieve the DPD of its obligation to assume full
professional responsibility for the design and documents prepared pursuant to the
delegation.
W.
Permitting Services. As part of the Services, CM shall assist UGAA and Design Professional in
the process of applying for building, land disturbance, health department, and other
governmental permits on the overall Project (“UGAA Permits”); and shall, before
commencement of Work on-site, obtain such permits from the issuing agency of government –
with any UGAA Permit fees incurred by CM being reimbursed by UGAA as part of Cost of the
Work without further markup. Permits for Subcontract Work shall be obtained and paid for by
Subcontractors as part of their respective Subcontract Prices.
X.
Existing Hazardous Materials Report. (Select which one of the following applies, and supply the
needed information.)
[ ]
A Hazardous Materials Report has been prepared by _________ (insert), and dated
____________, 201____, which report is incorporated in this Agreement by reference and
is either attached to it – or has been made available in its entirety to CM.
[ ]
No Hazardous Materials Report is incorporated herein.
Y.
Certified improvements survey. CM is [__] is not [__] (select one) required to perform a site
situation survey in accordance with ¶ III(J)(4).
Z.
Separate bid packages. This Agreement anticipates that construction will [x] will not [__] (select
one) involve staged or phased construction with multiple, separate bid packages.
AA.
Sustainability objectives. All Work shall be performed taking into account and satisfying
sustainability and energy efficiency of the constructed product: (Select which one of the following
options applies and, if the first applies, supply the certification standard and level.)
BB.
1.
[__]
Whether or not actual application is anticipated at the outset, CM agrees to
perform the Work so as to further sustainability certification of the Project by
___insert name of organization or standard______ at the __insert__ level; or
2.
[__]
No particular third-party sustainability standard is established as an objective for
this Project.
Existing facilities. In all cases, and in addition to all other obligations set forth herein with
regard to existing facilities, CM shall schedule, plan, and coordinate the Work indicated in the
Contract Documents so as to not interfere with operation and safety of existing facilities and
other construction projects in or near the Project. (Select which one of the following generally applies to
the Work to performed in accordance with the Contract Documents.)
1.
[__]
The Work generally involves primarily new construction, and the only existing
facilities impacted by it are impacted by site improvements or are off-site; or
2.
[__]
The Work primarily involves the addition to, or renovation of, one or more
existing building structures, which must remain continually operational during
the performance of the Work; or
3.
[__]
The Work primarily involves the addition to, or renovation of, one or more
existing building structures, which need not remain continually operational
during the performance of the Work; or
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4.
[__]
The Work does not primarily involve construction or modification of a building,
but does involve site improvements or installation of discrete systems or
equipment; or
5.
[__]
The Work primarily involves new building construction and related site
improvements; or
6.
[__]
______________________ (insert other applicable conditions).
__
ARTICLE II – GENERAL TERMS AND CONDITIONS
A.
Entire agreement. This Agreement contains the Parties’ entire understanding with respect to
the Work and the Project, replacing and extinguishing any and all earlier representations,
statements, negotiations, proposals, or agreements by the Parties regarding the Work and the
Project.
B.
Arms-length transaction. CM enters this Agreement on the basis of its own investigation and
information. In doing so, it does not rely on any statements or representations by UGAA or
others. Because it is the product of arms-length bargaining by sophisticated Parties with
substantial bargaining power, each of which either had the advice of an attorney or had the
opportunity to obtain such advice, and because both Parties influenced its final terms, this
Agreement shall not be construed against either Party on the basis of authorship, drafting, or
origin - and the doctrine of contra proferentem shall not apply to its interpretation, construction,
or enforcement.
C.
Terminology. The following terms shall bear the following meanings:
1.
Generally.
a.
The term “and/or” shall be applied to mean “either or both” - such that “A
and/or B” is interpreted as: (1) “A,” (2) “B,” or (3) “both A and B.”
b.
Unless otherwise clearly indicated in context, the term “approved” shall mean
“approved by UGAA.”
c.
“ASK’s” are auxiliary clarification sketches supplied by ADR or Design
Professional, as the case may be.
d.
References herein to “attorneys’ fees” shall be deemed to include fees charged
by attorneys, fees charged by experts, expert witness fees, court costs, court
reporter fees, and other litigation and dispute-related costs.
e.
A “certification” (when required herein of CM or a Subcontractor) shall mean a
written statement, the truth of which is sworn under oath before a notary. To
“certify” is to attest before a notary in writing and under pain of perjury the
truth of the subject of the certification from personal investigation and/or
knowledge, or, in the case of licensed design professional certifying a design,
drawing, or document, to apply the professional’s seal and signature implicitly
attesting to the same or to the professional oversight applied to the document
certified (as the case may be).
f.
The term “Contract Documents” shall initially mean and be deemed to refer to
this CM-UGAA Agreement, Supplements A through T attached and
incorporated hereto, and other documents expressly incorporated herein,
including those listed in Supplement A as attached hereto – and further
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described in ¶ II(Q). Upon UGAA’s execution of Component Change Orders,
the GMP Change Order, and subsequent Change Orders, the detailed working
drawings and specifications prepared by Design Professional that indicate the
Scope of Work to be constructed pursuant to those Change Orders (collectively,
“Construction Documents”) shall be deemed to be Contract Documents – once
they are listed in an amended Supplement A, which shall be incorporated in
those respective Change Orders in amended form.
g.
Unless otherwise stated, the term “day” shall mean “calendar day.”
h.
The term “Design Professional” shall mean and be deemed to refer to the lead
Project Design Professional as identified in the information preceding Article I
(who may be architect(s), engineer(s), or other licensed professionals as the case
may be).
i.
Unless otherwise provided in context, an “express” term is one that is literally
stated or directly and specifically written in this Agreement or in an incorporated
document.
j.
“FOR CONSTRUCTION Construction Documents” are Construction
Documents that are expressly designated by Design Professional as being “FOR
CONSTRUCTION” and bear the Design Professional’s signature and
professional seal (or those of its licensed Subconsultants with respect to their
portions of the Work depicted). Only FOR CONSTRUCTION Construction
Documents are to be used for construction of the Work.
k.
The term “herein” shall mean “in this Agreement or Supplements to it.” The
term “hereunder” shall mean “under this Agreement.” Supplements referred to
are those attached to this Agreement, labeled as Supplements A through T
inclusive, all of which are incorporated as if set forth fully herein. Crossreferences to paragraphs, articles, and Supplements refer to paragraphs, articles,
and Supplements in or to this Agreement. Reference to articles, paragraphs, or
subparagraphs herein shall be deemed to include references to lower-tier
paragraphs and/or subparagraphs that follow them.
l.
The term “ITC” shall mean Instructions to Change, as that is described in ¶
VIII(B).
m.
The term “Laws” shall mean and refer to all applicable federal, state, and local
statutes, codes, regulations, ordinances, orders, and rules of governing
authorities having jurisdiction over the Services, the Work, the Project, the
Property, the CM, UGAA, UGA, or the Board of Regents.
n.
The terms “Noncompliant Work” or “Defective Work” shall mean Work that
includes defects of workmanship or material or that does not otherwise conform
to, or comply with, the requirements of Contract Documents (or, in the judgment
of state or local building and fire officials, applicable codes or other Laws, as the
case may be).
o.
The term “Overnight Delivery” means next business day delivery by a carrier
statutorily regulated by government that provides technology to electronically
track transit, delivery, and receipt of packages, including, but not limited to:
United Parcel Service or Federal Express Corp.
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2.
p.
The term “PCO” shall mean Proposed Change Order, as that is described in ¶
VIII(B).
q.
The term “Project Information” shall mean and be deemed to refer to all Projectrelated text, designs, drawings, specifications, Construction Documents, shop
drawings, RFI’s, PCO’s, architectural works, building designs, reports, forms,
models, computer files, instruments of service, surveys, or other documents and
expression created or provided by or to CM during the course of performance of
the Work and the Project.
r.
Unless otherwise stated in context, the terms “provide,” “supply,” ”furnish,”
and any other term setting forth herein a duty, obligation, or task (but not
expressly imposing that duty, obligation, or task on another person or entity)
shall be deemed to indicate an obligation of the CM to provide or supply the
object of the term.
s.
The terms “Punchlist” or “Punchlist Work” shall mean and be deemed to refer
to a list of Work compiled at the time of the Realized Date of Substantial
Completion that is composed of incomplete or otherwise Defective Work that is
of a such a minor nature and magnitude that it can, with respect to each item, be
completed without disruption of UGAA’s ongoing operations or use of the
subject structure and/or site and that it can be completed within thirty days of
the Realized Date of Substantial Completion. Incomplete or Defective Work that
is more-than-minor in nature or magnitude (i.e., which does not satisfy this
definition) cannot be deemed mere Punchlist Work – and its existence will, at the
election of UGAA, preclude realization of “Substantial Completion.”
t.
The term “RFI” shall mean a request for information, as described in ¶ VIII(A).
u.
References herein to approvals and inspections of the State Fire Marshal shall be
deemed to mean those of UGA Fire Safety Division, where the State Fire
Marshal has so delegated authority.
v.
The term “Subcontractors” shall mean and be deemed to refer to persons or
entities engaged by CM (or by CM’s agents, employees, or Subcontractors of any
tier) to perform portions of the Work on CM’s behalf, including but not limited
to suppliers, fabricators, vendors, DPD’s, etc.
CM-specific terms.
a.
CM Preconstruction Fee. The amount indicated in the information preceding
Article I for “CM Preconstruction Fee” is the maximum amount to which CM
may be entitled (as gross profit and overhead) for performance of
Preconstruction Services on the Project - payment of which CM Preconstruction
Fee is strictly limited proportionately at any given time to the percentage of CM’s
completion of the Preconstruction Services. CM Preconstruction Fee ceases to
accrue upon UGAA’s execution of a GMP Change Order by UGAA.
b.
CM Preconstruction Overhead Costs. The amount indicated in the information
preceding Article I for “CM Preconstruction Overhead Costs” is the maximum
amount to which CM may be entitled (exclusive of CM Preconstruction Fee) for
labor, salaries, wages, and other costs and expenses incurred by CM in the
complete performance of all administration, management, scheduling,
supervision, inspection, program analysis, planning, utilities investigations, site
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investigations, cost estimating, permitting assistance, and other Preconstruction
Services required hereunder (“Preconstruction Services”), allowable CM
Preconstruction Overhead Costs being only those listed in Supplement N (and
as further limited therein) – payment of which CM Preconstruction Overhead
Costs is further limited proportionately at any given time to the percentage of
CM’s completion of the Preconstruction Services. CM Preconstruction Overhead
Costs cease to accrue upon UGAA’s execution of a GMP Change Order.
c.
Cost of the Work is the total amount of allowable costs to be paid to CM for the
complete performance of the Work, including Subcontract Costs and all CM
expenses incurred by CM with respect to Self-performed Work. Costs to be
included in Cost of the Work are as set forth in ¶ V(B)(2)(a). Cost of the Work
excludes CM’s Construction Fee and CM’s Construction Overhead Costs as listed
and limited herein and in Supplement O.
d.
CM Construction Fee. The amount indicated in the information preceding
Article I for “CM Construction Fee” is the maximum amount to which CM may
be entitled as gross profit on the Project (exclusive of CM Preconstruction Fee,
CM Preconstruction Overhead Costs, Cost of the Work, and CM Construction
Overhead Costs) – payment of which CM Construction Fee is strictly limited
proportionately at any given time to the percentage of CM’s actual progress in
completion of the Work. The amount stated in the information preceding Article
I for the CM Construction Fee may, in the discretion of ADR, be adjusted for
inclusion in the GMP Change Order where material changes in Scope of Work,
Cost of the Work, or Contract Time are evident to ADR at the time of execution
of the GMP Change Order.
e.
CM Construction Overhead Costs. The amount indicated in the information
preceding Article I for CM Construction Overhead Costs is the maximum
amount that CM will be entitled (exclusive of CM Construction Fee) for
reimbursement for all temporary facilities, Project Administration, and other
General Conditions and overhead costs and expenses as indicated in ¶ V(B)(2)(b)
and in Supplement O (and as further limited therein). The amount stated in the
information preceding Article I for the CM Construction Overhead Costs may, in
the discretion of ADR, be adjusted for inclusion in the GMP Change Order where
material changes in Scope of Work, Cost of the Work, or Contract Time are
evident to ADR at the time of execution of the GMP Change Order.
f.
CM Contingency Account. Amount set aside by ADR at the time of the GMP
Change Order (and/or upon ADR approval where appropriate at the time of
execution of Component Change Orders) for potential reallocation to Cost of the
Work as set forth in ¶ V(B)(4)(d).
g.
Subcontract Costs are the total amount to be paid without further mark-up to
CM as part of the Cost of the Work for Subcontractors’ performance of their
respective portions of the Work, which Subcontract Costs shall include all labor,
materials, equipment, administration, supervision, Subcontract-specific permits,
inspections, Subcontractor overhead and profit, and all other Subcontractspecific costs or expenses incurred in performance of the Subcontractor’s
respective Scope of Work.
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h.
GMP Change Order is the Change Order establishing the GMP and authorizing
CM to commence construction of the Work as indicated in the Contract
Documents. The GMP Change Order shall be executed in a form issued by ADR
which will be substantially similar to that supplied as Supplement B1. Unless
otherwise expressly stated in the GMP Change Order, all prior Component
Change Orders (and their related Component Change Order Documents, as
amended) are merged into the GMP Change Order. Preconstruction Services
conclude upon UGAA’s execution of the GMP Change Order.
i.
Component. A Component is an element (or assembly of elements) of the Work
for which Design Professional or ADR has prepared or segregated Construction
Documents as a discrete package to permit advance procurement and
commencement of construction of the Work described in Component
Construction Documents for that element or assembly.
j.
Component Change Orders are those authorizing the CM to proceed to
construct a given Component pursuant to specific Component Construction
Documents. Component Change Orders shall be executed in a form issued by
ADR, which will be substantially similar to that supplied as Supplement B.
k.
Component Construction Documents are a subset of Contract Documents
issued by the Design Professional or ADR describing the Scope of Work to be
performed specific to a Component Change Order.
l.
GMP Construction Documents are the Construction Documents issued by the
Design Professional indicating the Scope of Work to be performed pursuant to
the GMP Change Order – as listed or indexed as part of Supplement A (as
Supplement A is amended to reflect the GMP Change Order and subsequent
Change Orders (where applicable)). Upon execution of the GMP Change Order,
general references herein to “Construction Documents” shall be deemed to refer
GMP Construction Documents as indicated in the GMP Change Order (and those
incorporated in duly executed Change Orders thereafter).
m.
Application of CM Agreement terms and conditions. All terms and conditions
of this Agreement shall apply to Preconstruction Services, Component Change
Order Work, and GMP Change Order Work.
n.
Self-performed Work is Work that is performed by CM’s own forces (with
advance written approval of ADR), the cost of which is determined and limited
by ¶ III(J)(10) and as otherwise set forth herein. Each element of Self-performed
Work shall be listed as a line-item in the original Schedule of Values and in those
subsequently approved and incorporated in Payment Applications.
D.
Headings and titles. Headings and titles used herein are provided primarily for practical
graphic reference, and shall not be construed to conflict with, or limit, the specific language in
the text that they precede.
E.
Capitalized terms. Terms that are capitalized when capitalization is not required under
commonly accepted grammatical rules shall be deemed special terms, the meanings of which
are to be drawn primarily from their context within this Agreement.
F.
Supplements. “Supplements” referred to are those attached to this Agreement, labeled as
Supplements A through T inclusive. Unless otherwise limited herein, Supplements shall be
deemed to be incorporated by reference in their entirety as if set forth fully herein. Forms
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included in Supplements may be modified by UGAA by Change Order as necessary during the
course of the Work and the Project to reflect Project-specific information or circumstances, or
changes in the Law.
G.
Law governing. This Agreement shall be construed in accordance with the Laws of the State of
Georgia and with any preempting, superior, or otherwise applicable federal law.
H.
Agreement binding. This Agreement is binding upon CM and upon its officers, directors,
shareholders, members, owners, managers, employees, partners, limited partners, agents,
insurers, sureties, successors in interest, and any parent and subsidiary corporations and other
related entities and persons.
I.
No nonparty rights against UGAA. Nothing in this Agreement shall be deemed to create a
right or cause of action in favor of any nonparty (including without limitation Subcontractors of
any tier) against UGAA, UGA, or the Board of Regents; nor shall any other person or entity be
deemed to be an intended third-party beneficiary of this Agreement – except that UGA and the
Board of Regents are intended third-party beneficiaries of this Agreement, and UGAA, UGA,
and the Board of Regents shall be deemed intended third-party beneficiaries of all Projectrelated Subcontracts of any tier. Nothing herein shall operate as a restriction or limit on the
relationships between UGAA and either UGA or the Board of Regents.
J.
Independent contractor. CM is engaged as an independent contractor. CM is not a joint
venturer, partner, employee, agent, or member of or with UGAA, UGA, or the Board of
Regents. CM has no authority to enter into any contract in the name of UGAA, UGA, or the
Board of Regents or to bind any of them in any way not expressly provided herein.
K.
Design Professional not an agent of UGAA. Design Professional is not an agent of UGAA,
UGA, or the Board of Regents; and Design Professional is not authorized to bind any of them or
to modify the terms of this Agreement in any way not expressly provided herein.
L.
No waiver or estoppel. By declining or failing to exercise or assert any right, remedy, or claim it
has or may have in one instance, neither Party waives its right, upon notice, to subsequently
exercise that right, remedy, or claim in other, even similar or related, instances. No act or failure
to act by either Party or any of its officers, members, employees, agents, other representatives,
or affiliated entities shall serve to modify this Agreement. If the Work begins or continues in the
absence of CM’s complete compliance with all requirements of this Agreement, the Board of
Regents, UGA, and UGAA each reserve their respective rights to subsequently (and without
further notice) enforce those requirements, waiving none of them. No delay or abeyance by
UGAA, UGA, or the Board of Regents in enforcement of the terms herein or in obtaining relief
to which they may be entitled shall relieve CM of any indemnity, insurance, or other contractual
obligation established herein or by Law.
M.
Judicial reformation. If a court construing this Agreement as to these Parties on this Project rules
that one or more of its terms are unenforceable, the unenforceable term shall be deemed
stricken, and the remaining terms construed to give effect to each of them and to the remaining
Agreement as a whole.
N.
Conditions precedent. The term “condition precedent” shall mean a condition, occurrence, or
event stated that must occur or be satisfied before UGAA is obligated to pay or act otherwise.
O.
Assignment; name change. This Agreement is personal in nature. Neither this Agreement nor
CM’s obligations established in it may be assigned by CM to any other person or entity. UGAA
may assign this Agreement and/or its obligations and interests hereunder in any lawful way.
CM shall notify UGAA in writing of any name change within five days of the change.
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P.
Survival. In addition to others noted herein, CM’s obligations that survive termination of this
Agreement (and/or the completion of the Work) include those that relate to: payments to
Subcontractors; correction of Defective Work; payments and repayments to UGAA; assignment
of Subcontracts to UGAA; audits, financial reporting, record keeping, and accounting; safety;
stabilization of the Work; warranties; certifications; indemnities; insurance; Performance and
Payment Bonds; dispute resolution; duty to discharge liens; confidentiality; intellectual
property; procurement, posting, and transmittal of notices, demands, and claims; Hazardous
Material; environmental protection; payment of taxes; labor and employment obligations; and
any other obligations and duties of the CM, the survival of which are needed to give continuing
effect to this Agreement.
Q.
Contract Documents. Upon UGAA’s execution of the GMP Change Order, general references
herein to “Contract Documents” shall be deemed to refer to Contract Documents as indicated in
the GMP Change Order, as well as original Contract Documents and Component Construction
Documents (as amended) subsumed into the GMP Change Order, and those Contract
Documents attached to and incorporated in duly executed subsequent Change Orders.
Documents incorporated by reference shall be deemed to be incorporated as part of this
Agreement as if set forth fully herein. In addition, where specific portions or sections of
industry or governmental standards or codes are referenced herein as guiding, binding, or
authoritative in the Contract Documents, those referenced portions and sections shall be
deemed to be incorporated by reference in the part of this Agreement in which they are
referenced.
1.
Contract Documents staged and iterative. The Parties acknowledge that the Contract
Documents, including the Construction Documents, Component Construction
Documents, and GMP Construction Documents will be prepared and updated in a
phased, iterative manner – in order to facilitate Component Change Orders and other
staged, fast-track, or phased design and construction – all in order to complete the Work
within the GMP and the Contract Time. Therefore: (a) Contract Documents, as indicated
in this paragraph and those listed in Supplement A (and as Supplement A is amended
upon execution of Component Change Orders, the GMP Change Order, and/or
subsequent Change Orders (where applicable)) will be prepared in stages and updated
as needed to make that possible; and (b) CM acknowledges that it is the intention of
UGAA that the Construction Documents, Component Construction Documents, and
GMP Construction Documents shall be deemed to require CM’s provision of all items,
systems, assemblies, materials, and labor necessary for proper execution and full and
Final Completion of the Work – and for its completed use in the manner intended by
UGAA – and all within the GMP.
2.
Contract Documents complementary. What is required by one Contract Document is
binding as if required by all. Notwithstanding the appearance of subcontract-specific
labels and language in the various divisions of the Specifications and in other
Construction Documents, CM remains responsible to UGAA for full performance of all
the Work in accordance with the Contract Documents.
3.
Order of precedence. Conflicts among the Contract Documents shall be resolved by
applying the following, in descending order of precedence: (a) duly executed Change
Orders to this Agreement, including changes to Supplement A (as Supplement A is
amended upon execution of Component Change Orders, the GMP Change Order, and
subsequent Change Orders (where applicable)); (b) this Agreement and Supplements to
it; (c) the FOR CONSTRUCTION Construction Drawings issued and certified by Design
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Professional; (d) the Construction Specifications issued and certified by Design
Professional; (e) specific documents, statutes, and regulations incorporated by express
reference in this Agreement; and (f) other documents, statutes, and regulations expressly
referred to in this Agreement (or in the Contract Documents by specific reference) and
expressly indicated in this Agreement (or in the Construction Documents) to be
controlling only with respect to specific elements or categories of the Work (e.g., NFPA §
241 in ¶ XV(H)(2)). If language set forth in a document incorporated herein conflicts
with that set forth in this Agreement, the language of this Agreement shall prevail.
Where in conflict, large-scale drawings are given preference over small-scale drawings.
Drawings are not to be scaled for dimensions. If questions on dimensions exist, it is
CM’s sole obligation to seek guidance from Design Professional and/or the ADR – using
the RFI process – to determine the dimensional requirement.
R.
Predominant purpose. The predominant purpose of this Agreement is the performance of
Work and provision of labor services – as opposed to provision of goods.
S.
Limitations on actions. Statutes of limitation and repose on any cause of action by either Party
to this Agreement shall commence to run on the Realized Date of Substantial Completion or
upon termination of this Agreement by UGAA, whichever occurs earlier.
__
ARTICLE III – CM’s OBLIGATIONS, DUTIES, AND WARRANTIES
A.
Safety. CM’s primary duty is to perform the Work safely, adhering to all Laws. That duty is
nondelegable; and it is not shared with UGAA, UGA, the Board of Regents, the ADR, Design
Professional, or others – except that CM must, by written Subcontract, impose a similar and
coextensive duty upon each Subcontractor with regard to its respective portion of the Work.
1.
Precautions. CM shall take all precautions necessary for the safety of, and shall provide
reasonable protection to prevent damage, injury, or loss to: (a) employees performing
the Work and other persons, including without limitation, the general public, who may
be affected thereby; (b) the Work and materials and equipment to be incorporated
therein, whether in storage on or off the site, under care, custody, or control of CM or
Subcontractors of any tier; and (c) other property at or adjacent thereto, such as trees,
earthwork, shrubs, lawns, walks, pavement, roadways, structures, and utilities not
designated for removal, relocation, replacement, or other modification as part of the
Work. In addition to all other obligations of indemnity, etc., CM shall make good all
damage, loss, or injury resulting from its failure to take the precautions required herein.
2.
Correction of unsafe conditions. If CM observes an unsafe condition or activity on-site,
property damage, or personal injury, it shall: (a) stop Work in areas potentially impacted
or endangered by it; (b) remove workers from the affected area, securing immediate
medical and emergency assistance where persons are injured or property is further
threatened; (c) post and secure the unsafe area; (d) stabilize the condition; and (e)
immediately notify the ADR by e-mail (and telephone if jeopardy to life or property is
involved), detailing: (i) the unsafe condition; (ii) what Work was stopped; (iii) which
workers were removed from the area, when, and under what circumstances; (iv)
whether and how the unsafe condition was stabilized and secured; (v) known or
suspected causes of the condition; and (vi) recommended alternative remedies or means
to correct it. CM shall continually update the ADR as to: (A) corrective measures taken;
(B) which Laws and contract provisions were affected; (C) which emergency, health,
medical, law enforcement, or other officials or facilities, if any, were notified, and how
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they responded; (D) whether citations were issued, fines imposed, or other
governmental action was taken or threatened; (E) how and when correction will be
completed and Work resumed; (F) how the condition was ultimately corrected or
rendered safe; and (G) what adjustments, if any, are needed to conform to the Project
Schedule and to complete the Work within the Contract Time.
3.
Duty to report safety-related occurrences or criminal conduct. In addition to taking any
other steps required herein or under Law, CM shall adhere to all local, state, and federal
Laws requiring the reporting of accidents, death, personal injury, property damage, or
criminal conduct related to the Property, the Project, or the Work; and shall timely
report to the appropriate governmental agencies or officials all such accidents, death,
personal injury, property damage, criminal conduct, and any other occurrences and
incidents to applicable law enforcement, unit of government, and insurers (so as to
preserve rights of coverage for all concerned) – and shall concurrently and formally
notify ADR of same. Nothing in this Agreement shall be construed to relieve CM of
duties imposed by applicable Laws in this regard.
4.
Essential communications on-site. CM and Subcontractors shall take all steps necessary
to assure that, at all times, every person employed by them at any tier on-site has the
ability to see, recognize, and understand: (a) the task assigned to them; (b) all hazard
warnings and labels published in English; (c) restricted areas; and (d) audible or visual
safety-related warning signals and announcements in English.
5.
Trenches. CM shall adhere to all safety-related federal, state, and local Laws and
regulations pertaining to trenches and other excavations, including excavation safety
standards published in the Code of Federal Regulations, 29 CFR 1926 (Subpart P), as that
standard may be amended from time-to-time. CM shall permit no person to work in or
near a trench unless it is: (a) braced in compliance with the above-noted regulations and
applicable Laws; and (b) CM’s Superintendent or other specially trained safety
supervisor is continually present at the excavation or trench, itself.
6.
CM’s responsibility for site safety. Safety is the exclusive responsibility of CM. CM
shall be solely responsible for complete compliance with rules and regulations of the
Occupational Safety and Health Act and other state, federal, and local Laws pertaining
to safety. CM’s provision of safety-related information to UGAA shall not be construed
as UGAA’s approval or review of information provided; nor shall it impose any safetyrelated duty or obligation upon UGAA.
7.
Inadvertent access. CM shall provide all safety barriers, signage, fences, and barricades
necessary to: (a) protect persons on the Project site and those entering it; (b) prevent
inadvertent or unauthorized entry by the public onto the Project site and any Work
Area; and (c) designate the Work Area as a “Danger” area to warn and protect person
from any hazards which may occur during the course of the Work. The Danger area
shall be the area immediately surrounding the location where the site is disturbed or
where Work is underway. The exact location of barriers shall be placed by CM and
coordinated with ADR before commencement of the Work. CM shall erect a fence to
protect the limits of construction and to secure materials kept on-site – or otherwise
secure the materials. Costs associated with the foregoing shall be deemed to be part of
the CM Construction Overhead Costs within the GMP.
8.
Fire prevention and other hazard-related issues. CM shall take reasonable and
adequate precautions to protect the Work against damage by fire and smoke.
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9.
a.
No open fires or burning of structures or materials is permitted.
b.
In addition to other measures required to satisfy the obligations set forth in this ¶
III(A), CM shall, at a minimum, perform the following safety measures: (i)
provide fire extinguishers or fire hoses in readily accessible locations; (ii)
periodically inspect fire extinguishers, removed discharged extinguishers
immediately, and replace with new or recharged extinguishers; (iii) keep fire
extinguishers or fire hoses within five feet of any welding or open flame
operations; (iv) remove oil-soaked and paint-soaked materials, including paper
and rags, from the site daily, and more frequently as necessary to eliminate
danger of fire; and (v) prohibit workers from smoking on-site.
c.
CM shall adhere to all state federal and local Laws regarding to open fires, fire
prevention, and fire control within or adjacent to the Project Work Area. No use
or storage of explosives or Hazardous Materials or equipment of unusual
methods shall be permitted without the express, written consent of the ADR and
UGA. For purposes of this subparagraph, Hazardous Materials shall include
those falling within the definitions provided in ¶ XV(G)(1) herein.
Prohibition of obstructions. CM shall not, for any reason or for any length of time,
obstruct fire exits, corridors, or any other means of egress from any structure or area of
refuge in or near used or occupied buildings.
B.
Products and substitutions. When a material, article, or piece of equipment is identified in the
approved FOR CONSTRUCTION Construction Documents by reference to a particular
manufacturer or vendor, trade name, product number, or other specification, CM shall provide
the specified product. If CM proposes a substitution, it must submit its proposal in the form of a
PCO (as provided in Article VIII) and must include cost-related information and any other
information pertinent to the UGAA decision as to whether to allow the substitution.
Substitutions agreed before execution of this Agreement shall be included in an addendum,
which shall expressly be incorporated into, and listed among, the Contract Documents listed in
Supplement A. Substitutions agreed after execution of this Agreement shall be set forth in an
ITC or Change Order, as appropriate. By proposing a substitution, CM warrants that the quality
of the proposed assembly will not be reduced from that originally specified, and that, if the
substitution is approved, all warranty requirements herein and as provided with the originally
specified product will continue to apply to the substituted product or assembly.
C.
Standards. All materials, equipment, or workmanship specified by reference to any number,
symbol, or title of any ASTM, ANSI, federal, industry, or government agency standard
specification shall comply with the version of that specification in effect on the Effective Date of
this Agreement.
D.
Standard of care. Without exception, CM shall perform the Work in conformance with the
requirements set forth in the Contract Documents and in a workmanlike manner that meets the
standard of care required of a diligent and conscientious construction manager performing
work on projects of similar nature and complexity to this Project in the State of Georgia
(“Standard of Care”). No act, directive, or communication from Design Professional, the ADR,
UGAA, UGA, the Board of Regents, or any other person or entity shall relieve the CM of this
obligation or diminish the requisite Standard of Care to be applied.
E.
Research and coordination; utilities. CM accepts an affirmative obligation to seek out and
obtain information from UGAA, utilities, governmental agencies, authorities, and officials, and
others possessing information needed to: (i) determine the adequacy of available utility service,
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limits and restrictions on construction and use of the subject Property or Project site, and the
existing conditions impacting the Project; and (ii) assure that the Work complies with the
Contract Documents. CM shall also confirm the information contained in the following two
subparagraphs. Although, all such inquiry and confirmation must be complete before CM begins
the Work, this duty of inquiry and confirmation is ongoing throughout the performance of the
Work. If CM believes that UGAA has (or must provide) information not otherwise available to
the CM through the foregoing inquiry, and that information is essential to CM’s performance of
the Work, CM shall request that information from the ADR in a written RFI before execution of
this Agreement or at the earliest possible time thereafter, but in no case before it performs Work
that depends upon the CM’s obtaining the information. The absence of such a request from CM
shall be deemed to indicate CM’s representation that it already possesses sufficient information
to competently and completely perform the Work.
1.
Utilities.
a.
Utility owners and contacts. Among those entities that may be sources of
information to CM are the following owners of utilities who, upon occasion,
provide utility services to UGA or to UGAA:
Water:
ACC Public Utilities or UGA
Sanitary Sewer:
ACC Public Utilities or UGA
Septic Sanitary System:
UGA
Storm Sewer:
UGA
Electric Power:
Natural Gas:
Georgia Power Company or UGA
Atlanta Gas Light Company or UGA
Steam:
UGA
Chilled Water:
UGA
Data Communications:
Voice Communications:
Television Cable:
Fire Alarm Systems:
Security & Access
Systems:
Irrigation:
Enterprise Information Technology Services (EITS)
AT&T or EITS
Charter Communications or EITS
UGA (maintenance contract with Fire Protection
Associates)
UGA Public Safety Division
UGA Facilities Management Division
Especially for Projects remote from Athens, Georgia, but in all cases, CM shall
determine the identity of person to contact at all current utility providers to the
Project.
b.
Locator notification. CM’s attention is directed to the fact that there are active
utilities within the Work Area. Utilities are owned by UGA and public utility
companies. Seventy-two hours in advance of any digging, CM shall contact:
i.
Public Underground Utility Locator Service at 1-800-282-7411 or 811 as
required by Georgia State Law. CM shall retain routine locate number
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and email this information to utilities@uga.edu, ADR, and UGA’s
representative in order for the balance of utility locate requests to be
initiated.
ii.
Enterprise Information Technology Services (EITS) Network Operations
Center at (706) 542-3140.
iii.
UGA Facilities Management Division at (706) 542-7450 to locate irrigation
lines.
CM shall be liable for all repair costs and other damages incurred if it fails to
timely notify utility locators as described above and/or excavates or digs before
locators have marked the Property affected. In addition, any utility line or service
damaged by CM (or its Subcontractors of any tier) that was properly marked or
identified by UGAA, UGA, or utility locator shall be repaired by CM at its own
expense. In the event the owner of the utility elects to make the repairs with its
own work force, CM shall reimburse the owner of the utility for the cost of
repairs and indemnify the Indemnitees identified in ¶ XI(B) for all damages,
losses, claims, costs or demands of any kind related to the utility damage. In no
case can funds reallocated from the CM Contingency Account be used to pay for
costs of repairs, damages, losses, claims, etc. incurred due to CM’s failure to
comply with this provision.
2.
c.
Connections to existing utilities. All utility Work involving connections to
existing utility systems (including but not limited to: electrical, communications,
water, gas, steam, chilled water, storm water & sanitary systems) shall be
coordinated with UGAA and UGA at least seventy-two hours in advance.
d.
Effect on existing facilities. CM shall notify ADR before any proposed
shutdown, outage, or Work of any nature that will interrupt or disturb any
building or utility system or equipment served by that system. Shutdowns,
where unavoidable, shall be scheduled at the convenience of UGAA and UGA.
e.
Utility assistance. CM shall advise and assist UGAA and Design Professional
with the preparation of all applications for water, sewer, electrical, gas,
telephone, and other utility services necessary for the completion and operation
of the Project.
Fire alarm and fire sprinkler deactivation.
a.
Four hours or less at one time. If the Project has an existing fire alarm system or
fire sprinkler system that will be encountered during the Work that will from
time to time require temporary deactivation (for four hours or less at one time),
CM shall contact ADR a minimum of seventy-two hours in advance to
coordinate the deactivation request. CM shall also make the following
notifications: (i) UGA Environmental Safety Division, Fire Safety ((706) 369-5706);
(ii) UGA Police Department ((706) 542-5813); and (iii) UGA fire alarm monitoring
company, Fire Protection Associates ((706) 548-8659); and (iv) UGA specific
facility affected.
b.
More than four hours at one time. If a sprinkler or fire alarm system on the UGA
campus is out of service for more than four hours, a fire watch must be
implemented according to the following procedures:
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i.
Notifications. (A) UGA Environmental Safety Division, Fire Safety ((706)
369-5706); (B) UGA Police Department ((706) 542-5813); and (C) UGA fire
alarm monitoring company, Fire Protection Associates ((706) 548-8659);
and (D) UGA specific facility affected.
ii.
Fire watch duties.
A.
Person(s) on fire watch duty should not have any other
responsibility during the time the fire watch is in effect and must
keep a cell phone in his/her possession at all times during the fire
watch;
B.
Patrol the entire area affected by the service outage every 30
minutes and look for any signs of fire, smoke, and any activities
that could create a fire;
C.
Keep a log of all fire watch patrols;
D.
Maintain fire watch for one hour beyond the last time that
welding or other high-heat operations occurred;
E.
If a fire is discovered: (1) activate the building alarm system if in
service; (2) call 911 to report the fire; and (3) if the building alarm
system is out of service, ask the campus police or other first
responders to assist in evacuation of the building; and
F.
Once the need for a temporary fire watch has passed and the fire
protection system has been fully restored, the person on fire watch
duty will cancel the fire watch by contacting the ADR, UGA
Environmental Safety Department, UGA Police Department, UGA
fire alarm monitoring company, and the UGA-specific facility that
is affected by the fire watch.
iii.
All costs associated with the fire watch shall be included in the CM
Construction Overhead Costs within the GMP.
iv.
To the extent that this Agreement contains other fire-watch provisions, in
addition to the foregoing, the most rigorous and supportive of safety will
continue to apply; and none of either are waived or released.
3.
Telecommunications cable. The current version of the EITS “The University of Georgia
Telecommunications Design Guide and Standards” can be located at:
http://eits.uga.edu/ExpressionEngine/files/documents/UGA_Cabling_Standards.pdf.
CM shall contact ADR to schedule a meeting with EITS and the appropriate
Subcontractors before installing telecommunications wire and cable or related
infrastructure to ensure compliance.
4.
Utilities. CM shall confirm in advance the availability of utilities needed for the Project.
The GMP takes into account extension to the Project site of any utility of different
pressure, capacity, type, etc. required by CM that is not available on-site. Certain
utilities, if owned and operated by UGA, required for Work to be performed hereunder
shall be furnished by UGAA at CM’s expense. However, these utilities shall be
furnished at the point and in the capacity that they are available adjacent to the
construction site. Any utility of different pressure, capacity, type, etc. required by CM
that is not available within the area shall be arranged for by CM at its own expense. Any
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expense involved to CM in extending the utilities from the present location to the point
required shall be at CM’s expense and included in the Cost of the Work.
5.
F.
Modifications. As part of the Cost of the Work, CM shall adjust all existing and new
utility structures (manholes, valve boxes, etc.) to meet new grades as required to
complete the Project.
Deliverable Project Information. Any and all Project Information created or prepared by CM
shall be provided by CM to the ADR in both paper and digital (.pdf and native) electronic
formats. References herein to “read-only” documents shall mean documents prepared using the
current version of Adobe “.pdf” software – in .pdf format. Any document that CM (or a
Subcontractor of any tier) is required to supply or provide to ADR or UGAA shall be provided
(and delivered or transmitted) in both electronic and print form. Unless another format is
approved in advance in writing, digital copies of documents shall be provided to the ADR in
.pdf format and in the following formats:
Drawings:
.dwg format (by AutoCAD)
Photographs:
.jpg format
Textual files:
.doc or .docx format (by Microsoft) and Adobe .pdf
Presentation materials:
Spreadsheets:
Other graphical materials:
Other materials:
.ppt (by Microsoft)
.xls format (by Microsoft)
Adobe Illustrator, Photoshop, or In-Design
In native format approved by ADR.
CM’s cost to procure, license, maintain, and use the requisite software is included in the CM
Construction Fee, and shall not be the subject of a claim for reimbursement or additional
compensation, except to the extent that UGAA gives prior written approval to include such
costs in the Cost of the Work within the GMP. UGAA’s receipt of Project Information in the
formats specified is a condition precedent to UGAA’s obligation to pay.
G.
Obligation to discharge liens. CM acknowledges that, pursuant to Law, the subject Property
and Project improvements hereunder are public property of the State of Georgia, and, thus, are
not subject to lien or levy. Within three days of learning of or receiving notice that a claim of
lien has been filed against the Project, the Property, UGAA, UGA, or the Board of Regents by
persons or entities who provided Work, labor, material, or services of any kind on the Project at
the instance of CM or a Subcontractor of any tier, CM must cause that lien to be immediately
dissolved by a statutory bond or otherwise fully discharged and cancelled as of record in the
office of the clerk of the Superior Court in the county in which the lien was filed. CM’s timely
satisfaction of this obligation (without regard to whether the lien is allegedly based on facts or is
otherwise lawful) is a condition precedent to UGAA’s obligation to pay.
H.
Payment of taxes. CM is solely responsible for paying all federal, state, and local taxes
(including but not limited to, sales and use taxes) pertaining to the Work and this Agreement, as
well as employment taxes for its employees, compensation for payment of taxes being included
within the GMP. CM shall indemnify, defend, and hold harmless UGAA and UGAA
Indemnitees as indicated in ¶ XI(B) (and shall indemnify and hold harmless the State
Indemnitees as indicated in ¶ XI(B)) for all claims, demands, and other liability arising from
failure by CM or Subcontractors of any tier to pay taxes.
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I.
CM’s representations and warranties. In addition to other representations and warranties
provided by CM herein, and as an inducement to UGAA to enter this Agreement, CM further
warrants and represents the following:
1.
General warranties. CM warrants that materials and equipment provided will be new,
of good quality, free from defects, and conformant in every respect with the
requirements of the Contract Documents. In addition to other warranties provided
herein and elsewhere in the Contract Documents, CM shall provide a five-year warranty
on roofs and walls in the forms supplied at Supplement M, or such other form as is
requested by ADR at the time of execution of this Agreement.
2.
Competence and licensing. CM (and its Subcontractors of all tiers) possess and will
continually maintain all licenses, registrations, certifications, tax bonds, code compliance
bonds, other Work-specific bonds, certificates of authority, and other approvals required
by governmental authorities and agencies having jurisdiction over the Work, the Project,
CM, and its Subcontractors throughout the performance of the Work and the entire
course of the Project, making proof thereof available at all times to UGAA upon request.
3.
Qualifications and commitment. CM: (a) is sufficiently qualified and experienced to
competently and efficiently perform its obligations under this Agreement in accordance
with the requisite Standard of Care; (b) is a sophisticated business entity, experienced
and regularly involved in the application of skill and knowledge to perform Work of the
type required on this Project; (c) will, at all times, supply an appropriate number of
skilled, experienced, and appropriately licensed construction personnel so as to
proficiently and timely perform the Work in a manner that complies with the Project
Schedule, all applicable Laws, and the Contract Documents; and (d) will impose and
enforce its obligations hereunder upon its Subcontractors for their respective parts of the
Work.
4.
Fitness. CM warrants that the Work will be fit for UGAA’s intended purpose and
consistent with the Contract Documents and that materials delivered will be
merchantable and fit for UGAA’s intended purpose.
5.
Insurance. CM has provided, and will continue to provide, insurance coverage as
required in Article XII and by Law, and will substantiate that provision by supplying to
the ADR the requisite documentary proof of coverage: (a) upon execution of this
Agreement; (b) between thirty and sixty days in advance of each policy’s renewal date;
and (c) at other times when requested by the ADR.
6.
Acceptance of Project conditions. CM: (a) has visited the site; (b) has thoroughly
reviewed the Contract Documents and the visible or apparent existing conditions onsite; (c) is aware of the conditions and limitations relevant to the Work and the site; (d) if
the Work affects an existing structure or improvements, has thoroughly reviewed and
inspected same; and (e) has determined that the above-noted Stated Cost Limitation and
Contract Time are reasonable and sufficient to allow its safe, timely, and complete
performance of the Work in accordance with the terms of this Agreement and consistent
with the requisite Standard of Care.
7.
Title. Title to all Work, materials, and improvements shall pass to the Board of Regents
of the University System of Georgia without encumbrance or liens of any kind upon
delivery to the site or, in the case of materials stored off-site in accordance with ¶
V(B)(4)(c), upon their delivery to the approved storage facility.
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8.
CM in position of trust. CM hereby accepts its role as a fiduciary of UGAA with
responsibility and duties owing to UGAA of good faith, trust, confidence, and candor.
CM agrees that it will exercise a high standard of care in managing money and property
with respect to UGAA and the Project. In that regard, CM will, at all times, act in the
best interests of UGAA and in furtherance of timely completion of the Work. UGAA is
entitled to rely on truthfulness, accuracy, and completeness of CM’s representations,
warranties, certifications, notices, applications, and other communications. CM will pay
all amounts due to Subcontractors as they become due. CM acknowledges that it
occupies a position of trust and confidence with regard to the Project, and that UGAA
depends upon CM’s conscientious performance and care for UGAA’s interests, and
upon CM’s prompt payment to Subcontractors of all amounts as they become due.
Funds paid by UGAA for Work performed by Subcontractors are accepted by CM in
trust. While CM’s express fiduciary obligations do not extend to require its segregation
or investment of funds paid to it for Subcontractors’ Work, CM agrees that its failure to
timely pay Subcontractors in accordance with this Agreement would be an unlawful,
damaging, and material breach of this Agreement and of CM’s fiduciary duties to
UGAA.
9.
Likelihood of damages to UGAA upon breach. CM acknowledges that if CM does not
fully and timely perform, UGAA will sustain damages, including loss of income, profit,
business opportunities, competitive advantage, and/or other significant economic losses
– and that UGAA is entitled to recover from CM attorneys’ fees and other damages,
costs, and expenses incurred by UGAA as a result of CM’s failure to perform or CM’s
breach of this Agreement.
10.
Financial solvency. CM represents that it is financially solvent and able to pay its debts
as they mature; that it possesses sufficient working capital to complete the Work and
perform its obligations under this Agreement; and that no funds paid to CM by UGAA
on this Project will be applied to any use that is inconsistent with the terms of this
Agreement.
11.
Legality of employment. CM will take steps necessary to assure that all persons
performing Work on the Project (including without limitation Subcontractors of any tier
and their employees) are properly trained and legally eligible for employment within
the United States – and as otherwise required by Laws applicable to the Work, the
Project, the Parties, and the Property, including state law governing employment and
reporting thereof. CM shall cooperate with and participate in all statutorily required
worker identification and verification programs, including but not limited to the federal
on-line worker verification programs. CM shall include an express provision
commensurate with the foregoing in all Subcontracts.
12.
Supervision and conduct. CM shall schedule and control all persons and entities
performing Work on-site. In the absence of express written permission to the contrary
issued by the ADR, CM, Subcontractors, and/or those employed by them shall not use
UGA or UGAA toilet facilities nor shall they track dirt or debris of any kind into existing
structures and facilities. Violent or threatening behavior, smoking in UGAA or UGA
buildings or facilities or within the subject Project structure, profanity, inappropriate
dress, lewd or suggestive interaction (or attempted interaction) with students or with
UGA or UGAA personnel, possession of alcohol, firearms, or illicit drugs, or other
inappropriate conduct is not permitted. UGAA reserves the right to permanently eject
from the Property (and from the UGA Campus and any Board of Regents property) CM,
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any Subcontractor, or any other person engaged in such conduct if, in UGAA’s sole
judgment and discretion, that person exhibits such conduct. In addition to any other
reporting requirement imposed by Law or regulation, CM shall both immediately and
formally notify the ADR in writing of all incidents or occurrences involving death,
personal injury, fire arms and weapons, and/or threats made on persons or the Work, as
well as any communications with public safety or law enforcement officials involving
the Project – detailing the incident, its status, and its current outcome.
13.
J.
Materiality of representations. CM acknowledges and agrees that its satisfaction of each
of the preceding representations and warranties is a material obligation of CM and a
condition precedent to UGAA’s obligation to pay.
Means and methods of construction. CM is solely responsible for the means, methods,
techniques, sequences, and procedures for safely performing the Work and for coordinating its
Work with others (including, without limitation, governmental officials, Subcontractors of any
tier, and Separate Contractors) – and shall impose, by written subcontract, similar responsibility
upon its Subcontractors of any tier for their respective portions of the Work. That imposition
shall not, however, relieve CM of its obligations under this paragraph. No act, communication,
or representation of UGAA (or any other person) shall relieve CM of this obligation or its
obligations to competently and timely perform the Work according to this Agreement, the
requisite Standard of Care, and applicable Laws. CM shall supervise and direct the Work, using
its best skill and attention.
1.
CM’s examination of Contract Documents. Before signing PCO’s, Component Change
Orders, the GMP Change Order, or other Change Orders, CM shall thoroughly examine
the site and existing structures (if any) affected by the Work, comparing them to the
Contract Documents. If CM believes that additional information is needed to properly
perform its obligations, CM shall, before signing this Agreement, request the ADR to
provide that information, using a form acceptable to the ADR. CM’s execution of the
GMP Change Order, Component Change Orders, or other Change Orders under Article
VIII shall be deemed to be its representation that the Contract Documents contain
sufficient information for CM to perform the Work. Before commencing construction of
the Work, CM shall review and compare the Contract Documents, and shall
immediately inform ADR and Design Professional in writing of any inconsistencies,
conflicts, omissions, or errors observed in them, as well as any aspects of them that CM
believes may not comply with applicable building codes and standards, or that may
otherwise negatively affect Work to be performed. CM’s execution of this Agreement
shall be deemed to be its representation that CM has diligently reviewed the Contract
Documents for these purposes.
2.
CM’s ongoing duty to investigate, examine, and compare. CM has an affirmative
obligation to continually investigate, review, examine, and compare existing conditions,
existing structures (if any are affected by, or involved with, the Work), Work-in-Place,
and the Contract Documents – and to timely report discovered conflicts to the ADR and
Design Professional. During construction, CM shall continually examine the Contract
Documents and shall observe, measure, analyze, and compare them to existing
conditions revealed (in the case of excavation and entire or partial demolition of
structures) and new Work-in-Place to ascertain whether the remaining Work can be
performed as indicated in the Contract Documents; and, if CM has reason to believe that
remaining Work cannot be performed as so indicated, it shall promptly give written
notice to the ADR and Design Professional of that opinion, and the basis for it.
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3.
Consequence of failure to report conflicts. Except for those professional design
responsibilities expressly delegated to CM in the Contract Documents, and to the extent
required to competently and safely perform and manage its means and methods of
construction, nothing in this paragraph shall be construed to impose on CM an
obligation to supply design services for which the judgment of a design professional
licensed as such by the State of Georgia is required. In addition to the other indemnityrelated obligations imposed hereunder, CM shall indemnify the UGAA Indemnitees and
State Indemnitees (as indicated in ¶ XI(B) herein) for damages, losses, and costs incurred
to the extent they could have been reduced or avoided by CM’s diligent and
conscientious performance of its examination, comparison, and reporting obligations
hereunder or by CM’s prompt disclosure to UGAA of known or suspected errors,
omissions, or other problems with the design or the Contract Documents. If CM knows
that the Work indicated in the Contract Documents varies from requirements of
applicable ordinances, rules, regulations, or other Laws, it shall promptly notify the
ADR and Design Professional in writing of that variance. If CM performs Work
knowing that the Work does not comply with applicable Laws or is otherwise defective,
CM shall bear all costs relating to or arising out of that performance and the requisite
corrections.
4.
Certified improvements survey. If required under ¶ I(Y), after foundations are staked,
but before concrete formwork is undertaken, CM shall provide a survey (prepared by a
licensed surveyor) indicating the staked location on-site and certifying that the building
improvements, as staked: (a) fall within the Property; (b) are located as indicated in the
Construction Documents; and (c) do not violate applicable set-backs, easements, and
other site restrictions indicated in the Construction Documents.
5.
Public notices and filings. CM shall, not later than fourteen days after the Effective Date
of this Agreement or before the First Payment Application is submitted (whichever is
earlier): (a) prepare and file with the clerk of the Superior Court of the county in which
the Project is located a statutory Notice of Commencement (in the form supplied as
Supplement K); and (b) obtain and post all Land Disturbance and NPDES permits. CM
shall, within five days of commencing Work on the Property (and continually, until
Final Completion), post in a protected and conspicuous place a copy of all employment
notices, permits, proof of insurance, the Notice of Commencement, and other documents
required by Law or this Agreement to be posted.
6.
CM’s use of site.
a.
Intermittent access. CM acknowledges that there are many times throughout the
course of the Project when portions of the Property and/or the Work Area may
not be accessible to CM due to various academic, athletic, construction, or other
activities on the UGA campus or Board of Regents property – not all of which are
knowable in advance. The Contract Time shall not be extended as a result of
those activities. CM shall coordinate its Work so as to not interfere with access to
and operation of UGA or UGAA facilities. In addition to the foregoing, CM shall
cease all Work commencing at 3:00 p.m. on the day before UGA home football
games; and Work shall not recommence until the next Work day following the
game. CM shall secure the Project site to prevent unauthorized access during
periods of cessation of Work.
b.
Hours of operation. CM shall adhere to all local and UGA codes, ordinances,
rules, and other Laws governing hours of construction operations, as well as to
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any further restrictions specified in the Contract Documents. UGA and/or
UGAA may occasionally further restrict hours of construction operations. CM
shall perform the Work during normal working hours, which are deemed to be
Monday through Friday, from 8:00 a.m. to 7:00 p.m., excluding New Years Day,
Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, and Christmas
Day (“holidays”). Work during other-than-normal times (e.g., weekends,
holidays, and after-hours) shall be coordinated with and subject to written
approval of UGAA, which approval can be withheld for any reason. A minimum
of seventy-two hours’ advance written notice is required for ADR to issue such
approval, if approval is otherwise justified.
c.
Noise. UGA and/or UGAA may restrict hours of noisy operations during the
course of the Work; and such restriction shall not be the basis of a change in
GMP or Contract Time. No radios, CD or MP3 players, ear phones, or other
audio entertainment devices shall be used on-site.
d.
Work Area. CM shall confine activities and operations to the Work Area
designated in the Contract Documents. If no Work Area is specifically indicated,
the Work Area shall be deemed to be confined to those areas of the Project site
needed to perform the Work, as approved in advance by the ADR.
e.
Protection of existing facilities and structures. Any marking of existing
facilities, surfaces, structures, landscape material, etc. by CM shall be temporary
in nature. No permanent spray paint or other marker devices shall be used. Any
modification of landscape material occurring in the process of performing the
Work shall be approved in advance in writing by the ADR, which approval can
be withheld for any reason. CM shall take all affirmative steps necessary to keep
roadways, busways, bikeways, sidewalks and other pedestrian paths, other
paved surfaces off-site, as well as walls and other vertical surfaces clear of dirt,
mud, waste, construction debris, etc. and keep them safe and operational during
the course of the Work. Paved and vertical surfaces installed as part of the Work
shall be protected from mud, staining, and other damage incurred during the
performance of the Work and until Final Completion and acceptance by UGAA.
CM shall instruct all employees and Subcontractors to prevent tracking dirt and
debris into existing buildings, the subject structure(s), and onto paved areas. CM
shall protect all Work, including but not limited to, excavations and trenches,
from rainwater, surface water, and back-up of drains and sewers. CM shall
furnish all labor, pumps, shoring, enclosures, and equipment necessary to
protect and to keep the Work, trenches, and excavations of all types free of water.
f.
Duty to protect.
i.
All existing landscape and hardscape, including but not be limited to,
buildings, curb and gutter, stairs, sidewalks, retaining walls, bus shelters,
roadways, parking lots, trees and shrubbery not specified for demolition
shall be protected during the course of the Work, and all damage to them
corrected at CM’s expense before Substantial Completion.
ii.
Where the Work involves new construction, CM has an absolute
nondelegable duty (and sole responsibility) to assure that the Work, as it
is installed, is and remains stable, supported, and incapable of, and
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unsusceptible to, collapse, fire, or other damage during the course of the
Work.
g.
iii.
Where the Work involves renovations or other modifications of existing
structure(s), CM has an absolute nondelegable duty (and sole
responsibility) to assure that both the existing structure(s) to remain and
the new Work are stable and supported as they are modified and/or
installed, as the case may be, and that both are incapable of, and
unsusceptible to, collapse, fire, or other damage during the course of the
Work. Portions of existing structure(s) to remain shall be protected by
CM as if they were new construction.
iv.
CM shall be solely responsible for continual provision of lateral support,
earthwork, bracing, and other means of protecting excavations on-site,
the Work, existing structures, as well as adjacent property and any public
or UGA streets, roads, or other public ways affected by the Work.
v.
CM shall make good any damage, injury, or loss as a result of failure to
stabilize, support, and protect existing structures to remain and/or new
Work-in-Place. CM shall, in addition to other indemnifications provided
for herein, indemnify UGAA, UGAA Indemnitees, and the State
Indemnitees, as identified in ¶ XI(B), if it fails in any way to do so.
vi.
All damaged and/or stained existing utility, structures, surfaces, and
paving and other hardscape shall be cleaned and repaired by CM. If
UGAA or UGA elects to make necessary repairs with its own workforce,
CM shall reimburse UGAA (or UGA, as the case may be) for all costs,
damages, and fees incurred. CM shall repair or replace damage as
required to return the affected utility, structure, surface, etc. to its original
state before applying for Final Payment.
vii.
CM shall repair sidewalks to result in complete panels as originally
scored and with concrete of a color matching tone, color, and texture.
viii.
CM shall protect all roof drainage systems during all Work or repairs
involving roof assemblies and systems. Where the Work involves
renovation of a structure, drainage assemblies and systems shall be
protected and shall remain operational throughout the course of the
Work. Protection shall include absolute prevention of foreign objects and
debris entering into any drainage pipe, fixture, or other vessel. If CM fails
in the foregoing obligation, it shall be held liable for all direct and indirect
damages in the building to the roof or drainage structure or assembly, or
building contents that results; and all repair and replacement shall be at
CM’s sole expense.
Revocable license. CM has a revocable license to enter and perform Work upon
the Project site within the Work Area. CM shall confine its plant, apparatus,
staging, and storage of materials, and its operations as limited by the Contract
Documents and Law. CM shall not unreasonably encumber the Project site, or
any structures thereon, with its materials; nor shall it load or permit any part of
the Work or existing structures to be loaded with weight that endangers its
safety or harms the structure.
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h.
Space conditions. All pipes passing through floors, walls, and ceilings shall be
installed with sufficient space between them to permit installation of pipe
insulation and floor, wall, and ceiling plates without cutting of insulation or
plates. Roughed-in dimensions shall be prepared by CM to accomplish this
requirement. CM shall anticipate and locate all equipment that must be serviced,
operated, or maintained in fully accessible positions. This provision includes but
is not limited to valves, traps, cleanouts, motor, controllers, switchgear, drain
points, filters, access doors, and fire dampers. If spaces, dimension, or other
design conditions do not permit compliance with this paragraph, CM shall
submit to Design Professional and ADR an RFI seeking guidance and direction
before installing related Work.
7.
Duty to timely inform UGAA. CM’s scheduling of the Work shall allow UGAA
adequate and reasonable time to make informed decisions and to meet its obligations
under the Agreement.
8.
Real-time electronic weather alerts. In addition to other notices required herein, each
business day on which CM’s progress is slowed, impacted, or potentially delayed by
weather or site conditions, CM shall, during that day or the end of the next business day,
send an e-mail to the ADR identifying: (i) weather and ground conditions at the site; (ii)
the nature of the event or condition that affects the Work; (iii) what portions of the Work
were affected; and (iv) what Work, if any, took place on-site that day. CM shall place in
the subject line of the e-mail the words “weather alert,” followed by the Project name,
followed by the date (e.g., “Weather Alert/UGAA Projectname 9.12.15.”). This e-mail notice
does not replace required Daily Reports.
9.
a.
CM hereby waives any and all claims for otherwise-justifiable weather-related
adjustment of Contract Time or the Project Schedule if it fails to send the e-mail
weather alerts specified in the preceding paragraph to the ADR (whether or not
the day of the occurrence will ultimately be the subject of a claim for adjustment).
b.
The ADR’s receipt of this e-mail weather alert notice does not constitute
acceptance of, or agreement with, the claims or statements made by the CM in
that alert.
Meetings. CM shall conduct periodic on-site project meetings at the intervals
established in Article I – and more frequently as requested by ADR or as needed to
maintain progress of the Work and meet all Milestone Dates set forth in the Project
Schedule.
a.
Persons required to attend. CM shall cause the following persons to attend each
periodic on-site meeting: (i) CM’s Project Manager; (ii) CM’s on-site
Superintendent; and (iii) key Subcontractor superintendents, foremen, or other
persons with authority and information to act on behalf of each Subcontractor
whose Work is to be discussed, planned, or at-issue in the meeting; and CM shall
invite in advance Design Professional of Record and Design Professional’s
Project Manager.
b.
Agenda. The agenda of every periodic on-site meeting shall include: (i) safety; (ii)
review and approval of past meeting minutes; (iii) sequence and timing of the
Work, key deliveries, use of the site, storage, temporary facilities; (iv)
outstanding RFI’s, ITC’s, PCO’s, Change Orders, Payment Applications, etc.; (v)
existing conditions and Work-in-Place; (vi) past and new action items; (vii) items
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that could affect Cost of the Work, GMP, or Contract Time (viii) realized or
anticipated problems or hazards; (ix) utilities and road and curb cuts; (x)
scheduling of inspections and tests of all types, and reviewing results of those
performed; (xi) weather-related issues; (xii) Separate Contractors and installation
of UGAA Equipment; (xiii) payments to Subcontractors; (xiv) demands, claims,
or disputes (if any); (xv) site maintenance; and (xvi) review of progress and how
it complies (or fails to comply) with the then-current Project Schedule and CM’s
Progress and Completion Schedule.
c.
10.
K.
Meeting minutes. CM shall prepare written minutes for each Project-related
meeting (including without limitation Preconstruction Meetings), transmitting
same within three days in MS Word format to ADR and Design Professional for
their respective review and comment – and shall make subsequent corrections
accordingly. Upon request of ADR, CM shall digitally record meetings – either in
audio or in audio-video format, as requested by ADR – and transmit recordings
digitally to ADR within three days of the meeting recorded. No photographic,
video-graphic, audio, or digital recording of meetings involving UGA or UGAA
personnel may take place without the express written consent of ADR, which can
be withheld for any reason.
CM’s duty to obtain competitive pricing; Self-performed Work. Whether pertaining to
Component Change Order Work, GMP Change Order Work, or other Cost of Work or
other changes in accordance with Article VIII, CM acknowledges its fiduciary duty in
the service of UGAA’s interests to seek and obtain competitive pricing from potential
Subcontractors and suppliers, which duty applies to both pricing of adjustments to the
GMP and payment for Work under any circumstances in which Subcontract costs affects
payments to CM or the Cost of the Work. Unless excused in advance in writing by the
ADR, satisfaction of this duty requires CM to obtain by fair and competitive means at
least three written proposals for each element of the Work that affects payments to CM
of any kind. Self-performance of the affected Work by CM will not satisfy this
requirement unless: (a) CM has provided to ADR the proposed costs involved in
performance of the affected Work; (b) CM has obtained bona fide competitive price
proposals from at least two other potential providers of the Work to be performed; and
(c) the maximum cost of the subject Self-performed Work is approved in writing in
advance by the ADR. CM waives any right it may have to compensation for Selfperformed Work that it undertakes without written consent of ADR or without having
justified the performance in the manner specified in this paragraph. CM shall provide to
ADR and Design Professional copies of scope sheets, comparative analysis of scope and
bids, and CM’s recommendation of the proposed Subcontractors. That said, nothing in
this Agreement shall require UGAA to accept CM’s recommendation or to make price
the dominant factor in selection of Subcontractors.
Preconstruction Services. All Preconstruction Services shall be performed taking into account
that the Project must be constructed within the Stated Cost Limitation indicated in the
information preceding Article I. At the outset of Preconstruction Services, CM shall prepare for
ADR approval a Construction Management Plan, including a Preconstruction Bar Chart (Gantt)
Schedule, as described in ¶ VI(F)(1), addressing existing conditions and programming, potential
component identification, potential bid package categories, construction strategy, cash flow and
invoicing, potential staging or phasing of construction, scheduling, security, quality control,
safety, costs, on-site facilities, and coordination with UGAA, Design Professional, and others
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involved in the design and construction process. Terms and conditions of this Agreement shall
also apply to Preconstruction Services.
1.
Examination of Project criteria and studies. CM shall examine Project Criteria,
program, preliminary studies, surveys, existing conditions, and any other existing
information provided by UGAA. Throughout the Preconstruction process, CM shall
work collaboratively with UGAA and Design Professional, supplying costs estimates,
cost evaluation, value engineering recommendations, design analysis, constructability
reviews, and technical input on methods of construction, materials, details, bidding
formats and strategies, and options for creation of separate bidding packages and
Component Construction Documents packages.
2.
Preconstruction meetings. Preconstruction meetings will take place with ADR and/or
Design Professional as often needed to assure timely performance of Preconstruction
Services and progress of the Project. As part of the CM Preconstruction Fee and CM
Preconstruction Overhead Costs, CM (together with all of its key preconstruction
personnel) shall attend all preconstruction meetings.
3.
Review and development of designs and components. CM shall participate in and
contribute to the review and development of the Project’s design and scheduling of the
design and construction, including Components thereof, construction of Components of
the Project under Component Change Orders, and of the entire Project under a GMP
Change Order. At each stage of Preconstruction Services, CM shall provide analysis of
different construction methods in each major trade group for potential quality, cost, and
scheduling enhancements or improvements.
4.
Construction Documents review. CM shall examine Construction Documents
(including Component Construction Documents) as they are being prepared and shall
furnish prompt and timely up-dated feed-back to same with regard to constructability,
maintainability, scheduling, cost, permitting, and value-driven potential substitutions of
materials, systems, and assemblies and other value-engineering options.
5.
Schedules. CM shall develop: (a) a master Project schedule; and (b) Preconstruction
Schedule, consistent with schedule requirements set forth in Article VI.
6.
Major equipment. CM shall prepare major equipment and Lead-Time Item purchasing
packages (as defined in ¶ III(M)(6)(a)).
7.
Safety, quality assurance, and schedule adherence. CM shall prepare written
requirements for safety, quality assurance, and schedule adherence.
8.
Preconstruction Budget. Before commencement of Work under a Component Change
Order and/or under the GMP Change Order, CM shall provide to UGAA and update a
detailed Preconstruction Budget, including in it line-item estimated costs for each
discrete cost of the Work within the Stated Cost Limitation indicated in the information
preceding Article I.
a.
CM shall revise and refine the Preconstruction Budget at appropriate intervals as
requested by the ADR or required by the conditions of the Work and present the
revisions to the ADR.
b.
CM shall prepare estimates of the Cost of the Work at Preliminary and
Conceptual Design Phase, Schematic Design Phase, Design Development Phase,
50% Construction Document Phase, 80% Construction Documents Phase, 100%
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Construction Documents phase, and at such other times or intervals as the ADR
may request. Estimates shall be accompanied by a written statement indicating
whether the design, as indicated in the respective drawings and specifications,
can be built within the then-current Stated Cost Limitation (or the then-current
GMP, if a GMP Change Order has been executed by UGAA).
L.
c.
As projected costs of the Work become more determinable, the CM shall
incorporate into the Preconstruction Budget approved changes as they occur;
shall develop cash flow reports and forecasts; shall identify variances between
actual and budgeted costs; and shall advise the ADR promptly whenever
projected costs exceed or may exceed the budgeted cost.
d.
The Preconstruction Budget, as updated during the course of Preconstruction
Services, shall form the basis of the initial Schedule of Values upon execution of
Component Change Orders and/or the GMP Change Order.
9.
Best efforts for Project success. CM will assist UGAA in development of a strategy for
the best approach to the successful completion of the Project as a whole, which
assistance shall include, but not be limited to, provision of guidance in preparation of a
reliable Preconstruction Budget and other cost estimates, Project Schedules, bid package
allocations, etc.
10.
Bidding and Award.
a.
Performance requirements. CM shall develop requirements to assure cost and
quality control and timely performance during construction.
b.
Schedule. CM shall develop a provisional Preconstruction Baseline CPM
Schedule indicating methods and sequencing of construction – for review by
UGAA and issuance with the bid packages.
c.
Bidders. CM shall: (i) identify and pre-qualify bidders in a manner acceptable to
UGAA; (ii) prepare the separate bid packages and documents in coordination
with Design Professional; (iii) distribute bid documents in a manner consistent
with ¶ III(J)(10); (iv) monitor bidding activity, and report it to ADR; (v) schedule
and conduct pre-bid conferences in conjunction with Design Professional for the
various bid packages; (vi) review and analyze bids and advise ADR accordingly;
and (vii) update the Preconstruction Baseline CPM Schedule.
Construction-phase Services.
1.
Component Change Order process.
a.
Staged construction possible. UGAA may elect to proceed with Constructionphase Services with respect to portions of the Work, even while Preconstruction
Services are being performed for other portions of the Work. Construction may
commence with UGAA’s execution of a Component Change Order before its
execution of the GMP Change Order. The terms and conditions of this
Agreement, including Article VIII, also apply to Component Change Order
Work. Construction-phase Services shall not begin unless and until UGAA issues
(by e-mail or otherwise) a written Notice to Proceed with Construction-phase
Services. Such notice may be issued by the ADR by e-mail.
b.
Proposal. If, prior to the execution of the GMP Change Order, UGAA authorizes
(as provided in the immediately preceding subparagraph) commencement of
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construction or procurement of any Component of the Project for which UGAA
has approved Component Construction Documents, UGAA may request CM to
obtain proposals and to submit a proposed Component Change Order to this
Agreement under which the CM shall offer to contract with Subcontractor(s) for
construction of the Component or procurement of items in the Component in
accordance with the Component Construction Documents. UGAA’s request will
identify the specific Component of the Work for which a proposed Component
Change Order is requested. Component Change Order proposals shall be
accompanied by a proposed CPM-based Project Schedule conforming to the
requirements of Article VI.
c.
Component Construction Documents shall be prepared by Design Professional
with the assistance and advice of CM.
d.
Component Change Order Sum. The Component Change Order Sum shall be
the maximum amount that UGAA is required to pay CM for complete and
compliant performance of the subject Component Change Order Work – and
shall consist of: (i) Component Subcontract Sums for Subcontractor(s) to be
engaged to perform Component Change Order Work; (ii) CM’s estimated actual
cost for UGAA-approved Self-performed Component Change Order Work; (iii)
an ADR-approved UGAA Component Contingency Account (where otherwise
justified hereunder); (iv) CM Construction Fee applicable solely to performance
of Component Change Order Work (limited proportionately for the Component
Change Order to the same proportion applicable to the overall CM Construction Fee
indicated (in the information preceding Article I) to the Stated Cost Limitation indicated
in the information preceding Article I); and (v) CM Construction Overhead Costs
(including without limitation mobilization costs, temporary facilities, all other
CM costs and expenses) for complete performance and administration of the
Component Change Order Work(limited proportionately for the Component Change
Order to the same proportion applicable to the overall CM Construction Overhead Costs
indicated (in the information preceding Article I) to the Stated Cost Limitation (indicated
in the information preceding Article I).
e.
Bonds. At the time set forth in ¶ I(L) above, CM shall provide Bonds as required
in Article XIII. The penal sum at any given time shall be not less than the total of
approved Component Change Order Sums to-date (even before execution of a GMP
Change Order). If no Component Change Order or GMP Change Order has been
issued at the time in which Bonds are required under ¶ I(L), CM shall provide
Bonds, each with a penal sum equal to the Stated Cost Limitation indicated in the
information preceding Article I. Concurrent with execution of the GMP Change
Order, CM and its surety will provide Surety’s endorsements on any existing
Bonds that will increase the penal sum of Bonds as endorsed to not less than the
GMP in the GMP Change Order, as that amount may be increased by subsequent
Change Orders.
f.
Execution and modifications of Component Change Orders shall only be by
those persons authorized in Article XVI to bind their respective Party and in the
manner set forth therein. Modifications to Component Change Orders must be in
writing in a manner that complies with Article VIII. Upon execution of
Component Change Order, it will become part of the Contract Documents. The
Work performed thereunder shall be performed and administered in accordance
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with the Contract Documents. Component Change Order Work must commence
within three days after execution of the Component Change Order by UGAA.
g.
2.
M.
Component Change Order Work not Preconstruction Services. All costs, fees,
profits, overhead, and any other compensation of any kind accruing hereunder
to CM for Component Change Order Work shall be included in the Cost of the
Work, CM Construction Fee, or CM Construction Overhead Costs, as the case
may be – and shall not be deemed part of either the CM Preconstruction Fee or CM
Preconstruction Overhead Costs.
GMP Change Order.
a.
Proposal. After designs and Construction Documents are sufficiently developed,
and upon request of the ADR, CM shall submit for UGAA review and approval a
proposed GMP Change Order to establish the GMP, which shall be inclusive of
the Cost of the Work, CM Construction Fee, CM Contingency Account, and CM
Construction Overhead Costs – all as necessary to complete the Work on or
before the Contractual Date of Substantial Completion. The GMP Proposal shall
be submitted to ADR and Design Professional for review, comment, and, where
appropriate, UGAA approval, together with the Schedule of Values, as required
in ¶ V(B)(1). Scope of Work included Component Change Orders executed
before execution of the GMP Change Order shall be subsumed into the GMP
Change Order and shall be indicated on a line-item basis (in each of their
constitute parts (e.g., Component-specific Cost of the Work, CM Construction
Fee, CM Contingency Account, and CM Construction Overhead Costs)) in the
Schedule of Values, the GMP Change Order, and in subsequent Payment
Applications, with credits for previous payments to CM allocated accordingly.
b.
GMP Change Order as Contract Document. The GMP Change Order will, upon
execution by UGAA, become part of the Contract Documents.
c.
Application to GMP of amounts paid. Amounts due or paid to CM prior
execution of the GMP Change Order (exclusive of CM Preconstruction Fee and
CM Preconstruction Overhead Costs) shall be credited to UGAA under the GMP
and applicable to: (a) amounts that may become due to CM within the GMP; and
(b) Component Work for which payments were made.
d.
Effect of GMP Change Order. GMP Change Order shall bring forward and
incorporate on a line-item basis all Component Change Orders that preceded it,
including their respective CM Construction Fee, CM Construction Overhead
Costs, and Cost of the Work, giving full credit to UGAA for all amounts paid for
each. Cost of the Work, CM Construction Fee, and CM Construction Overhead
Costs components of the Component Change Order Sums shall be cumulative so
that the aggregate of those components of all Component Change Orders that are
executed at any time shall be available for payment to CM where incurred,
substantiated, and approved by UGAA in the performance of Component
Change Order Work. CM Preconstruction Fee and CM Preconstruction Overhead
Costs shall be accounted for separately from the GMP Change Order and any
Component Change Orders, and are not part of the GMP.
Complete performance of the Work. CM shall fully and timely perform the Work in
accordance with the obligations set forth herein and elsewhere in the Contract Documents.
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1.
CM solely responsible for the Work. No inspection, testing, job-site meeting, review of
submittals, audit, review of schedules or Payment Applications, or any other decision,
representation, or act of (or omission in) construction administration by UGAA, the
ADR, the Design Professional, government, or others shall relieve CM of its obligations
under the Contract Documents and under Law.
2.
Daily clean-up. Each day, CM shall broom-clean the paved surfaces of the site and the
floor surfaces in the subject structure(s), removing all debris, waste, scrap, and trash
from the Project site, placing it in a dedicated steel container designed for that purpose,
and lawfully disposing of it off campus weekly, or more often as needed, keeping
records of the manner and location of the disposal. CM shall deposit no debris or other
waste of any kind or in any amounts in any UGA trash collecting container or facility. In
no case shall combustible waste and debris be allowed to accumulate on-site. CM shall
not permit any sanitary nuisance in or about the Work area at any time. If CM fails to
satisfy the foregoing obligations, UGAA, without notice, may, but is not required to,
undertake steps to do so itself, or by using other forces – deducting all costs and
expenses incurred from the GMP by unilateral Change Order.
3.
Cutting and patching. CM shall minimize cutting and patching of existing surfaces and
building components to the degree possible under the circumstances. Where cutting is
required, patching shall yield a resulting surface that is, in the opinion of the ADR,
acceptable aesthetically and continuous in terms of color, texture, and strength.
4.
Dust control. In addition to any other measures that may be indicated in the
Construction Documents, CM shall install dust-proof enclosures, partitions, mechanical
system filters, and other devices as necessary to avoid transmission of dust outside the
Work Area – or into heating, ventilation, and air conditioning (“HVAC”) systems or
other parts of the Work-in-Place in which dust is harmful or unacceptable. CM shall
dampen debris and the Project site as required to avoid blown dust.
5.
Stabilization of the Work. CM shall take all steps necessary to stabilize the Work-inPlace and any surrounding site, earthwork, or building features, systems, assemblies,
and components to prevent deterioration, collapse, or damage of any kind. CM shall
protect all Work, including but not limited to excavations and trenches, from rainwater,
surface water, and back-up of drains and sewers.
6.
Submittals. CM shall prepare and deliver all samples, shop drawings, and other
submittals required by the Contract Documents (“Submittals”).
a.
Concurrent with CM’s execution of this Agreement, CM shall provide a schedule
of Submittals and the anticipated dates on which each scheduled submittal item
will be submitted, which schedule shall identify those items for which advance
procurement will be necessary to meet the Project Schedule as set forth in Article
VI (“Lead-Time Items”), and shall provide for them in its Project Schedule and in
Progress and Completion Schedules. CM’s proposed Submittal schedule shall
indicate, with respect to each Submittal, whether the Submittal is to be provided
as an electronic (digital) Submittal or a hard-copy Submittal – or both. Even upon
approval of a Submittal schedule by ADR, ADR may, at any time subsequent
during the Submittal process, require that Submittals be provided by CM in
either electronic or hard-copy form (or both) – and at no additional cost to
UGAA.
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i.
Electronic Submittals. Electronic (digital) Submittals are acceptable in readonly form. CM shall stamp and sign the Submittals indicating
unequivocal approval, then scan and distribute the documents as
required herein including an electronic copy to ADR.
ii.
Hard-copy Submittals. If hard-copy Submittals are required, CM shall
submit five copies of all required Submittals to Design Professional.
Submittals bearing final approval of Design Professional and CM shall be
distributed by CM as follows: (A) two copies to ADR (one being
delivered with Closeout Materials required herein); (B) one copy to
Design Professional; and (C) one copy retained by CM.
b.
CM shall deliver Submittals for review by the Design Professional sufficiently in
advance of need to allow a time for review and comment without delaying
delivery of Lead-Time Items or progress of the Work. In no case shall less than
fourteen days be allowed for that review. CM waives in advance all objections to,
or claims arising out of, lengthened review of submittals that are not timely
submitted in accordance with ¶ III(M)(6)(a).
c.
CM shall date, consecutively number, stamp (with text indicating its
unconditional approval), and sign (indicating that approval) each copy of each
Submittal (and Resubmittal) before delivering them for review to the Design
Professional (and/or others where directed).
d.
By transmitting a Submittal or Resubmittal for review, CM represents that it has
thoroughly reviewed that Submittal or Resubmittal, and that the component,
material, or assembly described in that Submittal or Resubmittal complies with
the Contract Documents and can be installed as shown; and any disclaimers to
the contrary shall be of no effect.
e.
On each Submittal, CM shall note its approval of the information contained
therein as being conformant with the requirements of the Contract Documents –
and note graphically and textually any and all deviations between the
components, products, and/or assemblies indicated in the Submittal and the
correlative construction drawing or specification section(s) from which they
deviate. CM shall mark graphically and textually, noting on Resubmittals, all
changes and updates from previous version(s) of Submittals.
f.
CM shall maintain a Submittal Log, indicating each Submittal, Resubmittal, and
relevant information regarding its status.
g.
Design Professional will review, comment, and, if appropriate, approve or reject
Submittals, returning reviewed Submittals to CM for modification and
Resubmittal or for installation consistent with the review and comments. CM
shall keep a complete set of Submittals, Submittal comments and review notes,
Resubmittals, Submittal logs, and related documents on-site, allowing access by
UGAA and Design Professional upon request. Reviews and/or comments by the
ADR, Design Professional, or others shall not be for correctness of dimensions,
quantities, or coordination with existing conditions or other Work, all of which
remain the sole responsibility of CM.
h.
Submittals are not Contract Documents. No review and comment (or failure to
review or comment) by UGAA, the ADR, Design Professional, or others will
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relieve CM of its obligation to fully and timely perform as required by the
Contract Documents. Nothing noted in Submittals or on them shall modify the
Contract Documents in the absence of a duly executed Change Order proposed
in the manner set forth in Article VIII.
7.
i.
To the extent the Contract Documents expressly permit or require signature and
seal (or other certification) by DPD’s or other licensed professionals of shop
drawings or other Submittals related to a particular component, material, or
assembly, each page of the Submittal (in the case of drawings) and the cover of
each textual Submittal (e.g., product information, specification, warranties, and
other written text) shall bear the professional seal and signature of the DPD or
other licensed professional under whose personal, direct, and responsible
supervision the document(s) was prepared. UGAA shall be entitled to rely on the
DPD’s seal and signature as an indication that DPD accepts full professional
responsibility for the contents of the documents bearing that seal and signature.
j.
CM cannot, by stamp, cover letter, or otherwise, limit, disclaim, or deny
responsibility for content of the Submittals or professionally certified documents;
and disclaimers to the contrary are of no effect.
k.
If CM contends that comments or notes by UGAA, the ADR, Design
Professional, or others on Submittals constitute a change from the Contract
Documents that requires modification of the Project Schedule, Milestone Dates,
Contract Time, or GMP, CM shall, within seven days of receiving the comment
or note, submit to the ADR and Design Professional a PCO documented in the
manner prescribed in Article VIII – or waive any right CM might otherwise have
to compensation (or adjustment of Contract Time) related to the purported
change.
l.
To the extent that UGAA incurs costs or fees of any kind related to re-review
necessitated by non-approval of CM’s Submittals, CM shall immediately
reimburse UGAA for those costs; or, in the alternative, UGAA may issue a
unilateral Change Order, reducing the GMP accordingly.
m.
All costs related to preparation of Submittals shall be borne by CM as part of the
CM Construction Overhead Costs within the GMP.
Daily Reports. Each weekday and other day on which Work is performed on-site, CM
shall contemporaneously prepare daily written reports, detailing: (a) the Work
performed; (b) the CM’s personnel on-site (and the hours worked); (c) Subcontractors’
personnel on-site (and the hours worked); (d) deliveries of major materials and
assemblies; (e) the temperature and other weather and site conditions; (f) inspectors or
other nonparties or governmental agents on-site and their respective activities; (g)
notation of tests performed and test results received; (h) meetings held; (i) safety
concerns encountered or addressed; (j) RFI’s and PCO’s issued; (k) notices, claims, or
demands received; and (l) any other information or content requested by ADR. Each
Daily Report shall be signed contemporaneously by CM’s Superintendent, which
signature is CM’s representation of their accuracy and reliability. CM’s preparation of
contemporaneous and accurate Daily Reports is required in all cases; and their submittal
to ADR within 72 hours of an ADR request is a condition precedent to UGAA’s
obligation to pay. Copies of any and all Daily Reports must be submitted to ADR at any
time upon request.
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8.
9.
As-built information.
a.
As-built Construction Documents. CM will continually update a distinct,
complete set of Construction Documents, contemporaneously documenting all
Work that either: (i) is covered or hidden by subsequent Work, earthwork, etc. as
it is installed; or (ii) deviates in location or method of installation from that which
is indicated in the Contract Documents. Required as-built information must be
recorded at the time of installation (in graphic and textual form), showing precisely
what material or component was installed, the date it was installed, at what
location it was installed, at what elevation it was installed, what other Work or
existing conditions were modified to permit installation, and noting in detail, by
special markings, how (if at all) installation in each such case deviated from that
indicated in the Contract Documents – identifying also the person noting the asbuilt information and the date it was noted;
b.
Progress Photos. CM shall digitally photograph: (i) each element of the Work as
it is installed and before it is covered or concealed by other Work; (ii) daily
construction activities or non-activity on-site each business day and on any other
day that Work is performed; and (iii) any safety or other condition requiring
notice hereunder. Progress Photos shall bear digital time and date imprints.
Copies of any and all Progress Photos must be submitted digitally to ADR at any
time upon request; and
c.
Finishes Binders. CM shall, during the course of the Work, supply the Design
Professional with updated samples, swatches, and examples and pieces of actual
materials used in the Work for Design Professional’s incorporation into finishes
binders (“Finishes Binders”). Materials contained in Finishes Binders shall be
fully labeled and shall bear identification of the product using the same finish
tags, labels, and specification numbers used to identify and describe the product
in the Construction Documents.
Temporary facilities. CM shall provide and maintain the following on-site (until
removal is authorized in writing by ADR):
a.
A current set of record Contract Documents, Change Orders, RFI’s, PCO’s,
ASK’s, Payment Applications (for CM and Subcontractors), Subcontracts,
purchase orders, delivery tickets – all of which shall be secured so as to allow
access only by UGAA, the ADR, CMDR, CM’s Project Manager, and CM’s
Superintendent;
b.
A permit set of Construction Documents bearing the stamps and notes of
governmental officials having jurisdiction over the Project or the Work; as well as
current inspection sign-off sheets and other products of review by governmental
inspectors, building officials, etc.;
c.
All temporary excavation shoring, bracing, forms, underpinning, lateral support,
enclosures, structures, and devices needed to perform the Work and to secure
and protect the Work-in-Place, all materials stored on-site, adjacent property,
existing structures (or portions of existing structures) to remain, and persons onsite or adjacent to the site from injury, deterioration, collapse, damage, and harm
of any kind, and in accordance with Contract Documents;
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10.
d.
Temporary site and building lighting and all other appurtenances and measures
as needed for complete maintenance of Project safety, security, and performance
of the Work at all stages;
e.
Temporary power, water, and other utilities;
f.
First-aid kits and any other needed safety equipment, accessible and distributed
as needed;
g.
Temporary access roads, and off-street parking and loading areas – where
approved in advance in writing by the ADR;
h.
Site grading, gravel, paving, soil stabilization, and other temporary measures
needed to: (i) facilitate uninterrupted progress of the Work; (ii) avoid ponding of
water and unlawful run-off of sediment at all stages of grading; (iii) avoid
erosion and rutting of soils; and (iv) install, observe, and maintain (and replace as
necessary during the course of the Work) equipment and measures adherent to
Best Management Practices as set forth in ¶ XV(Q)(7) herein to protect the Project
site, adjacent property, roads, streams, wetlands, and waterways against
unlawful sedimentation, erosion, and other Pollutants;
i.
Posted and protected notices, including notices of commencement, notice of
bonds, permits, a directory indicating after-hours emergency telephone numbers
for CMDR, CM’s Superintendent, CM’s Project Manager, and the ADR, and any
other postings required by the Contract Documents, the ADR, or by federal,
state, or local Laws;
j.
Where ASK’s clarify information on drawings, CM shall append copies of the
ASK to the drawing(s) clarified by it;
k.
CM may provide and install site signage as required to direct deliveries;
however, signage design and location must be approved in advance in writing
by ADR – and cannot serve as advertising for CM, Design Professional,
Subcontractors, suppliers, or others; and
l.
Other Temporary Facilities as set forth in ¶ I(R).
Inspection of Work before it is covered.
a.
CM’s duty to inspect. CM has an affirmative, indivisible, nondelegable, and
nontransferable obligation to UGAA to inspect the Work (and involved portions
of existing structures to remain, if any) at all stages of construction and to
supervise and superintend performance of the Work in such manner as to enable
it to confirm and certify at all times that the Work has been executed in strict
accordance with the Contract Documents. CM expressly waives any defense to
breaches of its obligations hereunder based upon: (i) another person or entity’s
failure to bring a noncompliance or defect in the Work to CM’s attention; or (ii)
alleged fault of a Subcontractor of any tier.
b.
UGAA opportunity to inspect. UGAA is entitled to, but is not required to,
observe and inspect all Work before it is covered by CM. CM shall provide
sufficient advance notice that installed Work is to be covered so as to allow
UGAA, Design Professional, and governmental inspectors having jurisdiction
over the Project and the Work reasonable opportunity to inspect it. If, without
notifying the ADR, Design Professional, government inspectors, etc., CM covers
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Work before such inspection, or covers Work that the ADR (or Design
Professional or government inspectors) have asked to inspect before covering,
UGAA can require CM to uncover the Work for inspection, with CM bearing all
related costs (without regard to whether the Work uncovered is found to be
defective). This obligation is not discharged by CM’s provision of Progress
Photos of the Work to be covered.
11.
Testing and quality control. CM shall provide that testing which is assigned to CM in
the Contract Documents.
a.
CM’s testing obligation. CM shall engage independent, licensed, technicians
and engineers to certify fire alarm and fire suppression systems, as installed.
b.
Reporting test results. CM shall submit resulting reports to the ADR no more
than seventy-two hours after the test is performed, and shall thereupon deliver
to the ADR any related citations, claims, demands, or retests in the manner
prescribed herein for notices and claims.
c.
Scheduling tests. CM shall arrange for and schedule all materials testing and
quality control measures required by the Contract Documents – as well as test
and inspections by UGAA’s Testing Consultants (see ¶ IV(C)), building officials
and other agents of government, and other nonparties.
d.
Re-testing. CM shall bear the costs of testing and retesting as provided in ¶
IV(C)(3).
e.
Scheduling inspections. CM shall arrange for inspections by the State Fire
Marshal (or delegatee UGA Fire Safety Division officials) at 80% completion (i.e.,
installation of fire walls, vertical shafts, stairways, smoke stops, hazardous area
separations, roof and ceiling assemblies, corridors and doors, HVAC systems,
and similar systems and assemblies) and 100% completion (i.e., all Work
complete with Certificate of Occupancy in-hand). CM shall issue notice to ADR
and UGA Fire Safety Division when all items on the 100% completion inspection
report have been satisfied and completed. CM shall submit the executed
Certificate of Occupancy to ADR.
f.
Mold, mildew, and other moisture-related contamination – precautions and
testing.
i.
CM shall permit no part of the Work or any part of any Project
structure(s) to contain, develop, or be contaminated to any degree
whatsoever with mold, mildew, or any bacterial or fungal growth or
infestation (collectively “contamination” or “moisture-related
contamination”).
ii.
Before accepting delivery of materials for use in the Project, CM shall
examine the material or assembly delivered for dryness in accordance
with the requirements of the Construction Documents and other Contract
Documents. The materials shall be tested for moisture content upon
delivery, stored, secured, and protected as required by the Contract
Documents and as needed to preserve them from the weather, moisture,
and contamination-causing forces.
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12.
iii.
CM shall take all steps necessary to assure that stored and installed
materials and assemblies are kept and preserved in a way that prevents
mold, mildew, bacterial and fungal infestation, and other forms of
contamination.
iv.
The Work and stored materials shall be retested for moisture content at
the time of installation.
v.
Before any Work is covered, CM shall examine the materials and Work to
be covered and the substrate on which it is installed or to which it is
attached to assure that it is free of moisture or moisture-related
contamination, and shall not permit Work to be covered if water, visible
moisture, or other conditions contrary to the requirements of the Contract
Documents are present. Where the Work involves modifications of, or
additions to, existing structure(s), this requirement also applies to
involved or adjacent portions of existing structures that are to remain, as
well as to new or modified construction.
vi.
Work installed or performed in contravention of this and related
provisions shall, by definition, be deemed Defective Work.
Defective or Noncompliant Work. CM shall notify the ADR upon its discovery of
Defective Work.
a.
Duty to correct Defective Work. As a material obligation of this Agreement, and
whether or not formally rejected or condemned by UGAA or others, CM shall
replace all Noncompliant or Defective Work, thereafter resequencing and/or
accelerating the Work as needed to comply with the Project Schedule and
satisfaction of Milestone Due Dates in it. In no case shall demolition or correction
of Defective or Noncompliant Work justify an increase in the GMP or an
extension of Contract Time.
b.
Aesthetic judgment. Judgments and decisions of the ADR in matters of
aesthetics pertaining to the Work shall be determinative and binding on the
Parties. Aesthetic opinions, if any, offered by Design Professional are deemed to
be advisory only.
c.
Repair and correction. Where, in the opinion of UGAA, Defective Work can be
repaired in a way that is likely to result in compliance, CM may attempt repair.
Consent by UGAA to CM’s attempt to repair, however, shall not waive UGAA’s
right to require CM’s removal and replacement of any and all Defective Work
that is not repaired to UGAA’s satisfaction or is not brought into full compliance
with the Contract Documents.
d.
UGAA right to correct Defective Work. If CM fails to timely correct Defective
Work, UGAA may, upon three days’ notice (or sooner in emergencies), perform
the correction itself or engage Separate Contractor(s) to correct it. CM shall pay
all costs and fees related to, or arising out of, removal, demolition, replacement,
correction, repair, re-inspection, and re-testing of the Work, as well as any and all
related governmental fees, costs, penalties, and fines, including Design
Professional and attorneys’ fees and other costs incurred by UGAA related to the
Noncompliant or Defective Work.
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e.
N.
UGAA’s option to accept certain Defective Work. UGAA may, but is not
required to, accept Defective Work. If UGAA chooses to accept Defective Work,
UGAA will determine, in good faith, what reduction in value the completed
Work will suffer due to the Defective Work and will, upon notice to CM, issue a
unilateral Change Order reducing the GMP by an amount equal to that value,
plus all of UGAA’s costs in addressing the Defective Work. In determining that
value, UGAA may, but is not required to, take into account the estimated cost to
remove and replace the Defective Work with Work that complies with the
Contract Documents. UGAA’s election to accept an element of Defective Work
does not excuse or release CM from any warranty obligation, one-year correction
obligation, or any other obligation hereunder. If CM objects to UGAA’s proposal,
CM must immediately notify ADR of its intention to remove and replace the
Defective Work without increase in Cost of the Work, GMP, or Contract Time –
and must do so without delay. If ADR does not receive written notice of CM’s
objection within seven days from issuance of ADR’s proposal, CM waives
objection to issuance of a binding unilateral deductive Change Order at the value
determined by UGAA or by the cost of UGAA’s correction by other means.
13.
Deliveries. UGAA cannot accept delivery of any materials. CM shall be solely
responsible for accepting and unloading its materials and equipment, and moving them
as necessary during the course of the Work.
14.
Use of site; on-site storage. CM shall coordinate and use only the area(s) designated or
approved by UGAA for Project-site office, storage of materials and equipment, parking
and staging operations. These areas and grounds shall be left clean and restored by CM
to the same condition (or as otherwise indicated in the Construction Documents) at
Substantial Completion of the Work. Construction and staging are limited to designated
(or ADR-approved) areas. CM shall store and secure materials on-site so as to avoid
theft, vandalism, and destructive environmental forces and contamination.
Project information and accounting.
1.
Duty to keep accurate business records. Throughout the course of the Work and for a
period no less than six years after its conclusion, CM shall maintain a complete set of
Project records, including financial and accounting records, which are to be accessible to
UGAA at all times upon reasonable notice.
2.
Audits. Without limiting the foregoing inspection rights or any other rights of UGAA
under this Agreement, and independent of, and in addition to, CM’s obligations to
support Interim Payment Applications with documentary back-up, CM shall facilitate a
comprehensive audit by UGAA of all Project-related records once during each calendar
year during the course of the Work, and again upon submittal of CM’s Final Payment
Application, and at any other time upon request of UGAA. CM’s costs in assisting with
above-noted routine audits are included in the GMP. In no case, however, shall costs
pertaining to any further and additional examination or audit be reimbursable if the
examination was prompted by a failure of CM, or its Subcontractors, to provide
requested information – or if examination discloses any irregularity or impropriety of
record-keeping or Payment Applications, or other breaches of this Agreement.
3.
Nonparty communications. CM shall deliver to the ADR without delay copies of all
Project-related communications it receives pertaining to: UGAA’s Testing Consultants,
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governmental inspectors and authorities, Sureties, testing consultants employed by CM,
or other nonparties.
O.
4.
UGAA’s access to Project information. In addition to any other statement of accounts or
other information to which UGAA is entitled by contract or Law, CM shall provide to
UGAA and the ADR, upon request, prompt access during business hours (or any other
time with cause) to all records related to the Work, including but not limited to: CM’s
costs, payments to (or made by) CM, proposals, estimates, bids, Schedules of all kinds,
insurance, Bonds, licenses, certifications, governmental reports, accident and safety
reports, Project finances, expenses, Subcontracts, purchase orders, invoices, field reports,
Daily Reports, Progress Photos, testing reports, logs, ITC’s, RFI’s, ASK’s, and any other
records, data, information, or documents, including those in possession or control of CM
or its Subcontractors of any tier – regardless of where the document is stored, in what
media it is stored, or whether its contents pertain to pricing of adjustments to GMP,
Contract Time, or Schedules.
5.
Currency of application software. If particular software or equipment is necessary in
order for UGAA to retrieve and review CM’s records, CM will provide it, along with the
services of technicians to operate it.
6.
Consent to UGAA’s access to information. By executing this Agreement, CM expressly
consents to permit UGAA to obtain (without further notice) all credit reports and any
other information that, in UGAA’s opinion, will assist UGAA in determining the
financial condition and circumstances pertinent to CM’s performance of its obligations
hereunder. This provision is among those that survive the completion of the Work or
expiration or termination of this Agreement.
Separate Contractors; UGAA Equipment. UGAA may, from time to time, engage independent
contractors, Testing Consultants, and others to perform work and provide services on-site
(“Separate Contractors”).
1.
UGAA Equipment. UGAA may choose to engage Separate Contractors to perform
services and work related to UGAA-specific equipment, devices, furnishings, conduit,
wiring, supporting devices, or other Project-related elements (“UGAA Equipment”) –
whether or not procurement or installation of UGAA Equipment is included in the Work
indicated in the Contract Documents.
a.
The GMP includes CM’s entire compensation for scheduling, coordinating, and
resequencing its Work and logistics at the Project site to accommodate the
delivery, storage, installation, and protection of UGAA Equipment by Separate
Contractors – and, to the extent indicated in the Contract Documents, it includes
CM’s installation of UGAA Equipment procured directly by UGAA. In all cases,
CM shall review the installation requirements of UGAA Equipment to be
installed, and shall participate in meetings as needed to plan and coordinate the
requisite scheduling and logistics pertaining to installation of UGAA Equipment.
b.
This Agreement contemplates that installation of UGAA Equipment (by Separate
Contractors or others) will likely result in some incidental damage to the Workin-Place. CM shall take the steps necessary to protect both the Work-in-Place and
installed UGAA Equipment from damage – and repair damage caused by lack of
protection. As directed by UGAA, CM shall remove ceiling tiles and panels, and
similar assemblies on other surfaces, to allow Separate Contractors to install
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UGAA Equipment as needed, with CM reinstalling all such tiles, etc., and
repairing or replacing them where damaged.
2.
3.
4.
P.
Coordination and cooperation.
a.
CM shall coordinate its Work, and that of its Subcontractors, with that of all
Separate Contractors, Testing Consultants, and others employed on the Project
by UGAA, taking into account the needs of each, and managing on-site storage,
logistics, access, and scheduling of the Work for the benefit of all.
b.
If CM determines that the conduct or activities of Separate Contractors materially
impacts the Work in such a way that is not reasonably anticipated and in a way
that CM contends will require adjustment of Contract Time or GMP, CM must
within seven days notify the ADR by submitting a PCO in the form acceptable to
the ADR. CM waives any claim for equitable adjustment of the GMP or Contract
Time if it fails to timely do so in strict conformity with Article VIII.
UGAA’s access to site; partial occupancy.
a.
Access to site; right of entry. UGAA and UGA shall have unlimited use of, and
access to, the Project site, the Work-in-Place, stored materials, and any temporary
facilities, as shall governmental officials having jurisdiction over the Work – and
such access and right of entry are available to UGAA and UGA for inspection,
repair of existing utilities, or for any other reason. Where reasonably possible
(and in the case of non-emergency or non-imperative access), ADR will attempt
to coordinate access with CM in advance.
b.
Partial occupancy. If UGAA accepts partial use and occupancy of the Project,
CM shall prepare for UGAA’s approval a Certificate of Substantial Completion
limited to that portion of the Work completed and ready for occupancy. Upon
acceptance in writing by UGAA of that Certificate of Partial Substantial
Completion, and after that Work is put in service by UGAA, CM will not be
responsible for normal wear and tear on the area of partial occupancy. UGAA’s
partial or intermittent use of, or access to, one or more areas of the Project shall
not be deemed to be acceptance of those areas and shall not begin warranty
periods on equipment or components of the Work.
Integration period. During a period beginning thirty days before the Contractual Date
of Substantial Completion and continuing until Final Completion, CM shall, in
coordinating the Work on-site, give deference at all times to UGAA’s needs, including
the need for continual and uninterrupted access by Separate Contractors and UGAA for
their installation of UGAA Equipment – which deference may require CM to perform
portions of the Work at night, on weekends, and holidays, or otherwise out-of-sequence,
all at no additional cost to UGAA.
Substantial Completion. Upon Substantial Completion of the Work, CM shall: (1) obtain all
necessary final governmental inspections, certificates, and other approvals needed for
occupancy and use of the Project in the manner intended by UGAA; (2) comply with all
Closeout Obligations as set forth herein; and (3) execute under oath a Certificate of Substantial
Completion (in the form supplied as Supplement L), which shall subsume any Certificates of
Partial Substantial Completion previously accepted in writing by UGAA.
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Q.
Closeout Obligations. Before submitting its proposed Certificate of Substantial Completion for
UGAA approval, CM shall perform and submit, for UGAA’s review, documents in support of
its complete satisfaction of the following Closeout Obligations:
1.
Test and balance adjustments. CM shall: (a) facilitate examination of test and balance of
HVAC systems by UGAA’s Testing Consultant; (b) adjust the system according to the
results of the testing, until the Work complies with requirements of the Contract
Documents; (c) perform plumbing backflow tests and any other tests (e.g., HVAC test
and balance) when specified in the Construction Documents as being performed by CM;
and (d) rigorously test all other building systems, materials, and assemblies for
compliance with the Contract Documents;
2.
Cleaning. CM shall: (a) remove all labels from materials (except for those designated by
the ADR to remain); (b) clean all materials and assemblies as required by the Contract
Documents and UGAA; (c) install all light bulbs; (d) remove and lawfully dispose of
trash and other debris from the site; (e) restore all affected existing structures, systems,
paving, and landscaping that were not part of the Work to pre-Project conditions; (f)
install new filters; and (g) maintain the Work and the Project site until Final Completion.
The Parties acknowledge that the only maintenance that UGAA will be required to
provide before Final Completion is routine cleaning, incidental to UGAA’s use of the
partially completed Work. The Parties, therefore, assume that all dust, dirt, stains,
smudges, surface damage, etc. will be the product of continued Work and completion of
Punchlist Work, and will, therefore, be repaired and cleaned by CM as part of Cost of
the Work within the GMP;
3.
Transfer of all utility accounts. To the extent that CM or its Subcontractors have
established separate accounts for temporary utilities, CM shall pay all outstanding
utility bills and pending bills, submitting proof that all utility balances have been paid,
and taking all steps necessary to transfer control of utility accounts to UGAA as of the
Realized Date of Substantial Completion as indicated in the Certificate of Substantial
Completion accepted in writing by UGAA;
4.
Attic stock. CM shall provide UGAA with attic stock and other materials as required in
the Construction Documents, delivering and storing usable-but-otherwise-uninstalled
materials, attic stock, required spares, and other items as instructed by ADR. Finishes
Binders, tubs, and storage boxes for stored materials shall be labeled, using the
specifications numbering system indicated for that material in the Construction
Documents. Consistent with that labeling, CM shall create and provide to ADR an MS
Excel spreadsheet inventory of attic stock and other materials, indicating product name,
applicable specification section, quantity of contents, and location(s) of its use;
5.
Punchlist. CM shall assist and cooperate with the ADR and the Design Professional in
their preparation of a complete list of Defective or incomplete Work and Punchlist Work
to be corrected and/or completed; and
6.
Closeout Materials. CM shall assemble and submit for UGAA’s approval the Closeout
Materials and other information required in this Article and otherwise in the Contract
Documents, including:
a.
Submittals. Prepare and deliver to ADR one complete hard-copy set of all shop
drawings, samples, and other Submittals, including drafts, as mark-ups, as well
as related transmittals, correspondence, and other documents, organized and
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categorized consistent with the Submittal Log, which shall also be updated and
delivered to the ADR – and one digital, read-only color electronic copy of same;
b.
Logs. Deliver to ADR a digital copy and the original and three complete sets in
print of logs for Submittals, RFI’s, PCO’s, and ASK’s;
c.
As-built Construction Documents. Deliver to ADR original and three copies of
complete sets of as-built Construction Documents (updated) on print and readonly digital media (in a format acceptable to UGAA);
d.
Finishes Binder materials. CM shall deliver to Design Professional (for submittal
to the ADR) one original and three copies of final samples, swatches, brandspecific color chips, etc. of all finish materials actually used in the Work in
Finishes Binders, as well as a digital copy of same (to include photographs in lieu
of physical samples);
e.
Progress Photos and Daily Reports. Upon request of ADR, deliver to the ADR
(in digital form in a format acceptable to UGAA) a complete set of Progress
Photos and Daily Reports, including but not limited to all those, if any,
submitted with Interim Payment Applications;
f.
Warranties, maintenance data, and manuals, with certification. Submit four
printed, bound, and indexed copies and one read-only digital copy of each
operating manual, certified original warranties (including but not limited to fiveyear wall and roof warranties in the form supplied as Supplement M),
manufacturers’ certifications of installation and completeness of major
mechanical and electrical components, product literature, and other information
required by the Contract Documents, indicating for each supplier of major
equipment and Subcontractor, the name, address, e-mail, and 24-hour telephone
number of the person(s) to be contacted if problems occur with the product or
system – and such other information as the ADR may request, certifying in
writing to UGAA that the manuals are complete and accurate;
g.
Project directory. Submit Project directory to ADR, updated to include persons
and entities applicable to warranty period;
h.
Reports and other commissioning documents. Submit original and three
printed copies and one digital copy of all testing reports compiled, prepared, or
received by CM, and other reports and documents demonstrating completion of
testing and compliant results;
i.
Mold certification. Submit three original CM certifications (in the form supplied
as Supplement P) that the structures and materials comprising the Work are free
of mold, mildew, and bacterial and fungal infestation, that no Work was covered
unless the substrate and Work to be covered were examined for dryness, absence
of water or visible moisture in cavities and on the Work to be covered, and that
materials and assemblies delivered to the Project site were tested as required for
adherence to standards of dryness set forth in the Construction Documents
before acceptance and incorporation in the Work;
j.
Proof of costs. Submit all documents not already submitted that substantiate
Payment Applications and any other component of the cost of the Work;
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k.
Waivers and releases and other back-up materials. Submit final waivers and
releases by CM (Supplement G) and Subcontractors of any tier (Supplement I),
CM Final Affidavit (Supplement H), and other documents substantiating
Payment Applications under Article V and satisfaction of Closeout Obligations;
l.
Consent of Surety. Provide three original copies of Consent of Surety to Release
of Retainage;
m.
Governmental approvals and certifications. Provide a copy of governmental
permits and inspection reports, documents issued by the State Fire Marshal (or
UGA Fire Safety Division officials or other delegatees of the Fire Marshal)
authorizing occupancy of the entire Project, and other documents demonstrating
that CM timely obtained all necessary governmental inspections and approvals.
CM shall deliver any original governmentally issued final Certificate of
Occupancy (or equivalent document where applicable) to the ADR;
n.
Certification of costs and claims. CM shall provide a separate statement under
oath that states that “all costs, charges, invoices, and any claims or demands of
any kind made upon UGAA by CM on the Project are, and have been, accurate
and truthful”;
o.
Other certifications. In addition to other required certifications, CM agrees to
provide such additional certifications as may be requested by UGAA pertaining
to the Project, the Work, CM, and/or its Subcontractors, upon which
certifications UGAA and nonparties may rely. CM will not be required to certify
facts that are outside CM’s knowledge and that could not be determined by CM
in the course of its performance or upon diligent review of information available
to it thereafter; and
p.
List of unpaid Subcontractors. CM shall certify under oath, and submit to ADR,
a detailed list of names, addresses, and telephone numbers of any and all
Subcontractors of any tier, and any other persons or entities who have not been
fully paid with respect to the Work and the Project, specifying, in detail, the
amount unpaid, the justification or excuse for nonpayment, and when (and
under what circumstance) CM will pay them or will cause them to be paid. CM’s
provision of this list does not excuse its payment obligations to Subcontractors
hereunder and under Law. If CM does not submit such a list, that non-submittal
will be deemed an affirmative representation by CM that all Subcontractors of
any tier have been fully paid.
q.
Assignment and transfer of warranties. CM shall assign and transfer to UGAA
all guarantees, warranties, agreements, and post-construction warranties from all
Subcontractors of any tier regarding their respective portions of the Work and
conformance of that Work with the requirements of the Contract Documents,
subject to CM’s reservation of rights under such warranties to the extent
necessary to enable CM to fulfill its obligations to UGAA hereunder. CM shall
protect UGAA’s interests in all such warranties and shall take no action nor
commit an act or omission that renders such warranties void or voidable. UGAA
is free to further assign warranties, as its needs require.
r.
Certifications of absence of asbestos, formaldehyde, and lead from
installation. CM shall submit certifications by CM, its Subcontractors, and all
suppliers of materials of the absolute absence of asbestos, formaldehyde, and
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lead-containing materials from the Work – or, in the case of Subcontractors and
suppliers, their respective portion thereof. Certifications of CM and
Subcontractors shall be provided in the forms the substance of which are
provided as Supplements S and S1 respectively.
s.
Training. CM shall conduct comprehensive, in-person, formal training of all
UGAA and UGA-related persons and entities designated by ADR in matters of
operation and maintenance of all systems, assemblies, structures, and equipment
installed as part of the Work; and CM shall separately certify completion of such
training, specifying the location and subject matter of the training and the UGAA
or UGA-related persons attending. Training for technical systems, assemblies,
and equipment shall be conducted by persons knowledgeable in each such
system, assembly, etc., and empowered to speak authoritatively in behalf of the
pertinent Subcontractor, supplier, or manufacturer. Training shall be scheduled
at times designated by the ADR. CM shall create digital videos of all training;
and shall transmit digital copies to ADR. Completion of the foregoing training
and transmission of digital video recordings of same is a condition precedent to
Realized Substantial Completion of the Work.
t.
Waste Management Plan update – as required under ¶ XV(P)(3) herein.
R.
Correction of Punchlist Work. CM shall promptly (but in no case longer than thirty days after
the Realized Date of Substantial Completion) complete all Punchlist Work and give notice
thereof to the ADR.
S.
Final Completion. Date of Final Completion is the date on which the Project is actually
complete and CM has fully and completely satisfied all Closeout Obligations and the following
conditions precedent to Final Payment:
1.
Punchlist and warranty Work complete. CM has completed all Punchlist Work and
known warranty Work to the satisfaction of the ADR;
2.
Closeout Obligations. CM has demonstrated its satisfaction of all Closeout Obligations;
3.
Discharge of liens and Bond claims. CM has demonstrated that any and all outstanding
claims of lien, liens, and Bond claims filed or asserted by CM or Subcontractors of any
tier, have been discharged and cancelled as a matter of record with the clerk of the
Superior Court in every county in which claims or liens were filed;
4.
Delivery of furniture and equipment. CM has delivered (upon request by ADR) to a
location in Athens, Georgia designated by ADR all furniture, unused materials, and
equipment;
5.
Final Payment Application. CM has submitted a Final Payment Application in
substantially similar form to that required for Interim Payment Applications. Before
submitting its Final Payment Application, CM shall complete the following:
a.
CM Waiver and Release Upon Final Payment. In the form provided as
Supplement G;
b.
CM Final Affidavit. CM shall certify under oath, in content and form consistent
with that supplied as Supplement H;
c.
Return of Project-related documents. If requested by ADR, CM shall deliver to a
place designated by the ADR all printed and electronic copies of Project-related
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documents and files, as required under Article XIV, except for the archival copy
permitted under that Article; and
d.
Subcontractor Waivers and Releases Upon Final Payment. In the form provided
in Supplement I for each Subcontractor whose Waiver and Release is required
under ¶ V(H)(4).
T.
No implied acceptance of Work. UGAA’s acknowledgement of Realized Date of Substantial
Completion, its receipt of the Certificate of Occupancy or other Closeout Materials, its partial
and entire release of retainage, or its issuance of Final Payment to CM shall not be deemed to
imply acceptance of the Work; nor shall they relieve CM of its duty to fully perform its
obligations under the Contract Documents. UGAA will notify CM in writing of final acceptance
of the Work at the time of Final Payment.
U.
UGAA’s post-completion right to demand correction of Defective Work. In addition to all its
other obligations under this Agreement, CM warrants that, for a period of twelve months,
beginning the Date of Final Completion, it shall, within seven days of issuance of a request by
UGAA, cure and correct any and all Defective Work and perform all other warranty obligations
hereunder. UGAA’s right to obtain CM’s correction of Defective Work during this one-year
period is in addition to, and not exclusive of, any other rights and remedies UGAA has under
Law, this Agreement, or under related warranties.
1.
This one-year additional warranty period does not: (a) limit or reduce warranty periods
of greater length required under the Contract Documents with respect to certain
elements of the Work; (b) shorten or reduce any statutory periods of limitation or repose;
(c) shorten or limit any longer warranty period provided by manufacturers or suppliers
of materials and systems; or (d) limit the period in which UGAA is entitled to CM’s
correction of Defective or Noncompliant Work.
2.
For Work completed and accepted on or before the Realized Date of Substantial
Completion, warranty periods shall begin on the Realized Date of Substantial
Completion.
3.
For Work that is either incomplete or Noncompliant on the Realized Date of Substantial
Completion, warranty periods shall begin on the day on which the particular incomplete
or Noncompliant Work is actually completed and corrected to the satisfaction of UGAA
and shall continue for the full term thereafter.
4.
CM shall conduct an inspection of the Work on the eleven-month anniversary of the
Realized Date of Substantial Completion (or the first business day following it) and
shall, within five days after that inspection, submit a written report of the findings to
ADR and Design Professional for their approval. CM shall correct Noncompliant Work
or Defective Work within fourteen days of that inspection.
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ARTICLE IV – UGAA’S OBLIGATIONS AND DUTIES
A.
Payment. UGAA shall pay amounts due CM under the terms of this Agreement for timely
performance of the Work, payments being proportionately limited in all cases by progress of the
Work.
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B.
C.
UGAA-provided information. UGAA shall provide CM, upon request, with the following:
1.
Project program and preliminary studies, if any, prepared within two years preceding
the Effective Date of this Agreement, pertaining to existing structures involved in the
Work;
2.
Access to a complete set of Contract Documents in digital form;
3.
Information necessary for CM’s timely filing of a statutory Notice of Commencement,
the form of which is attached as Supplement K;
4.
If incorporated herein pursuant to ¶ I(O), engineer-certified Geotechnical reports and
written studies, if any, issued in final form within the two years preceding the Effective
Date of this Agreement involving relevant aspects of the existing condition(s) of the site
and the Property;
5.
For Projects involving new building construction and/or site improvements, site
surveys, if any, prepared within the two years preceding the Effective Date of this
Agreement; and
6.
Access to those documents in UGAA’s possession that are incorporated, or referred to,
in the Supplements, to the extent applicable to CM hereunder.
Testing. Subject to CM’s obligations under Article III for re-testing, correction of Defective
Work, etc., and except where CM is expressly required by the Contract Documents to provide
testing, UGAA shall provide the services of independent testing consultants and technicians
(“Testing Consultants”) to perform initial tests of systems and materials indicated in the
Contract Documents.
1.
CM shall coordinate the Work so as to facilitate testing services by UGAA’s Testing
Consultants.
2.
CM shall notify UGAA’s Testing Consultants and the ADR at least two business days in
advance of any compaction tests, foundation inspections, concrete pours, or any other
testing, sampling, or observation required by the Contract Documents. CM shall prepare
and store test cylinders (and other testing devices and accessories) as instructed by
UGAA’s Testing Consultants.
3.
Although UGAA shall pay for the costs of initial, routine tests performed by UGAA’s
Testing Consultants, CM is liable for all costs related to or arising out of all subsequent
testing and retesting in cases where: (a) CM provides inadequate notice of the need for
testing or collection; (b) CM schedules tests or inspections by UGAA’s Testing
Consultants, Design Professional, governmental officials, or others but the Work is
insufficiently prepared for testing and inspection; (c) the Work, as tested, fails to comply
with the Contract Documents; (d) subsequent acts or omissions of CM or Subcontractors
of any tier result in possible damage to, or noncompliance of, the Work, requiring or
justifying additional testing to confirm compliance with the Contract Documents; or (e)
retesting is required for any reason caused in whole or in part by CM. UGAA shall
deduct from the GMP by unilateral Change Order an amount equal to the sum of all fees
and costs incurred by UGAA for retests and other expenses and fees related to such
testing and retesting. In no case shall retesting fees, costs, and expenses be paid by
reallocation of funds from CM Contingency Account if such fees, costs, or expenses are
attributable to (and collectable by CM from) a Subcontractor
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D.
UGAA communications not limited. UGAA or its representatives may communicate freely
with any person or entity, including Subcontractors, Sureties, insurers, inspectors, or CM’s
employees on any subject related to CM, Subcontractors, the Work, or the Project, which
communication shall not be deemed to be interfering or otherwise wrongful. UGAA and UGA
retain the right to enter the Project site at any time and for any reason.
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ARTICLE V – PAYMENT
A.
Preconstruction-phase billings and payment.
1.
Preconstruction Schedule of Values. CM shall submit for UGAA approval a schedule of
values (“Preconstruction Schedule of Values” or “PCSoV”) containing line-items for: (a)
CM Preconstruction Fee; (b) CM Preconstruction Overhead Costs (with constituent lineitem sub-costs as set forth in Supplement N); (c) any anticipated Component Change
Orders (with their respective constituent line-items); (d) CM Construction Fee; (e) CM
Construction Overhead Cost (with constituent line-item sub-costs as set forth in
Supplement O); and (f) estimated Cost of the Work (with constituent line-items). The
sum of all the foregoing shall not exceed the Stated Cost Limitation set forth preceding
Article I above. The initial PCSoV shall be submitted upon the occurrence of the earliest
of the following events: (1) presentation of Schematic Design by CM; (2) proposal of the
initial Component Change Order covering Work to be performed on-site; or (3) proposal
of the GMP Change Order.
2.
Preconstruction-phase Payment Applications. On or before the day of each month
specified in ¶ I(N), CM shall submit to ADR electronic and print drafts of sequentially
numbered and dated proposed Preconstruction Payment Applications, covering
compliant Preconstruction Services performed during the monthly period ending on the
twenty-fifth day of the subject month, with reductions for other withholding as
indicated in this Agreement.
3.
Support information. As a condition precedent to UGAA’s obligation to pay amounts
applied for, CM shall provide the additional information set forth in ¶ I(N) with each
Preconstruction Payment Application (as well as any other documents requested by
ADR to substantiate a Payment Application). Payment Applications submitted in final
form by CM shall reflect comments received from ADR with respect to draft proposed
applications.
4.
Method of calculating Preconstruction Payment Applications. The total payment for
Preconstruction Services will not exceed the sum of products obtained by first adding
the costs and expenses incurred that are also authorized within the CM Preconstruction
Overhead Costs as established in Supplement N; then adding to that sum the product of
multiplying the CM Preconstruction Fee times the percentage multiplier of completion
of Preconstruction Services (e.g., percentage multiplier for 22% completion is “.22”); then
subtracting from that subtotal sum amounts to be withheld or deducted by UGAA (for
undocumented amounts applied for and as otherwise provided in this Agreement); and
then subtracting from that subtotal remainder the total of amounts previously paid to
CM by UGAA for CM Preconstruction Fee and CM Preconstruction Overhead Costs on
this Project.
5.
Further limitation on Preconstruction billing and payment. The formula established in
this ¶ V(A) notwithstanding, in all cases UGAA’s obligation to pay is limited to actual
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proportionate progress of the Work – as determined by multiplying the GMP times the
percentage of overall completion of the Work (as determined in good faith by UGAA),
less backcharges, setoffs, and other withholding and deductions permitted hereunder.
Moreover, UGAA is, at all times, permitted to withhold payment from CM amounts
determined in good faith by UGAA to be required for UGAA to pay remaining contract
obligations and to complete the Services and the Work using Separate Contractors,
should CM’s performance be discontinued.
B.
Construction-phase billings and payment.
1.
2.
Schedule of Values. Concurrent with proposal of any pre-GMP Component Change
Order and concurrent with CM’s proposed GMP Change Order, CM shall submit for
UGAA approval a schedule of values containing line-items a detailed Scope of Work
that separately itemizes each element of the Work with an installed value greater than
$999.99 (or that is the subject of a section in the Project Specifications), assigning
remaining scope items to line-item categories to which they are most logically related
(collectively, “Schedule of Values”).
a.
The then-current line-items from the PCSoV shall be incorporated as separate
line-items in the Schedule of Values, which shall also include categories for: (i)
Cost of the Work (with constituent line-items as provided in this Article); (ii) CM
Construction Fee; and (iii) CM Construction Overhead Costs (with constituent
line-items consistent with those established in Supplement O).
b.
Constituent line-items within the Cost of Work category shall be organized by
trade, Scope of Work, and generally in accordance with the divisions and
sections of Work established in the specifications of the Construction Documents.
Subject to ¶¶ V(B)(4)(a) and (d) herein, the CM may adjust individual line-items
to reflect actual costs incurred in performing the Work provided that other lineitems are commensurately adjusted in order to maintain the then-current GMP.
That said, adjustments that involve removing line-item costs from one division of
the Specifications in the Construction Documents and increasing line-item costs
in another division of the Specification must be approved in advance by ADR
before the modified Schedule of Values can become the basis for Payment
Applications as modified.
c.
The sum of the values of all line-items in the Schedule of Values shall equal the
Stated Cost Limitation – or in the case of a proposed GMP Change Order, the
GMP (which Schedule of Values shall also include a line-item for the ADRapproved amount for the CM Contingency Account within the Cost of Work
category).
d.
CM shall substantiate its proposed Schedules of Values by providing legible and
complete copies of bids, proposals, Subcontracts, back-up and other documents
demonstrating proper allocation of line-item costs. Notwithstanding the
foregoing, UGAA may order CM’s adjustment of line-item values according to
and commensurate with the actual costs, as estimated in UGAA’s good faith
opinion.
Interim (post-GMP) Payment Applications. Once approved, the Schedule of Values
shall be incorporated in the GMP Change Order and in all subsequent Payment
Applications, with the Schedule of Values being amended from time-to-time, when
approved by ADR, to reflect Change Orders and re-allocations of the CM Contingency
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Account as provided in this Article V. The Schedule of Values shall be the basis for
subsequent Payment Applications and their evaluation on a line-item basis.
a.
Cost of the Work. Each Cost of Work line-item shall indicate the estimated
installed price to be paid for all CM’s costs to perform and install the Work that
is related or attributable to that particular line-item, which are specifically
limited to include only the following:
i.
Wages and salaries actually paid for on-site labor and CM Services not
exceeding the prevailing rate, including only labor-force salaries (limited
to approved Self-Performed Work), hourly wages, statutory employment
taxes, and retirement contributions and health insurance costs (in those
cases where those contributions and insurance costs were paid by the CM
(or Subcontractor) to a given employee continually for a period of at least
three months preceding the Effective Date of this Agreement). Wages and
salaries shall not exceed those set forth in Supplement O – and cannot
include increased wages, discretionary awards or bonuses of any kind,
costs of private use of company vehicles, or other perquisites;
ii.
Cost of materials, supplies, and equipment installed as part of the Work
or wholly consumed in the performance of the Work on-site; further
including the costs of permitting, initial testing, and initial inspections,
where not provided by UGAA;
iii.
Sales and use taxes imposed by government in connection with the
performance of the Work;
iv.
Subcontract Costs as set forth in written Subcontracts, approved by
UGAA, not to exceed line-item amounts for each as set forth in the
Schedule of Values – such costs not to receive further markup;
v.
Self-performed Work, where approved in advance by ADR, indicated in
the Schedule of Values on a line-item basis by type of Work.
vi.
Rental charges. When approved by ADR in advance, Cost of the Work
may include: (i) rental charges of all necessary equipment used on-site
(exclusive of hand tools) including only the costs of loading and
unloading, installation, dismantling, removal, cost of lubrication, and
transportation; and (ii) labor of operators (limited as set forth in the
preceding subparagraph 2(a)(i)). Rental charges may not include repairs,
insurance, or other costs not expressly allowed in this paragraph. Rental
rates may not exceed more than 80% of the rate set forth in the latest
addition of the “Compilation of Nationally Averaged Rental Rates for
Construction Equipment” of the Associated Equipment Distributors; and
vii.
Demolition and stabilization costs attributable and necessary to
performance of the Work – but not attributable to problems with CM’s
performance of the Work or its failure to fully perform in accordance with
this Agreement.
CM Contingency Account. The amount unallocated from the CM Contingency
Account shall appear as a discrete line-item in each Payment Application
Schedules of Value. Reallocated funds from the CM Contingency Account shall
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be reflected in subsequent Payment Applications Schedules of Values as
provided in ¶ V(B)(4)(d).
Express exclusions to Cost of the Work. In no case shall Cost of the Work
include food, meals, repairs to equipment, vehicle maintenance and registration,
use of vehicles not in performance of the Work, fines, penalties, lost or stolen
equipment, undocumented costs, deductible costs pertaining to insured losses,
capital expenses, legal fees, cost to discharge liens, re-testing and re-inspection
costs, profit sharing, commissions, costs due in whole or in part to CM’s
negligence, default, oversight, or lack of due care, costs of cleaning, temporary
facilities, field office, safety, security, and other General Conditions and other
items falling within the scope of CM Construction Overhead Costs (as
established in ¶ II(C)(2)(e)), unallocated CM Contingency Account, or CM
Construction Fee.
b.
3.
CM Construction Overhead Costs. CM Construction Overhead Costs indicated
in the information preceding Article I is maximum amount that CM will be
entitled (exclusive of CM Construction Fee) for reimbursement for all temporary
facilities, Project Administration, superintendence, field office, home office,
communications, safety, security, cleaning, and other General Conditions and
overhead costs and expenses incurred by CM in the complete performance of the
Work, allowable CM Construction Overhead Costs being only items those listed
above in this subparagraph and in Supplement O (and as further limited
therein) – payment of which CM Construction Overhead Costs is further limited
proportionately at any given time to the percentage of CM’s actual completion of
the Work. CM Construction Overhead Costs exclude, however, food, meals,
repairs to equipment, vehicle maintenance and registration, use of vehicles
unrelated to the Work, fines, penalties, lost or stolen equipment, undocumented
costs, deductible costs pertaining to insured losses, capital expenses, legal fees,
cost to discharge liens, re-testing and re-inspection costs, profit sharing,
commissions, other amounts not expressly included in Supplement O, any costs
due in whole or in part to CM’s negligence, default, oversight, or lack of due
care, or any Cost of Work indicated above.
Payment Application. On or before the day of each month specified in ¶ I(N), CM shall
submit to ADR and Design Professional electronic and print drafts of sequentially
numbered and dated proposed draft Interim Payment Application, covering compliant
Work suitably performed and materials suitably stored and secured off-site (where
approved in advance in writing by the ADR consistent with this Article) during the
monthly period ending on the twenty-fifth day of the subject month, with reductions for
retainage and other withholding as indicated in this Agreement.
a.
As a threshold condition precedent to UGAA’s obligation to pay amounts
applied for, CM shall provide the additional information set forth in ¶ I(N) with
each Interim Payment Application (as well as any other documents requested by
ADR to substantiate a Payment Application, e.g., updated as-built information,
test results, observation reports, daily reports, etc.). Payment Applications
submitted in final form by CM shall reflect comments received from ADR on the
draft.
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4.
b.
CM’s Payment Applications are to be submitted using AIA Forms G702 and
G703, submittal of which does not relieve CM of its obligation to also provide a
sworn CM Interim Affidavit (in the form supplied as Supplement E).
c.
With respect to any amount applied for (including amounts pertaining to PCO’s,
and Change Orders), ADR may, but is not required to, demand thorough,
legible, and valid documentation of every component of Cost of the Work and
CM Construction Overhead Costs, with documentation including, without
limitation: (a) certified payroll records showing name, classification, date, daily
hours, total hours, rate, and extension for each laborer, Project Manager,
Superintendent, or other manager or employee of CM or its Subcontractors; (b)
equipment type and model, dates of use, daily hours, total hours, rental rate, or
other rates, operator costs and hours, and other related costs; (c) invoices
showing payment for specific materials, prices, extension, and delivery costs; (d)
daily records of waste removed from the Project site with proof of lawful deposit
in landfills or other lawful means of disposal; (e) engineer-certified
measurements of excavations, pilings, fill work, and any other civil earthwork,
rock removal, etc. for which compensation is (or may be) based upon volume; (f)
transportation records for materials, including prices, loads, and extensions; and
(g) any other information indicated in ¶ I(N). CM’s provision upon request of the
foregoing is a condition precedent to UGAA’s obligation to pay.
Method of calculating amounts applied for in Interim Payment Applications. The total
payment applied for at any given time will not exceed the sum of products obtained by
first applying Reallocation Authorizations (issued in accordance with ¶ V(B)(4)(d) on a
line-item basis to the Cost of the Work (or line-item Change Orders as the case may be);
then multiplying each individual Cost of the Work line-item and Change Order line-item
in the Schedule of Values times the percentage multiplier of completion (e.g., percentage
multiplier for 22% completion is “.22”) of the Work described in that line-item (as
determined and approved in good faith by UGAA, and as substantiated by
documentation acceptable to ADR, taking into account materials suitably stored (as
approved in accordance with this Article)) – thus, obtaining the subtotal sum of the
products; then adding to that subtotal sum permit-related fees, if any, paid by CM that
are reimbursable hereunder; then adding to that subtotal sum the product of multiplying
the CM Construction Fee times the percentage multiplier of completion of the Work;
then adding to that subtotal sum the sum of authorized CM Construction Overhead
Costs incurred for the subject period (as that sum is further limited by the product obtained
by multiplying the CM Construction Overhead Costs times the percentage multiplier of
completion of the Work (as substantiated by documentation acceptable to the ADR)); then
subtracting from that subtotal sum the amount to be withheld as retainage (in
accordance with this Article); then subtracting from that subtotal remainder amounts to
be retained or otherwise withheld or deducted by UGAA (for undocumented amounts
applied for and as otherwise provided in this Agreement); and then subtracting from
that subtotal remainder the total of amounts previously paid to CM by UGAA on this
Project, exclusive of payments for CM Preconstruction Fee and CM Preconstruction
Overhead Costs.
a.
Payments limited to progress. The formula established in the immediately
preceding paragraph notwithstanding, in all cases UGAA’s obligation to pay is
limited to actual proportionate progress of the Work – as determined by
multiplying the GMP times the percentage of overall completion of the Work (as
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determined in good faith by UGAA), less retainage, backcharges, setoffs, and
other withholding and deductions permitted hereunder. UGAA is, at all times,
permitted to withhold payment from CM amounts determined in good faith by
UGAA to be required for UGAA to pay remaining contract obligations and to
complete the Work using Separate Contractors, hypothetically presuming CM’s
discontinuance of performance and the Work.
b.
c.
Retainage. UGAA shall retain 10% from amounts otherwise due to CM for Work
completed, materials stored, CM Construction Fee, and CM Construction
Overhead Costs from each progress payment until Final Payment.
i.
Once the Work is at least 50% complete, UGAA may, but is not required
to, waive its right to retain additional amounts from future amounts
applied for if: (A) the Work has progressed in accordance with the Project
Schedule and appears to UGAA likely to be completed within the
Contract Time; (B) no condition of CM default or breach exists; and (C)
the Work-in-Place conforms with the Contract Documents.
ii.
If UGAA elects to waive retainage under the immediately preceding subparagraph, it may, at any time, and for any reason, revert to retaining
10% from all amounts due to CM for Work performed to-date.
iii.
UGAA will release retainage as part of Final Payment, i.e., only after: (A)
the Work is complete; (B) Punchlist Work is complete; (C) Closeout
Obligations have been fully satisfied; (D) no claims of lien or other claims
have been filed against UGAA, the Board of Regents, UGA, the Project, or
the Property that CM has not fully and finally discharged as of public
record; (E) no claims have been made against the Bonds; and (F) CM has
obtained and supplied to UGAA a written Consent of Surety.
iv.
Upon timely realization of Substantial Completion, UGAA may, but is
not required to, release part or all of the retainage withheld to-date. CM’s
provision of a Consent of Surety is a condition precedent to any such
release.
v.
Within five days of its receipt, CM shall release to Subcontractors their pro
rata share of retainage released to CM by UGAA – unless CM shall have
given written, formal notice to UGAA of some contractually justifiable
reason (acceptable to ADR) to withhold release of retainage from
Subcontractor – in which case UGAA may continue to withhold that
portion of the retainage. Only UGAA may hold retainage on
Subcontractor amounts. CM shall not hold retainage for Subcontractor
Work performed.
Materials stored off-site. UGAA may, but is not required to, permit CM to apply
for payment for materials securely stored off-site if CM provides advance written
verification of the following: (i) the materials stored conform to the requirements
of the Contract Documents and are, where applicable, identified by serial
number and labeled as the property of UGAA; (ii) CM has provided the ADR
with photographs of materials, as stored and labeled; (iii) the storage facility is
insured as required in Article XII for Subcontractors; (iv) CM and storage facility
operator have agreed in writing that UGAA may take possession of the materials
at-will and without consent of CM (and CM has provided copies of that
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agreement to the ADR); (v) the materials stored are secured and separated from
other materials stored at the facility, and materials are clearly labeled as
belonging to UGAA; (vi) all of the foregoing are provided by CM at no cost to
UGAA; and are (vii) accepted in advance by UGAA in writing. If UGAA is
deprived of access or use of the materials stored, and damaged in any way as a
result, UGAA is authorized to issue a unilateral deductive Change Order,
reducing the amounts then due to CM and the GMP by an amount equal to that
which UGAA paid for the materials plus any costs incurred by UGAA, including
but not limited attorneys’ fees, as a result of the deprivation, loss, or damage.
d.
Reallocations from CM Contingency Account. The CM Contingency Account
shall consist of reserve funds (in amounts approved by ADR) intended for
possible reallocation to the Cost of the Work in situations in which the Scope of
Work is changed and where that change could not have been reasonably
anticipated at the time of the GMP Change Order (or subsequent Change Orders,
as the case may be) and was not due in whole or in part to CM’s failure to
perform or satisfy its obligations hereunder.
i.
Reallocation Authorizations Discretionary. CM may reallocate funds
from the CM Contingency Account to line-items within the Cost of the
Work, if e-mail notice of the reallocation is sent to ADR in advance. No
reallocation of amounts $5,000.00 or greater may occur without ADR’s
prior written consent by e-mail or otherwise. ADR, in its discretion, may
disallow reallocations for any reason. In no case shall funds from the CM
Contingency Account be reallocated in order to pay for correction of
Defective Work, untimely performance of the Work, or any other fines,
costs, damages, fees, etc. attributable to (and collectable by CM from) a
Subcontractor.
ii.
Reallocation does not affect GMP. Reallocation will not modify the
GMP. To the extent that reallocation from the CM Contingency Account
is the exclusive source of funding for certain Change Order Work, ADR
may issue a Change Order indicating that changed Work, but the GMP
will not be increased by that Change Order. Where reallocation supplies
funding for part, but not all, of certain Change Order Work, increases in
the GMP in the resulting Change Order will include only those amounts
not funded by reallocation from the CM Contingency Account. A
Reallocation Authorization need not be accompanied by a Change Order
if the reallocation does not fund a change in Scope of Work, Contract
Time, Project Schedule, or other change for which a Change Order is
required under Article VIII.
iii.
Effect on Payment Applications. Payment Applications subsequent to a
Reallocation Authorization shall reflect that reallocation, with the
reallocated amount modifying the line-item Cost of the Work (or Change
Order as the case may be) to which reallocated funds were applied,
denoting the modified line-item by asterisk or other graphic device
acceptable to ADR.
iv.
Unused contingency. Unused amounts remaining in the CM
Contingency Account will be deducted by unilateral Change Order from
the GMP on or about the Realized Date of Substantial Completion – or
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when, in the judgment of ADR, it appears likely that remaining CM
Contingency Account funds will not be reallocated – whichever occurs
earlier. Nothing in this provision diminishes or otherwise abrogates CM’s
assumption of the risk that it must fully and timely perform the Work
within the GMP and without reallocation of CM Contingency Account
funds.
5.
Payment Applications to separately reflect executed Change Orders and other lineitems. Subject to requirements set forth in ¶ V(B)(4)(d), Payment Applications shall
reflect only those Change Orders executed by UGAA at the time of the subject
Application. For purposes of Payment Applications, unless otherwise requested by the
ADR, each duly executed Change Order and unilateral Change Order issued during the
period covered by the Payment Application shall be listed as a separate line-item at the
end of the CM’s line-item Schedule of Values contained in the Payment Application.
Force Account amounts justified under Article VIII, requested by CM, and approved by
ADR in advance shall also be indicated as separate line-items in the Payment
Application for the period in which approval was obtained and the cost incurred – and
for each subsequent period. Similarly, CM Construction Overhead Costs, CM
Construction Fees, and the unallocated remainder of the CM Contingency Account shall
be indicated as discrete line-items in each Payment Application.
C.
Timing of progress payments. Subject to other limitations and conditions established herein,
UGAA shall pay amounts due within thirty days after UGAA’s receipt of a timely and complete
Payment Applications in final form. Non-draft Preconstruction and Interim Payment
Applications shall be deemed to be received on the day they are received by the ADR with: (1)
an amount applied for that is justified by progress and consistent with this Agreement; and (2)
the requisite affidavits, certifications, and back-up documentation. In no case shall draft
Payment Applications receive accelerated review if they are not received by the ADR by the day
of the month stated in ¶ I(N) or are not promptly submitted in final form after comments are
issued by UGAA and/or Design Professional. In no case shall more than one certified Payment
Application be accepted in a given month, without prior written approval of ADR.
D.
Proper disbursement. Payments by UGAA shall in all cases be applied by CM solely to
accounts pertaining to this Project. Before CM may allocate funds paid for its own use and
purposes, it must first disburse amounts received from UGAA to all Subcontractors whose
Work is included in amounts applied for by CM.
E.
Payment not indicative of acceptance of Work. Except as provided in ¶ III(T), UGAA’s
payments to CM shall not be construed as UGAA’s acceptance of the Work.
F.
UGAA’s right to withhold payment. UGAA may withhold from payments otherwise due CM
the sum of amounts that UGAA reasonably believes it might be exposed to, or liable for, due to:
Work found to be defective or incomplete for which CM has already been paid; CM’s failure to
correct Defective Work; CM’s untimely performance; CM’s failure to provide sufficient skilled
workers and proper materials so as to achieve progress in accordance with the Project Schedule;
Project-related claims by nonparties; liens filed by CM or Subcontractors of any tier; notices and
claims by Subcontractors asserting CM’s failure to pay; CM’s failure to provide certifications
when requested and required hereunder; discovery of past overpayments to CM by UGAA;
overpayments resulting from previous incorrect Payment Applications; circumstances justifying
UGAA’s declaration of CM’s default; uncorrected damage to existing Work, structures, and/or
the Property; damage to UGAA Equipment or the work of Separate Contractors; back-charges
for costs incurred by UGAA to correct CM’s Defective Work-in-Place, etc.; or other amounts
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pertaining to CM’s failure to satisfy its obligations hereunder. UGAA has no obligation to pay
amounts applied for unless the Payment Application is timely submitted and it includes legible,
credible documentation proving that CM has timely performed the Work for which it seeks
payment, which documentation is a condition precedent to UGAA’s obligation to pay. Whether
or not otherwise requested herein, ADR may at any time require additional information,
documents, and data to substantiate the amounts applied for.
G.
1.
Notice of withholding. UGAA will give notice to CM by e-mail or otherwise of its
withholding of amounts applied for and its reason for it. If CM objects to the
withholding, it shall, within five days of issuance, provide to the ADR a formal written
notice of objection (“Notice of Objection”), detailing its reason(s) for objection, and citing
specific Contract Document provisions that support CM’s objection – otherwise, CM
waives that objection.
2.
UGAA’s recovery of overpayments and backcharges. If amounts otherwise due and
owing to CM on this Project are insufficient to cover the withholding to which UGAA is
entitled under this Article, UGAA shall issue a unilateral Change Order reducing the
GMP by the amount required to correct overpayments or to cover the conditions
justifying withholding; and CM shall immediately repay amounts required to conform
therewith. In no case shall UGAA’s withholding of payment, or obtaining recovery of
past overpayment(s), excuse CM’s timely payment to its Subcontractors or its
uninterrupted performance of the Work. Retainage shall not be considered when
calculating repayment to UGAA, and repayments shall not be deemed to reduce
UGAA’s right to hold retainage.
3.
Other projects involving the Parties. If CM is entitled to payment from UGAA on other
projects, and if amounts due to CM on this Project are insufficient to cover amounts due
to UGAA from CM for repayments, backcharges, or other CM liability pertaining to this
Project, CM hereby agrees that UGAA may set-off and reduce amounts due to it on
those other Projects as needed to satisfy UGAA’s demand for coverage of exposure as
provided in this paragraph; and CM waives any claim on the other project(s) pertaining
to this provision.
CM’s payments to Subcontractors. CM’s timely payment of Subcontractors is a material
performance obligation of CM and a condition precedent to UGAA’s obligation to pay.
1.
Obligation to confirm validity of Subcontractor invoices. CM must take all affirmative
steps necessary as a fiduciary to UGAA to assure that amounts invoiced by
Subcontractors are valid, that they are supported by legible verifiable documentation,
that they are consistent with actual progress of the Work, and that Subcontractors have
correctly applied as a priority payments previously received to lower-tier Subcontractors
for whose Work payment was issued. CM shall include Subcontractor documentation as
back-up for CM’s Payment Applications. CM’s submittal of Payment Application for
Subcontract Work shall be deemed a representation by CM that the amounts invoiced
for that Subcontract Work are legitimate and authorized herein.
2.
No Payment Application to include amounts to be withheld from Subcontractors. CM
may not apply for payment for Subcontractor Work that is incomplete, defective, or for
which a Subcontractor will not be paid by CM within ten days of CM’s receipt of
payment from UGAA of part or all of the amount applied for, regardless of CM’s reason
for the proposed withholding from the Subcontractor.
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H.
3.
Repayment of Subcontractor-related overpayment by UGAA. If CM becomes aware
that it has applied for payment for Subcontract Work that is defective or incomplete, CM
shall: (a) immediately notify the ADR and Subcontractor of that fact by e-mail; and (b)
reduce accordingly amounts applied for in subsequent Payment Applications (or, at
election of UGAA, refund to UGAA the overpayment).
4.
UGAA’s right to make payment directly to Subcontractors. If UGAA has reason to
believe that CM has not timely and fully paid amounts due to one or more
Subcontractors for Work performed or that CM cannot or will not pay Subcontractors
amounts applied for, UGAA may, but is not required to, upon e-mail notice to CM, pay
the Subcontractor(s) directly (or, in UGAA’s discretion, by joint check), thereupon
issuing a deductive unilateral Change Order, reducing the GMP by an amount equal to
the sum of UGAA’s direct (or joint) payment(s) to the Subcontractor(s) plus related (prorata) CM Construction Fee and CM Construction Overhead Costs plus UGAA’s related
damages, costs, and attorneys’ fees incurred by UGAA due to CM’s nonpayment.
UGAA’s payment to Subcontractor by joint check, or direct payment, shall not be
deemed to constitute interference by UGAA in CM’s contractual relations, or those of its
Subcontractors.
Final Payment. Final Payment is due not more than thirty days after UGAA has received, in the
form and with the content required, the following:
1.
CM’s Final Payment Application, in a form consistent with those required for Interim
Payment Applications, adjusted to reflect the terms herein pertaining to Final Payment;
2.
A sworn CM Waiver and Release Upon Final Payment (in the form supplied as
Supplement G);
3.
A sworn CM Final Affidavit (in the form supplied as Supplement H);
4.
Subcontractor Waivers and Releases Upon Final Payment (in the form supplied as
Supplement I) sworn and executed by: (a) all mechanical (including HVAC and
conditioned air), electrical, plumbing, low voltage, earthwork, cast-in-place concrete,
roofing, building enclosure systems, and structural steel Subcontractors; (b) all
Subcontractors of any tier providing rental equipment used on the Project; (c) all
Subcontractors of any tier who have issued a Notice to Owner, Notice to Contractor, or
other statutory notice pertaining to the Project; (d) all other Subcontractors of any tier for
whom the ADR has requested interim waivers; (e) all other Subcontractors of any tier
who have asserted, or threatened to assert, Project-related claims or demands of any
kind, including without limitation claims of lien or claims against a Bond; and (f) any
and all other Subcontractors or vendors who were, or are to be, paid for labor, materials,
or other Work in amounts exceeding the threshold established in ¶ I(N)(4);
5.
Sworn documents demonstrating that all claims of liens or other encumbrances on the
Property or the improvements to it have been discharged, satisfied, or otherwise
cancelled by CM as of record in the office of the clerk of the Superior Court in each
county in which liens or demands have been filed or otherwise asserted – and that
demands on Bonds or rights thereto have been waived and/or released in writing;
6.
Verification and sworn confirmation that CM has completed all Punchlist Work to
UGAA’s satisfaction upon final inspection of the Work;
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7.
Verification and sworn confirmation that CM has completed, to UGAA’s satisfaction, its
Closeout Obligations set forth in Article III, and has submitted, to UGAA’s satisfaction,
all Closeout Materials;
8.
Final Certificate(s) of Occupancy issued by the appropriate governmental authority(ies)
having jurisdiction over the Project;
9.
Upon request of ADR, printed and digital copy of all Project-related cost and accounting
records as required for UGAA to perform a final audit (“Final Accounting Materials”);
and
10.
Executed Consent of Surety to Final Payment.
I.
Conditions precedents to Final Payment. Satisfaction of each of the requirements in the
immediately preceding sub-paragraphs is a condition precedent to UGAA’s obligation to pay
amounts applied for or to release retainage.
J.
Effect of Final Payment Application. In addition to other waivers and releases required
hereunder, CM’s acceptance of release of retainage and/or acceptance of payment responsive in
whole or in part to its Final Payment Application shall operate as a waiver and release by CM of
all claims it has against UGAA, UGA, and/or the Board of Regents.
K.
Issuance of Final Payment not a release or waiver by UGAA. UGAA’s issuance of Final
Payment shall not relieve CM of its obligation to fully perform under this Agreement, nor shall
it be construed as a waiver of any right UGAA has under this Agreement or under Law to
obtain CM’s full performance of the Work or its correction of Defective Work or otherwise
Noncompliant Work.
L.
Unit Prices. Unit Prices specified in Supplement C hereto are the maximum price per unit of
material that UGAA will pay for CM’s installation of a specified material in quantities differing
materially from those required in the Contract Documents.
M.
1.
As a condition precedent to UGAA’s obligation to pay for materials provided on a Unit
Price basis, CM shall keep detailed, contemporaneous records (in the units specified and
as required under Article VIII to substantiate changes in GMP) of quantities of materials
delivered, excavated, supplied, installed, or otherwise used – or waive compensation
therefor.
2.
The Unit Prices, themselves, shall not be subject to change, except by express Change
Order.
3.
Unit Prices include all sums for payment, reimbursement, compensation, or any other
cost of type involved in performance and administration of the Work involved in
performing Unit Price Work. The initial CM Construction Fee and CM Construction
Overhead Costs shall be deemed to take into account all overhead, profit, and
administration costs with respect to performance of Work covered by Unit Prices, and
shall not be increased as a result of application of Unit Prices.
4.
Unit Prices shall apply equally to material additions or deductions in quantities.
Allowances. Although allowances may be used in calculation of a Preconstruction Budget, no
allowances may be used in the Schedule of Values incorporated into the GMP Change Order, or
thereafter, except with the prior written approval of UGAA (which can be withheld for any
reason).
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N.
UGAA option to convert GMP to fixed Contract Price. Upon agreement of CM and UGAA,
UGAA may issue a Change Order to convert the GMP to a fixed Contract Price. Upon execution
of a Conversion Change Order (Supplement B3), the fixed Contract Price shall equal the thencurrent GMP – minus amounts remaining unallocated in the CM Contingency Account and
minus unexpended CM Construction Overhead Costs (based on pro rata allocation determined
by completion of the Work at the time of conversion). Upon conversion, all amounts paid by
UGAA (exclusive of CM Preconstruction Fees and CM Preconstruction Overhead Costs) shall
be fully credited to UGAA against the Contract Price. Changes to Contract Price thereafter will
be addressed in the manner consistent with the way in which changes to GMP are addressed in
Article VIII. UGAA may, but is not required to, demand and obtain from CM detailed back-up
materials for Payment Applications subsequent to the conversion in the manner required
hereunder for Payment Applications before conversion. After conversion, payments under the
Contract Price format are strictly limited by the pro rata completion of the Work on a line-item
basis, including the converted CM Construction Overhead and CM Construction Fee items,
which shall be limited to pro rata completion of the overall Work. Attached as an Exhibit to the
Conversion Change Order shall be a resultant Schedule of Values containing constituent lineitems for various components of the Costs of the Work, as well as the adjusted CM Construction
Fee, and adjusted CM Construction Overhead Costs, which will thereafter be included as
components of the Contract Price. The sum of all line-items shall equal the initial fixed Contract
Price.
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ARTICLE VI – TIME
A.
Time is of the essence. Time is of the essence in this Agreement.
B.
Work Continuous. Work shall begin within the time stated in ¶ I(B) and shall be performed
continually and expeditiously, and in accordance with the Project Schedule, until Final
Completion.
C.
Modification of Contract Time. Contract Time can only be adjusted by duly executed Change
Order proposed, prepared, and executed in accordance with this Article and Article VIII.
Neither CM’s submittal of a proposed schedule revision, nor the ADR’s review of one, changes
the then-current Project Schedule – nor do they modify CM’s obligations under this Agreement.
D.
Schedules. CM shall prepare and maintain accurate schedules, using scheduling software
approved by UGAA. Schedule accuracy is the sole obligation of CM. UGAA’s receipt of
schedules, and any response (or lack of response) to them, shall not be construed as UGAA’s
agreement to their basis or content. CM shall provide ADR with two printed copies and a
digital copy of each schedule supplied.
1.
Schedule Data. Both printed and digital schedules shall include the following “Schedule
Data”: (a) Project name and location; (b) CM’s name; (c) the date prepared, the preparer,
and the data date (on each page); (d) the type of Schedule, software used to produce it,
and the version or edition of it; (e) actual dates on which Work-in-Place was installed; (f)
planned activities of CM, Subcontractors, Separate Contractors, and others
distinguishing periods during which subdivisions of Work (e.g., installation periods for
structural footings, walls, slabs, framing, enclosure dry-in, delivery, approvals,
inspections, testing, etc.) are to be performed; (g) anticipated deliveries and installation
of any UGAA Equipment; (h) interim Milestone Dates (missed, achieved, and/or
anticipated); (i) Contractual Date of Substantial Completion; (j) planned key submittal
dates and related review periods; (k) dates of utility tie-ins, start-ups, installation of
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temporary service, etc.; (l) anticipated and likely Realized Date of Substantial
Completion; (m) occupancy and move-in dates; and (n) other schedule-related
information that may be requested by UGAA.
2.
Milestone Dates. Schedules shall include dates on which significant tasks, activities,
events, and key progress points of the Work are to be accomplished – all of which are to
be established by UGAA and CM at the time of execution of this Agreement (“Milestone
Dates”). CM’s satisfaction of Milestone Dates is a material obligation of this Agreement
and a condition precedent to UGAA’s obligation to pay.
3.
Schedules to account for anticipated adverse weather. Schedules shall be designed
allow for Anticipated Adverse Weather Days as contemplated in ¶ VIII(C)(8)(c).
4.
Resource-loaded schedule. Schedules shall be resource-loaded to include manpower,
key production equipment, Subcontract Work, and, to the extent known, the work of
Separate Contractors. CM shall prepare and submit all Schedules after consulting with
all relevant Subcontractors and Separate Contractors.
5.
Data preservation. CM shall preserve intact (in printed and digital form) Schedule Data
in succeeding versions, avoiding deletion or modification of historic data and other
information contained in them.
E.
CPM scheduling. CM is required to employ Precedence Diagramming Critical Path Method
(“CPM”) on all Project Schedules; and the Critical Path shall be shown on each Project Schedule.
CPM is a method of planning and scheduling a construction project where activities are
arranged based on activity relationships. Network calculations determine: (1) when activities
can be performed; and (2) the Critical Path of the Project. Critical Path is the longest continuous
chain of activities through the network schedule that established the minimum overall Project
duration and contains no float. A subject task or component of the Work is deemed to be “on
the Critical Path” if subsequent Work must follow completion of the subject task or component,
and that subsequent Work, in turn, controls the start of further subsequent Work in a way that,
if the subject Work is delayed, CM’s completion of the Work will also be delayed. Float is time
during which an activity is not on the Critical Path. If float is created, it is deemed to be for the
exclusive benefit and use of UGAA.
F.
Types of schedules.
1.
Preconstruction Schedule. CM to submit (in paper and electronic form at intervals
requested by ADR) a Preconstruction Bar Chart (Gantt) Schedule, indicating all major
Work, tasks, and construction activities, and other information required for such
Schedules in ¶ III(K), updated continually during the Preconstruction Process.
2.
Baseline CPM Schedule. At least three days in advance of the mandatory, final
preconstruction meeting indicated in ¶ I(K)(1) (or upon submittal of a proposed
Component Change Order, whichever occurs first), CM shall provide for UGAA’s
approval an initial proposed baseline CPM-based schedule of the Work
(“Preconstruction Baseline CPM Schedule” or “Baseline CPM Schedule”), containing the
information set forth in ¶¶ VI(D) and VI(E), and consistent with the foregoing.
a.
CM shall attach to the proposed Baseline CPM Schedule copies of all
Subcontracts, Subcontract proposals, estimates, purchase orders, preliminary
schedules, and other documents and information needed to substantiate the
proposed Baseline CPM Schedule.
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3.
4.
b.
CM’s submittal of an acceptable Baseline CPM Schedule is a condition precedent
to (i) CM’s submittal of the first Payment Application covering actual
construction; and (ii) UGAA’s obligation to pay.
c.
Upon approval, the Baseline CPM Schedule shall thereafter remain unchanged as
a record for comparison.
Project Schedule. Once approved by UGAA, the Baseline CPM Schedule will become
the initial approved “Project Schedule.” Project Schedules shall contain the data required
under ¶¶ VI(D) and VI(E) and other information that may be required by the ADR.
a.
CM’s duty to perform in accordance with Project Schedule. As a material
obligation under this Agreement, and as independent condition precedent to
UGAA’s obligation to pay, CM shall perform the Work: (i) in accordance with
the Project Schedule; (ii) within the Contract Time; and (iii) so as to complete
intermediate tasks, activities, and other Work on or before each respective
Milestone Date set forth in it.
b.
Modifications. Where possible, Scope of Work added by Change Order shall be
treated as a separate activity on the Project Schedule. Revisions shall be
designated as such, with previous Milestone Dates retained and marked.
Modifications to Project Schedule must reflect the Contract Documents and duly
executed ITC’s, Change Orders, or other UGAA-approved modifications of CM’s
obligations in accordance with Article VIII, and the Project Schedule shall be
updated monthly, consistent with them.
c.
CM’s obligation to accelerate Work. If CM fails to meet Milestone Dates, or if
the rate of progress of the Work indicates CM’s likely inability to complete the
Work within the Contract Time, CM shall, whether or not upon request by ADR,
and at no expense to UGAA, accelerate the Work as needed to bring the progress
of the Work in conformance to the most recently approved Project Schedule,
meeting subsequent Milestone Dates, and completing the Work within the
Contract Time.
Progress and Completion Schedules. If the progress of the Work is such that it appears
to UGAA likely that the then-current, approved Project Schedule cannot or may not be
met or that the then-current Contractual Date of Substantial Completion cannot or may
not be achieved, CM shall attach to each Interim Payment Application a proposed
“Progress and Completion Schedule” showing historic progress of the Work to-date, the
timing and sequence of Work to be performed, future Milestone Dates, and other
Schedule Data, all of which shall indicate CM’s intended plan for completing the Work
on or before the Contractual Date of Substantial Completion.
a.
As-built and anticipated Work noted. Progress and Completion Schedules shall
contain all the Schedule Data required in other schedules, including CPM data.
The as-built portion of the Progress and Completion Schedule shall accurately
reflect historic progress of the Work. The portion of it showing planned Work
shall to be resource-loaded to indicate the performance required of the CM to
complete the Work within the Contract Time.
b.
Contractual Project Schedule not affected. Submittal of updated Progress and
Completion Schedules shall not modify the then-current (and approved) Project
Schedule, which can only be modified as provided above. Mere submittal of
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Progress and Completion Schedules does not: (i) satisfy CM’s notice obligations
set forth herein; (ii) modify Contract Time; or (iii) relieve CM of its obligation to
meet Milestone Dates in the Project Schedule and to complete the Work within
the Contract Time.
c.
Points of nonconformance with Project Schedule noted. In each monthly
Progress and Completion Schedule, CM shall graphically note and highlight key
critical path activities and Milestone Dates that were not met historically and/or
will not be met under the proposed Progress and Completion Schedule.
d.
UGAA’s right to order schedule modifications. To the extent UGAA determines
in good faith that the proposed or submitted schedule (and/or subsequently
proposed or updated schedules) do(es) not reflect actual conditions, realistic
projections of time needed to perform, the actual resources or funds allotted for
performance, or UGAA’s needs consistent with this Agreement, UGAA may, but
is not required to, require the CM to modify its proposed Progress and
Completion Schedule and/or specific Milestone Dates and Schedule Data
contained in it and to plan for acceleration and/or resequencing of the Work as
necessary to complete it within the Contract Time at no additional cost to UGAA.
G.
Summary Schedule Comparison. When requested by ADR, CM shall, with its Interim Payment
Applications, submit a graphical comparison of the Baseline CPM Schedule, the then-current
Project Schedule, and an updated Progress and Completion Schedule (“the Summary Schedule
Comparison”). The Summary Schedule Comparison shall condense key tasks, events, Work
sequences, and Milestone Dates, vertically aligning a condensed graphical Baseline CPM
Schedule, the then-current Project Schedule, and the updated Progress and Completion
Schedule on one document, employing identically time-scaled grids.
H.
Progress Reports. In addition to other schedules, daily reports, and other required reports, CM
shall submit narrative Progress Reports at the intervals indicated in ¶ I(Q), detailing the Work
performed, Subcontractor activity, all pending claims, issues, and disputes, and comparing the
current Project Schedule with actual progress of the Work. Progress Reports shall describe the
progress of the Work and deviations, if any, in the progress of the Work from the then-current
Project Schedule. CM’s failure to indicate in a Progress Report deviations from the Project
Schedule shall be deemed to be an affirmative representation by CM that the progress of the
Work comports with the tasks and milestones set forth in the then-current Project Schedule.
I.
Timely performance mandatory. CM’s full and complete performance within the Contract
Time is a material obligation of this Agreement and a condition precedent to UGAA’s
obligation to pay.
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ARTICLE VII – SUBCONTRACTORS
A.
Subcontractors. CM is fully responsible for the acts, omissions, performance, and conduct of
Subcontractors of any tier with respect to the Work and the Project. CM shall not assert any
failure, act, negligence, omission, inefficiency, insolvency, bankruptcy, incompetence, or any
other act, omission, or circumstance of a Subcontractor of any tier as a justification or excuse for
CM’s failure to fully and timely perform the Work. CM must hire qualified Subcontractors with
sufficient skill and forces and in sufficient numbers to timely and competently perform the
various portions of Work, to meet Milestone Dates, and to supply the requisite materials and
equipment to perform the Work. CM shall not employ Subcontractors to which UGAA has a
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reasonable objection. UGAA retains the right to raise subsequent objections for cause, upon
which CM shall replace Subcontractor, with resulting costs to be borne solely by CM.
Concurrent with presentation to ADR of a Component Change Order or GMP Change Order,
CM shall provide, for ADR’s review, a list of proposed Subcontractors for all major trades and
materials; and thereafter CM’s use or employment of Subcontractors shall not be changed
without express written consent of UGAA, which consent can be withheld for any reason.
1.
Written Subcontracts required. CM shall engage no Subcontractor in the absence of a
written Subcontract. For all Subcontractors the value of whose Work exceeds $9,999.99,
and for others upon request of the ADR, CM shall provide to the ADR complete copies
of any or all Subcontracts, requisite licensing information, and copies of all related
Certificates of Insurance and Policies of Insurance.
2.
Subcontract payment terms to be consistent with state prompt payment statute. CM
shall not enter Subcontracts in which its payment of Subcontractors is excused for
periods longer than: (a) those set forth in the subcontractor provisions of the Georgia
Prompt Pay Act (O.C.G.A. § 13-11-1 et seq.); or (b) ten days after receipt from UGAA of
the payment of amounts applied for the Subcontractor’s Work (whichever is less). CM
shall not enter Subcontracts that purport to supersede or void Laws governing prompt
payment of Subcontractors.
3.
Competitive selection. CM shall competitively select, in accordance with ¶ III(J)(10), all
Subcontractors using comparative cost and other factors approved by ADR. Where
otherwise permitted herein, CM can perform Work with its own forces, but shall not
enter Subcontracts for any other Work or Services of any nature on the Project without
written, Subcontract-specific approval of UGAA.
B.
Licensing and certifications. Subcontractors must possess the occupational, trade, or
professional licenses and certifications required by local and state governments having
jurisdiction over the Work to perform their portion of the Work, as well as any insurance,
bonds, and governmental certifications, authorities, business licenses, and permits required to
conduct business in the state and locality of the Project. In addition to the foregoing, at any time
that mechanical, electrical, plumbing, utility, or welding Work is being performed, it must be
performed under the conscientious, observant, and direct supervision of a person licensed by
the State of Georgia in those respective trades. CM shall submit proof of the foregoing before
Subcontractor performs Work.
C.
Delegated design services. For purposes of this Agreement, DPD’s and other licensed
professionals engaged by CM shall be deemed Subcontractors hereunder.
D.
Flow-through provisions. CM shall cause each Subcontract to contain express flow-through
provisions that: (i) impose on Subcontractors of all tiers the same obligations and duties to
UGAA with respect to their portion of the Work that this Agreement imposes upon CM as to
UGAA, including but not limited to insurance obligations; and (ii) grant to UGAA the same
rights and benefits as to the Subcontractor that UGAA enjoys under this Agreement as to the
CM. In addition to all the other indemnities provided by CM herein, CM shall indemnify and
hold UGAA harmless for CM’s failure to effectively satisfy this provision.
1.
UGAA shall have access to records of Subcontractors and may audit their financial
records in the same way it may obtain and audit those of CM.
2.
Subcontractors shall provide insurance coverage for their respective portions of the
Work commensurate with the coverage required of the CM by this Agreement. The
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policies shall name the University of Georgia (and its officers, directors, and employees)
as Certificate Holders, and (except in the case of Workers Compensation and
Professional Liability Coverage) the University of Georgia Athletic Association, Inc., the
University of Georgia, and the Board of Regents of the University System of Georgia
(and their respective officers, directors, and employees) as named Additional Insureds
on all policies as set forth below, and providing copies of Certificates of Insurance,
Policies of Insurance, and related endorsement at the outset of the Subcontractor’s Work,
and at other times when requested by the ADR.
3.
Requirements pertaining to CM regarding claims, demands, and notices apply fully to
Subcontractors of any tier.
CM shall cause these flow-through provisions to be expressly included in each Subconsultant
contract of any tier.
E.
UGAA’s right to accept assignment of Subcontracts. CM shall cause each Subcontract to
contain a provision that permits UGAA to obtain assignment of the Subcontract upon UGAA’s
notice to Subcontractor and CM upon occurrence of a condition of default by CM or upon
UGAA’s termination of this Agreement. UGAA may, in turn, reassign the Subcontract, as its
needs require. UGAA’s exercise of its right of assignment or substituted performance shall not
excuse CM of its performance obligations hereunder or its obligation to adhere to its lawful and
contractual duties with respect to Subcontractors. Assignment of Subcontracts to UGAA does
not relieve CM of its sole and exclusive obligation to pay Subcontractors of all tiers for all
amounts earned by Subcontractor before the assignment. This provision is among those that
survive termination of this Agreement.
F.
No direct contractual relationship between UGAA and Subcontractors. CM is solely
responsible for payments to Subcontractors, and UGAA has no obligation to pay Subcontractors
for Work performed or labor, material, or services furnished to the Project. Although CM shall
expressly incorporate this Agreement by reference in each Subcontract, that incorporation does
not create any obligation or duty on the part of UGAA in favor of any Subcontractor (or any
other person or entity).
G.
Subcontractor claims and notices. If any Subcontractor, or anyone providing labor, materials,
services, or Work at the instance of CM or its Subcontractors of any tier, asserts (or threatens to
assert) a claim or demand of any kind against UGAA, UGA, the Board of Regents, the Property,
or CM, CM shall indemnify, defend, and hold harmless UGAA and UGAA Indemnitees as
indicated in ¶ XI(B) (and shall indemnify and hold harmless the State Indemnitees as indicated
in ¶ XI(B)) as to that claim in accordance with Article XI.
1.
Dual notice requirements. In addition to any other notice-related requirements
contained in this Agreement or required by Law, Subcontractors of any tier shall send to
the ADR, by Overnight Delivery in accordance with ¶ XVI(A), a copy of any and all
Project-related Notices to Contractor or CM, Notices to Owner, notices of subcontract,
notices of nonpayment, claims of lien, Bond-related demands and claims, and Projectrelated claims, notices, citations, or demands of any kind that are either received by (or
sent to) a Subcontractor or threatened, sent, asserted, filed, or delivered by (or to) a
Subcontractor or any other person or entity.
2.
Incorporation into Subcontracts. CM shall expressly incorporate the provisions in this
Agreement in each Subcontract entered on this Project; proof of compliance with this
requirement being a condition precedent to UGAA’s obligation to pay. CM agrees that
failure to incorporate the terms of this Agreement into Subcontracts with Subcontractors
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of any tier is a material breach of this Agreement. UGAA may at any time demand proof
of CM’s compliance with this obligation to incorporate.
H.
Joint and several liability. CM shall be jointly and severally liable with its Subcontractors of
any tier for all warranty obligations pertaining to Subcontract Work, defects in the Work of
Subcontractors, and breaches of this Agreement with respect to the Work of Subcontractors.
__
ARTICLE VIII – CHANGES
A.
B.
Requests for Information (“RFI’s”). If CM believes that it cannot perform part or all of the
Work because the Contract Documents are incomplete or ambiguous, or for any other reason
CM determines that it lacks information necessary to perform the Work, CM shall prepare an
RFI and submit it concurrently to the ADR and the Design Professional in accordance with the
following:
1.
Informal request to precede written RFI’s. If, in the judgment of the ADR during the
course of the Work, the need arises, ADR may order that, before submitting a written
RFI, CM must concurrently request the information by e-mail from the ADR and the
Design Professional. In the absence of a follow-up RFI, such informal RFI’s are
presumed to have been satisfactorily and sufficiently answered;
2.
Effect of absence of timely RFI. Absence of an RFI shall be deemed to indicate that CM
has all information needed to fully perform the Work; and CM waives right to
compensation for correction of Work or other Change Order related to a purported lack
of information if CM fails to submit an RFI within seven days of determination by CM or
its Subcontractor that it may lack sufficient information to perform the Work;
3.
Form of request. RFI’s shall be consecutively numbered, dated, and submitted in a form
acceptable to the ADR. Each shall indicate: (a) the precise nature of the information
requested; (b) when and from whom the CM informally requested the information; (c)
the source and content of any prior response to CM’s informal request(s); (d) which
Contract Documents pertain to the issue involved; (e) when the information requested is
needed; and (f) what task(s) or element(s) (if any) of the Project Schedule and the most
recent Progress and Completion Schedule will be first impacted, or critically impacted,
by CM’s need for the information requested; and
4.
Tracking of RFI’s. CM shall continually update the RFI log, indicating with respect to
each RFI: the subject; the date submitted; specific action taken or other resolution
proposed or affected; the Contract Document provision(s) pertinent to the RFI and its
resolution; and the number and date of any Proposed Change Orders and Change
Orders to which the RFI relates. ASK’s issued in response to RFI’s shall be tracked and
recorded with RFI’s, as well as separately logged and stored as a group.
Changes in Scope of Work.
1.
UGAA’s Instructions to Change (“ITC’s”). Without invalidating this Agreement, the
ADR or UGAA’s undersigned authorized representative may order changes in the Work
by issuing a written ITC to CM.
a.
ITC’s shall be issued in substantially the form supplied as Supplement Q and
consecutively numbered.
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b.
ITC’s issued by the Design Professional are not valid without the signature of the
ADR or the undersigned authorized representative of UGAA.
c.
ITC’s that result in a modification of Contract Time or GMP will be incorporated
into a Change Order within a reasonable time.
d.
Where increased compensation is authorized by ITC, that compensation is
calculated and limited in accordance with the Pricing of Adjustments provisions
in this Article VIII and the not-to-exceed amount set forth within the ITC. CM
assumes the risk that it will incur costs in excess of that amount in its
performance of the changed Work described in the ITC. Where an ITC is signed
only by the ADR, the not-to-exceed amount shall be deemed not to exceed the
amount stated in ¶ XVI(C), unless a smaller amount is indicated in the ITC.
e.
Upon ADR’s issuance of an ITC, CM’s Work shall be modified accordingly;
however, if CM believes that the amount specified in the ITC is unacceptable or
that the change requires an increase in GMP or Contract Time, or a change in
Project Schedule, CM shall perform the Work, but shall promptly e-mail the ADR
of its objections, and within seven days, submit a PCO to ADR for consideration.
Absence of objection and a timely PCO shall be deemed to be acceptance of the
ITC by CM and a waiver by CM of any claim for increased compensation or an
extension of Contract Time.
f.
Where the Parties are unable to agree to an acceptable not-to-exceed amount
with respect to a given change, UGAA may, but is not required to, establish a
Force Account for the changed Work, managed consistent with the Force
Account provisions set forth below in this Article.
2.
CM’s proposed changes or substitutions. No substitutions are permitted in the absence
of a written approval as set forth in ¶ III(B).
3.
Proposed Change Orders (“PCO’s”). Subject to the provisions of ¶ VIII(C), upon CM’s
receipt of an ITC, ASK, UGAA-issued PCO, an answer to an RFI, any modification or
other direction by UGAA or Design Professional that could be perceived by CM as a
change, or when CM discovers (or should with diligence discover) any other event, force
majeure occurrence, circumstance, or differing site condition that will, or is likely to, in
CM’s judgment, result in a change of Scope of Work that materially increases CM’s costs
or time to perform, or will otherwise impact GMP, Contract Time, or the Project
Schedule (“triggering event”), CM shall, before performing the changed Work involved,
and in no case more than seven days after the triggering event, deliver to the ADR (and
concurrently to Design Professional) a detailed PCO (in substantially the same form as
the Change Order supplied in Supplement B2, or in another form acceptable to the
ADR, with content as required therein). Absence of timely submittal of a PCO shall
indicate that CM waives compensation and claims related to or arising out of the subject
of the triggering event; and, thereafter, CM shall perform the Work according to those
ITC’s (where signed by ADR), ASK’s, UGAA-issued PCO, and answers to RFI’s, with
subsequent Project and Completion Schedules modified accordingly. Mere receipt of a
PCO shall not be construed as approval by UGAA of contents or assertions contained in
the PCO – or any agreement on the part of UGAA that the proposal in any way justifies
a Change Order.
a.
Content. Each PCO shall compare the then-applicable Scope of Work to the
proposed Scope of Work, detailing, with documents and other support data: (i)
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the Plan sheet, drawing number, specification section, and/or other Contract
Document affected or involved; (ii) the reasons for the suggested impact; (iii) the
effect of the proposed change on CM’s cost to perform and the Project Schedule;
and (iv) the precise adjustment proposed to the GMP and/or Contract Time.
b.
PCO’s pertaining to differing site conditions.
i.
If ¶ I(O) indicates that a Geotechnical Report is incorporated in the
Contract Documents, the conditions reported in it shall be deemed to
generally establish the soil and subsurface conditions anticipated. If CM
encounters concealed or subsurface conditions that it contends differ
materially and substantially from those expected conditions, CM shall
promptly: (A) notify the ADR by telephone and in writing by e-mail; and
(B) submit a PCO that, in addition to the other information required in
PCO’s: (1) details the depths, character, and quantities of the conditions
encountered; (2) describes how and to what degree the conditions
encountered differ from those anticipated; (3) indicates the steps taken by
CM to inform UGAA and UGAA’s Testing Consultants of the conditions
encountered; and (4) specifies, to the degree known, the changes in the
Work required to adapt to those conditions. CM shall continually update
this PCO until resolution is complete contractually and in terms of the
Work. Unit Prices stated in Supplement C shall be used to calculate
compensation for remedial Work that is above and greater in volume that
that which could be reasonably anticipated from the contents of the
Geotechnical Report.
ii.
If a Geotechnical Report has been prepared but has not been expressly
incorporated in this Agreement, the Geotechnical Report shall not be
presumed to be authoritative or reliable. In that case, or if no
Geotechnical Report has been performed, the subsurface and soil
conditions are deemed “undetermined.” In either case, the GMP shall be
deemed to take into account grading and earthwork of a type or
magnitude that is usual or reasonably anticipated. If, however, subsurface
and soils conditions are encountered that require extraordinary remedial
site Work and earthwork (i.e., of the type and quantities that could not be
reasonably anticipated) to accept foundations and other improvements as
required in the Contract Documents, CM shall adhere to the steps
indicated in the immediately preceding subparagraph. For purposes of
this subparagraph, “extraordinary remedial site Work and earthwork” is
deemed to be uncommon soil conditions rarely found in the vicinity of
the Project or compensable rock requiring removal. No rock for which
compensation is sought or expected shall be removed except pursuant to
written authorization of ADR. Shale, rottenstone, or stratified rock that
can be loosened with a pick or removed by a hydraulic excavator
equivalent to a Caterpillar Model 215, a single engine pan (Caterpillar 621
or equivalent) that is pushed by a crawler tractor (Caterpillar D-8K or
equivalent), or similar equipment shall not be classified as “rock.”
Categories of compensable Rock are as defined in Supplement C.
iii.
That said, CM acknowledges that Geotechnical Reports are necessarily
imprecise and some site Work and earthwork preparation is required in
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all projects involving foundation construction; and, thus, CM assumes the
risk that subsurface conditions will vary to some degree from those
described in a given report, and, in all cases, compensation for nonextraordinary and not unusual site Work and earthwork is deemed
included within the GMP.
iv.
c.
If a Geotechnical Report contains foundation recommendations that differ
or conflict with foundation design or soil preparation specification by
Design Professional contained in the Construction Documents, the design
indicated in the Construction Documents shall apply – but CM shall
immediately issue an RFI regarding that difference or conflict to ADR and
Design Professional.
PCO’s relating to Hazardous Materials conditions.
i.
If ¶ I(X) indicates that a Hazardous Materials Report is expressly
incorporated in the Contract Documents, the conditions reported in it
shall be deemed to generally establish the extent of Hazardous Materials
that CM can expect to encounter. If CM encounters Hazardous Materials
conditions that it contends differ materially and substantially from those
expected, CM shall immediately: (A) notify the ADR by telephone and in
writing by e-mail; and (B) submit a PCO that, in addition to the other
information required in PCO’s: (1) details the extent of the Hazardous
Materials encountered; (2) describes how and to what degree the
conditions encountered differ from those anticipated; (3) indicates the
steps taken by CM to inform UGAA and UGAA’s Testing Consultants of
the Hazardous Materials encountered; and (4) specifies, to the degree
known, the changes in the Work required to adapt to those conditions.
CM shall continually update this PCO until resolution is complete
contractually and in terms of the Work.
ii.
That said, if ¶ I(X) indicates no Hazardous Materials Report incorporated
in the Contract Documents, and CM encounters them, CM shall give
immediate notice thereof to ADR by e-mail and shall, within five days,
prepare a PCO and proceed in accordance with the immediately
preceding subparagraph.
iii.
In the case of either of the foregoing conditions in this subparagraph, all
other Hazardous Materials requirements in this Agreement shall continue
to apply.
d.
Time-related PCO’s. Updates of proposed, affected Project Schedules, Progress
and Completion Schedules, and related support documents shall be attached to,
and incorporated in, PCO’s pertaining to modifications of Contract Time.
e.
Numbering and signature. PCO’s shall be consecutively numbered and signed
by the CMDR or CM’s Project manager.
f.
Submittal of PCO’s. CM shall submit to ADR three copies of PCO’s for review,
comment, and, if appropriate, approval – and shall concurrently submit one copy
of the PCO to Design Professional.
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g.
C.
Certification. By submitting a PCO, CM represents and certifies that the
amounts claimed or extensions sought were competitively obtained (as required
by ¶ III(J)(10)), and are justified by the facts and the Contract Documents.
Change Orders. Unless otherwise requested or approved by ADR, the information contained in
an approved PCO shall form the basis for the resulting Change Order, which shall conform to
the requirements of this Article VIII. Except as indicated above in this Article with respect to
ITC’s, changes that affect GMP, Contract Time, Project Schedule, or maximum amounts for CM
Preconstruction Fee, CM Preconstruction Overhead Costs, CM Construction Fee, and CM
Construction Overhead Costs can only be modified by duly executed written Change Order,
signed and dated by the undersigned “authorized representative” of UGAA, the form of which
is supplied as Supplement B2. In the absence of a subsequent designee appointed in accordance
with Article XVI, the undersigned authorized representative of UGAA (or its Director of
Athletics, or the ADR within the limits set forth in ¶ XVI(C)) is (are) the only person(s) with
authority to execute Change Orders for UGAA. In the absence of a Change Order duly executed
by UGAA, CM waives any and all claims or demands for payment or compensation of any kind
– or extension of time for performance – arising out or relating to its performance of the
changed Work.
1.
CM’s untimely, inadequate, unlawful, defective, or otherwise noncompliant
performance shall not give rise to a Change Order increasing the GMP or Contract Time
– or modifying the Project Schedule.
2.
Minor changes in the Scope of Work that do not substantially and unavoidably affect the
time or cost required to perform shall not give rise to a Change Order that modifies the
Contract Time or the GMP.
3.
Change Orders are to be consecutively numbered and cross-referenced to underlying or
precipitating PCO’s. Upon execution of a Conversion Change Order, subsequent
changes will be set forth in Post-Conversion Change Orders (Supplement B4); and
changes to the Contract Price shall be addressed in a manner commensurate with those
set forth for changes to the GMP in this Article.
4.
As otherwise provided herein, UGAA, may, upon notice, issue unilateral Change Orders
as needed or justified to protect legitimate interests of UGAA and to maintain progress
of the Work, modifying the Contract Time, Project Schedule, or GMP. Amounts
modified in unilateral Change Orders shall be determined in the good-faith judgment of
ADR. Unless otherwise stated in context, unilateral Change Orders are effective upon
issuance by the ADR – and shall be reflected in subsequent Payment Applications.
Interim Payment Applications shall reflect only fully executed bilateral or unilateral
Change Orders – not PCO’s or other as-yet-unapproved proposals or requests. If CM
contends that a unilateral Change Order is prohibited under this Agreement under the
circumstances or the amount adjusted is incorrect, it must object, stating with specificity
the contractual and factual grounds for its objection. CM waives objections to the terms
of a unilateral Change Order unless it gives formal notice of its objection (together with
substantiated written back-up and objective reasoning on which the objection is based)
in writing to ADR within seven days of its receipt (by e-mail or otherwise) of the Change
Order – unless CM and UGAA agree in writing to a longer period for a specific Change
Order.
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5.
Pricing of adjustments to GMP.
a.
Agreed pricing of adjustments. Where otherwise justified by material change in
Scope of Work, the specific amount of the adjustment of the GMP (except in cases
of unilateral Change Orders) shall be agreed in writing by the Parties before the
changed Work is performed and shall reflect the following limitations:
i.
For approved Self-performed Work: Adjustment to GMP limited to Cost of
the Work (as Cost of the Work is further described and limited in ¶
V(B)(2)(a)) plus a CM markup of 7.5% – which markup includes without
limitation all profit, overhead, general conditions, Bond premiums,
insurance premiums, salaries, field office expenses, and any other costs
pertaining to the changed Work.
ii.
For Work performed by a first-tier (direct) Subcontractor: Adjustment to GMP
limited to Subcontractor’s Cost of the Work (as Cost of the Work is
further described and limited in ¶ V(B)(2)(a)) plus a Subcontractor
markup of 7.5% of Cost of the Work plus a CM noncumulative markup of
an additional 5% (for a total of 12.5%) – which markup includes without
limitation all profit, overhead, general conditions, Bond premiums,
insurance premiums, salaries, field office expenses, and any other costs
pertaining to the changed Work for Subcontractor and CM.
iii.
For Work performed by a lower-tier Subcontractor: Adjustment to GMP
limited to Sub-subcontractor’s Cost of the Work (as Cost of the Work is
further described and limited in ¶ V(B)(2)(a)) plus a Sub-subcontractor
markup of 7.5% and CM and Subcontractor combined noncumulative
markup of 7.5% for a total of 15%) – which markup includes without
limitation all profit, overhead, general conditions, Bond premiums,
insurance premiums, salaries, field office expenses, and any other costs
pertaining to the changed Work for Subcontractors all tiers and CM.
b.
Cost of the Work shall, in no case, include CM Construction Fee or categories of
costs included or inferable from those listed as CM Construction Overhead Costs
in Supplement O.
c.
The amounts determined in accordance with ¶ VIII(C)(5)(a) are deemed to
include all compensation for any and all direct and indirect costs, overhead,
profit, insurance, labor, materials, and time related to the change requested or
ordered. Increases in costs of materials during the course of the Work shall not be
cause for adjustment of the GMP.
d.
In no case shall CM (or Subcontractors of any tier) be compensated for: (i)
demolition, replacement, repair, or re-inspection of Defective Work or for costs
resulting in whole or in part from failure by CM (and/or a Subcontractor of any
tier) to perform as required by Law or this Agreement; (ii) changes in scope to
the extent that they were avoidable by diligent, timely CM performance; (iii) reinspection fees and costs caused by failure of Work to pass initial inspection, lack
of readiness by CM for inspections, or for other less-than-diligent or nonconscientious conduct, planning, or scheduling by CM; (iv) home office expenses
and other home and branch office costs and expenses commonly included in
“Eichleay Costs,” where delay was not on the critical path or was avoidable by
CM’s conscientious prosecution of the Work; (v) payroll costs for CM’s (or
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Subcontractors’) officers, executive, administrators, accountants, counsel,
engineers, timekeepers, estimators, clerks, or other similar administrative
personnel; (vi) wages of personnel to the extent that they are also assigned to
other projects; (vii) charges for delinquent payments, small tools, incidental costs,
rent, utilities, telephone and office equipment; (viii) food, meals, repairs to
equipment, vehicle maintenance and registration, use of vehicles unrelated to the
Work, fines, penalties, lost or stolen equipment, undocumented costs, capital
expenses, legal fees, cost to discharge liens, re-testing and re-inspection costs,
profit sharing, commissions, or any other costs due in whole or in part to CM’s
negligence, default, oversight, lack of due care; or (ix) costs related to CM’s
Superintendent, Project Manager, and other persons assigned to the Project
and/or on-site without regard to the scope of the changed Work.
e.
6.
The markups provided in ¶ VIII(C)(5)(a) for Change Orders are in lieu of changerelated increases to CM Construction Fee and CM Construction Overhead Costs.
Force Account. If the Parties cannot agree in advance as to the appropriate modifications
to the GMP as a result of an ITC or PCO, UGAA may establish a task-specific Force
Account of a given sum, instructing CM proceed with the changed Work on a time and
materials basis within that Force Account (“Force Account Work”). In that case:
a.
CM must deliver to UGAA formal notice of objection to the amount proposed for
the subject Force Account Work by UGAA (together with substantiated written
back-up and objective reasoning on which the objection is based) within seven
days after its receipt UGAA’s proposal, or waive objection to its application as
set forth in this ¶ VIII(C)(6).
b.
As Force Account Work is performed, CM shall keep detailed, contemporaneous,
separate records of time and actual costs, estimated and incurred (as they are
incurred), in performing each discrete task comprising the changed Work; and
shall provide legible copies of all back-up and support documents pertaining to
each Force Account item with each subsequent Interim Payment Application
(until a Change Order is agreed with respect to the change) – without regard to
whether the time and material costs will or may be compensated in whole or in
part by UGAA then or later.
c.
CM’s failure to maintain and provide to ADR the detailed, contemporaneous,
separate accounting of costs as they are incurred shall operate as an absolute and
irrevocable waiver of any right it may otherwise have to compensation of any
kind for the change. Where undisputed and properly documented, task-specific
expenditures incurred and substantiated within each Force Account not-toexceed maximum may be included as a line-item in successive Payment
Applications, with the PCO and subsequent Payment Applications to reflect the
amounts paid.
d.
Work shall be expeditious and continuous during the time that Force Account
Work is being performed, and thereafter.
e.
Within thirty days after UGAA receives a complete accounting from CM of
actual costs for performing the subject Force Account Work, UGAA shall indicate
to CM (by e-mail) a proposed adjustment to the GMP (if appropriate) reflecting
its good faith judgment of the value of that Force Account Work. In no case shall
UGAA be required to pay CM (for time and materials compensation otherwise
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justified hereunder) more than the lesser of: (i) the reasonable value of the
changes requested; (ii) the sum of substantiated and valid time and materials
costs, calculated in accordance with this paragraph; or (iii) the not-to-exceed
amount established by the ADR for the subject change. In the absence of CM’s
written objection within seven days, together with substantive reasons therefore,
the proposed adjustment shall be binding.
f.
The provisions of ¶ VIII(C)(5) apply as well to pricing of Work performed during
imposition of a Force Account under this paragraph.
7.
CM obligation to advise and cooperate regarding changes. CM shall advise and assist
UGAA with regard to all aspects concerning changes, including providing cost analysis
regarding potential changes.
8.
Changes to Contract Time.
a.
Time-related Change Orders. Appropriately modified and updated Project
Schedules, Progress and Completion Schedules, and related support documents
shall be attached to, and incorporated in, Change Orders modifying Contract
Time.
b.
UGAA right to suspend and resequence Work; no damage for delay. This
Agreement contemplates that UGAA may from time-to-time act in good faith but
in a way that results in resequencing, suspension, or other impact to the Work –
and that progress of the Work may be impeded by Extraordinary Adverse
Weather Days, force majeure, or other occurrences. CM’s sole remedy for such
delay, if otherwise justified herein, shall be an extension of Contract Time in
which to perform. Extension of Contract Time will not be granted for periods of
UGAA-generated delay that are concurrent with delay in CM’s performance or if
the Work delayed by UGAA is not on the then-current Critical Path, with CM
bearing sole responsibility for proving the absence of both such conditions in
order to obtain an extension of Contract Time.
c.
Weather-related requests for extension of Contract Time. For purposes of this ¶
VIII(C)(8)(c), weather is accounted for as stated below. “Adverse Weather” is
weather (or related site conditions lingering after a weather event) that forces
CM to suspend, interrupt, delay, or prevent its performance of that portion of the
Work that lies on the then-current Critical Path.
i.
Adverse Weather. An “Adverse Weather Day” is one in which CM is
unable to perform Work on the Critical Path as a sole result of: (A)
precipitation exceeding .50 inches of rain per day or 1 inch of
accumulated snow falling; (B) winds gusting to the degree that Work on
the critical path cannot be performed; (C) other extraordinary acts of
nature that directly prevent Work on the critical path from being
performed – all as verified by locality-specific weather data recorded by
the National Oceanographic and Atmospheric Administration (“NOAA”)
(or another mutually agreed-upon agency of government); or (D)
lingering site conditions after one of the foregoing events that completely
and unavoidably prevents Work in a way that inevitably prolongs the
Critical Path of the Work and extends the time needed by the CM to
achieve Substantial Completion of the Work.
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ii.
Anticipated Adverse Weather Days. The Parties anticipate, and all
prospective Project-related schedules will provide for, and the
Contractual Date of Substantial Completion takes into account, the
following number of days of Adverse Weather in each of the respective
months: January (14 days); February (14 days); March (10 days); April (7
days); May (6 days); June (3 days); July (4 days); August (4 days);
September (3 days); October (3 days); November (5 days); and December
(9 days) (collectively, “Anticipated Adverse Weather Days”).
iii.
Extraordinary Adverse Weather Days are those Adverse Weather Days
which exceed the number of Anticipated Adverse Weather Days listed in
¶ VIII(C)(8)(c)(ii).
iv.
Extraordinarily Beneficial Weather Days are those business days (within
a calendar month) in which Critical Path Work is possible due to fewer
Adverse Weather Days than anticipated in ¶ VIII(C)(8)(c)(ii).
d.
Weather-based claims for extension of time. If Extraordinary Adverse Weather
Days occur, an extension of Contract Time and adjustment of Project Schedule
may be permitted only if CM has met each of the following conditions: (i) CM has
contemporaneously (i.e., in the same day or next business day) reported adverse
weather in writing to ADR by e-mail as required in ¶ III(J)(8); (ii) CM
corroborates the claim of Extraordinary Adverse Weather by submitting to ADR
actual NOAA records referred to above; (iii) contemporaneous digital Progress
Photos and other data contained in the weather-related PCO affirmatively links
the specific weather event and its impact on the then-current CPM Project
Schedule and the most recently submitted Progress and Completion Schedule;
(iv) CM provided adequate documentary back-up supporting each of these
elements; and (v) CM demonstrates within thirty days of the Extraordinary
Adverse Weather event (using CPM Scheduling) that it could not have avoided
the weather-related impact claimed by its expeditious and diligent performance
of Work at all times previous to the occurrence of the Extraordinary Adverse
Weather event(s) (e.g., by taking advantage of prior Extraordinarily Beneficial
Weather Days or by avoiding previous delays in its performance). CM’s failure
to timely satisfy one or more of the foregoing conditions constitutes an absolute
waiver of any right CM may have had to an adjustment of Contract Time or
Project Schedule due to the subject Extraordinary Adverse Weather occurrence.
e.
Burden on CM to monitor and report Critical Path. As a condition precedent to
UGAA’s obligation to recognize Extraordinary Weather Days and grant any
relief whatsoever to CM related thereto, CM must have provided to ADR (at all
times before the claimed Extraordinary Weather Day) valid, CPM-based Project
Schedules at monthly intervals, or at other times as requested by ADR. To obtain
an extension of Contract Time, CM must demonstrate that the event that it claims
justifies the extension of time or other relief, in fact, prolonged the Critical Path
of the Work.
D.
Deductive changes. UGAA shall receive full value, including rebate of markups and overhead
and profit, when calculating amounts of deductive Change Orders.
E.
Administration of the change process included in the initial GMP. The CM Construction
Overhead Costs within the initial GMP are deemed to include all costs incurred by CM in
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preparing and responding to RFI’s, ITC’s, PCO’s, and Change Orders whether or not they: (1)
result in executed Change Orders; or (2) are caused to any degree whatsoever by CM’s failure to
perform.
F.
Waiver and Release. CM waives any right to adjustment of the GMP, Contract Time, or Project
Schedule, or to payment of any kind for changed Work, if it fails to timely satisfy the notice,
analysis, and other requirements pertaining to RFI’s, ITC’s, PCO’s, and Change Orders set forth
herein. Execution of a Change Order by CM shall operate as a release of all claims by CM and
its Subcontractors of any tier in connection with the Work changed and any other claims or
changes for which there is no outstanding, unresolved PCO. General disclaimers and
reservations of rights by CM that do not specifically detail putative claims outstanding will not
avoid the releases and waivers indicated herein.
G.
Ongoing rights related to events prompting unilateral Change Orders. UGAA’s issuance of a
unilateral Change Order shall not deprive it of its right to issue subsequent unilateral Change
Orders pertaining to the same subject matter as UGAA’s determines the extent of its damages or
costs incurred. Nor does UGAA’s issuance of unilateral Change Order deprive it of its right,
under this Agreement or under Law, to fully recover for damages, attorneys’ fees, and other
losses suffered as a result of CM’s performance or failure to perform, all of which rights are
reserved.
__
ARTICLE IX – DISPUTES
A.
Claims. If the Parties cannot informally resolve disagreements related to or arising out of this
Agreement, they may assert a claim against the other. Unless required sooner hereunder, CM
shall deliver to the ADR written formal notice of a claim against UGAA (in the manner
specified at ¶ XVI(A)) within fourteen days after the condition or event giving rise to the claim
(or within fourteen days of the date on which CM knew or should with diligence have known
of the condition or event, whichever is later). CM waives claims for which it fails to give timely
notice in the manner specified. Claims based upon UGAA-requested changes in the Scope of
Work or Contract Time shall be presented by CM in the form of a PCO in accordance with the
provisions of Article VIII. UGAA may assert a claim by issuing written notice thereof to CM at
any time after it becomes evident to UGAA that: (1) CM is not willing or able to satisfy
demands by UGAA or perform as requested by UGAA; or (2) CM’s partial efforts to satisfy
demands have ceased or will not achieve the result required by the Contract Documents,
whichever is later.
B.
Notice; mediation. As a condition precedent to the filing of any lawsuit against UGAA, CM
must provide to UGAA in writing, in the manner prescribed in Article XVI for formal notices, a
demand for mediation of all outstanding claims and demands of any kind it has against UGAA,
which demand must be made at least thirty days before the filing of any lawsuit. Upon the
demand, the Parties may agree on a mediator and a process for mediation; but, in the absence of
such agreement, mediation will be conducted under the auspices of the American Arbitration
Association mediation rules for the construction industry. The foregoing mediation condition
precedent to a lawsuit brought by CM is not satisfied by a prior demand for mediation or
mediation that did not address the same specific outstanding and unresolved claims, disputes,
and demands that CM asserts, or intends to assert, against UGAA in a lawsuit.
C.
Jurisdiction and venue. All disputes relating to or arising out of this Agreement or the Project
shall be litigated exclusively in a court of competent jurisdiction within Fulton County, Georgia
or Athens-Clarke County, Georgia; and CM hereby waives objection to any such venues. In no
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case shall this provision be construed as a waiver of rights, if any, protected by the Eleventh
Amendment of the Constitution of the United States. CM shall include commensurate
jurisdiction and venue provisions in each Subcontract.
D.
Work continuous during disputes. CM shall perform the Work expeditiously and without
interruption during the pendency of a dispute; provided, however, that UGAA pays amounts
otherwise due to CM that are, in UGAA’s good faith opinion, not reasonably subject to dispute.
No such partial payment shall be construed to be an irretrievable voluntary payment by UGAA
or waiver of any right held by UGAA to recover that payment.
E.
Joinder. CM waives objection to its being joined in any litigation in which its performance or
the Work is directly or indirectly related to the dispute – and shall include a similar express,
written waiver applicable to Subcontractors in all Subcontracts. In addition to the other
indemnification provided herein, CM shall indemnify, defend, and hold harmless UGAA and
UGAA Indemnitees as indicated in ¶ XI(B) (and shall indemnify and hold harmless the State
Indemnitees as indicated in ¶ XI(B)) and pay all costs (including but not limited to attorneys’
fees) incurred by UGAA, UGA, the Board of Regents, and the other Indemnitees related to
litigation involving CM’s or any Subcontractor’s resistance to or refusal of joinder.
F.
Waiver of consequential damages. CM waives any and all claims against UGAA for
consequential and indirect damages of any type.
G.
No agreement to arbitrate. UGAA does not agree to arbitrate disputes arising out of or relating
to this Agreement and the Project, and nothing in this Agreement or any document
incorporated herein shall be deemed to impose upon UGAA an obligation to arbitrate disputes
or participate in arbitration of the disputes of others.
__
ARTICLE X – DEFAULT, SUSPENSION, AND TERMINATION
A.
CM default. When UGAA determines or has reason to believe that one or more of the following
conditions of default exists, UGAA may issue a Notice of Pending Declaration of Default to CM
and its Surety on Performance and Payment Bonds. A nonexclusive list of conditions of default
follows:
1.
CM’s disregard of its Project safety obligations;
2.
CM’s failure to correct Defective Work – or to correct failures to perform in accordance
with this Agreement – promptly upon becoming aware of either;
3.
CM’s failure to correct Defective Work required pursuant to its warranty obligations – or
to perform any other warranty-related obligations hereunder;
4.
Multiple or continuing occasions of CM’s provision of Defective Work or Noncompliant
Work or failure to perform in accordance with this Agreement;
5.
CM’s failure to achieve progress toward Milestone Dates or consistent with the Project
Schedule;
6.
CM’s failure to timely pay Subcontractors (or failure to cause prompt payment of any
Subcontractor of any tier);
7.
CM’s failure to manage the Work or to supply the Project at all times with an adequate
number of appropriately skilled workers and materials as needed to timely and
competently perform the Work;
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B.
8.
CM’s failure to provide and maintain required Performance and Payment Bonds and
insurance coverage and to provide verifiable proof thereof, as required in this
Agreement;
9.
CM’s violation of, or failure to abide by, any governmental statutes, ordinances,
regulations or other Laws;
10.
Unlawful conduct by CM, its directors, officers, or employees, or its Subcontractors of
any tier involving or relating to the Project, the Property, the Work, or UGAA;
11.
CM’s financial insolvency, its inability to provide reasonable assurances of solvency
upon UGAA’s request, its inability meet its financial obligations as they mature, its
making of a general assignment in favor of creditors, its subjection to appointment of a
receiver, or the dissolution or downgrading of CM’s business organization;
12.
CM’s failure to obtain immediate cancellation or discharge of any lien as required
herein;
13.
CM’s failure to timely provide, upon request, substantiation and documentary proof of
costs, financial records, or its failure to timely satisfy other reporting obligations
hereunder;
14.
CM’s loss of licensure in Georgia for any reason – or CM’s loss of licensure for cause in
any other jurisdiction;
15.
CM’s failure to abide by its Open Records Act obligations;
16.
CM’s violation of regulations and other Laws pertaining to the preservation of the
environment or safety of workers or the public;
17.
CM’s failure to achieve Substantial Completion within the Contract Time;
18.
CM’s failure to timely correct and complete Punchlist Work;
19.
CM’s failure to timely complete its Closeout Obligations as set forth herein;
20.
CM’s breach of an obligation under Article XIV; or
21.
Any repeated or continuing CM breach of any other obligation set forth in the Contract
Documents or any act, conduct, or omission by CM that prejudices or adversely affects
UGAA’s interests with respect to the Project.
Notice of Pending Declaration of Default; opportunity to cure. As a material obligation of this
Agreement, CM shall cure any safety-related breach of performance immediately and any and
all other conditions of default within seven days after the ADR requests correction, rejects
defective performance or Defective Work, objects to CM’s untimely performance, or gives
Notice of Pending Declaration of Default or gives notice to CM (by e-mail or otherwise) that one
or more conditions of default exist.
1.
If it contends that it is not in default and asserts, rather, that its performance complies
with this Agreement, CM shall, within the above-noted cure period, deliver to the ADR
a detailed written report, specifying the precise basis for CM’s contentions – and the
particular provisions of this Agreement that it contends preclude UGAA’s declaration of
default and subsequent termination of the Agreement.
2.
If CM intends to undertake corrective measures to cure the noted conditions of default
within the cure period, it shall deliver to the ADR its detailed written plan for curing the
conditions of default, indicating the specific means that CM will use to do so, and the
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dates on which each specific cure will be begun and achieved in full. UGAA is under no
obligation to recognize, accept, or approve proposed cures that do not timely and
completely render performance in accordance with the Contract Documents.
3.
Unless CM timely delivers one of the two foregoing responses to UGAA’s notice of
default, CM consents to UGAA’s declaration of default and termination of this
Agreement at the election of UGAA is presumed.
C.
UGAA’s substituted performance of the Work. If CM fails, in whole or in part, upon three
days’ e-mail notice, to perform its obligations or to correct one or more conditions of default,
upon e-mail notice to CM, UGAA may, but is not required to, perform the Work itself or engage
one or more Separate Contractors (or replacement contractors) to perform the Work without
delay. UGAA is then entitled to issue a unilateral Change Order reducing the GMP by an
amount equal to the sum of UGAA’s direct costs to secure substituted performance plus the sum
of other related damages, costs, losses, administrative costs, attorneys’ fees, Design Professional
and Testing Consultant fees, etc. that it may reasonably expect to incur as a result of CM’s
failure to perform (thereby reducing amounts due to CM accordingly). Termination of this
Agreement is not a condition precedent to UGAA’s whole or partial elective, substituted
performance of the Work; and UGAA’s substituted performance of part or all of the Work shall
not prevent UGAA from insisting, at any time, that CM resume performance of remaining
Work.
D.
Right to stop or reject Work. UGAA may reject any and all Defective Work and Noncompliant
Work and may require its replacement at no cost to UGAA. UGAA has the absolute right to
stop Work on part or all of the Work in the event of breach or default, during any cure period,
or any period thereafter during which Defective Work or Noncompliant Work remains
uncorrected. Such Work stoppage shall not be cause for: (1) extension of the Contract Time; (2)
additional compensation to CM; (3) reallocation of CM Contingency Account funds; or (4)
increase of the GMP.
E.
Termination for cause. Upon CM’s failure to timely cure a noticed condition of default, or upon
CM’s failure to cure any breach hereof, UGAA, without prejudice to any other right or remedy
it may have, may (but is not required to) terminate this Agreement for cause, issuing formal
notice thereof to CM and its Surety.
1.
Upon its issuance of formal notice of termination, UGAA may take one or more of the
following courses of action:
a.
Order CM to stop Work (and order CM to install post-termination stabilization
of the Work and the Project site);
b.
Suspend all payments to CM until the Project is complete and UGAA has
determined what amounts, if any, may be due CM after UGAA recovers all of its
costs and expenses (including but not limited to attorneys’ fees) related to the
default;
c.
Exclude CM from the Project site, with UGAA assuming: (i) possession and use
at-will, as long as needed, of all Work-in-Place as well as tools, property, and
equipment on-site; and (ii) permanent possession and use of materials for which
UGAA paid CM, whether or not stored on-site;
d.
Perform the Work itself, or engage others to perform it, deducting the cost of
substitute performance (and all other costs incurred by UGAA related thereto,
including without limitation security and legal fees) from amounts owed to CM,
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and, where those amounts are insufficient to cover the cost incurred by UGAA,
obtain immediate reimbursement from CM of those costs;
e.
Exercise UGAA’s right to assignment of Subcontracts;
f.
Insist on CM’s Surety’s complete performance of the Work; and/or
g.
Recover its losses and damages (including without limitation attorneys’ fees and
related costs and expenses) from CM’s Surety.
2.
In event of termination for any reason, in no case shall CM be entitled to payment of lost
or anticipated profits, home and field office overhead, consequential damages and/or
indirect damages or costs – or to direct costs or damages that are not justified hereunder
or not actually incurred and expended before the day the notice of termination is issued,
claims to all of which are hereby waived. Any rebates or refunds of pre-paid costs shall
be remitted by CM to UGAA.
3.
If UGAA terminates this Agreement for cause, but that cause later be deemed by a court
to be unjustified or somehow wrongful, the termination shall then be deemed to be
converted to termination for convenience.
F.
Force Majeure. UGAA may at any time suspend or terminate this Agreement as a consequence
of circumstances or events related to acts of God, national emergency, war or terrorism, acts or
omissions of government, environmental calamity, or any reasons beyond the control of UGAA,
with amounts owing to CM limited to payment for compliant Work-in-Place on the date of the
precipitating act or event (in the case of an act of God, war or terrorism, or government) and
reasonable direct expenses incurred as a result of termination – or, in others cases involving
circumstances beyond UGAA’s control, on the date that UGAA’s notice of invocation of force
majeure termination or suspension notice is delivered to CM. In either case, amounts owing to
CM shall not include lost profits or any compensation for indirect or consequential costs, or for
direct costs not justified hereunder, claims to all of which are hereby waived.
G.
Labor-related schedule impacts. CM shall exercise all lawful means to avoid disruption or
interference with the Work or the Project Schedule due to actions by labor unions or their
members. If CM becomes aware of the possibility or occurrence that labor unrest or actions by
organized labor unions or their members have, are, or will likely impact the Work or the Project
Schedule, CM shall promptly notify the ADR and cooperate with UGAA in resequencing or
otherwise modifying the Work and/or the Project Schedule to minimize the impact of the labor
event to the degree possible. Work stoppage due to labor unrest or activities shall not be cause
for change of GMP.
H.
Termination for Convenience. UGAA may terminate this Agreement at any time for its own
convenience, with UGAA issuing notice thereof to CM and its Surety, with amounts owing to
CM being limited to payment for compliant and completed Work-in-Place on the date of
termination and costs incurred in performing site stabilization Work requested in writing by the
ADR at the time of the Notice of Termination for Convenience, which amounts will not,
however, except as provided in the foregoing, include: (1) lost or anticipated profits; (2) home
and field office overhead; (3) consequential damages or indirect damages or costs; or (4) direct
costs or damages that are not justified hereunder or not actually incurred and expended before
the day the notice of termination is issued – claims to all of which are hereby waived.
I.
Termination by CM. CM may terminate this Agreement upon thirty days’ notice only if: (1)
UGAA suspends the Work for more than ninety consecutive days without cause and for
reasons exclusively within UGAA’s control; or (2) amounts due and owing to CM remain
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unpaid (without excuse) sixty days after the due date for payment (subject to UGAA’s right to
withhold payment as otherwise provided herein). CM’s compensation therefore shall be limited
as provided in ¶¶ X(E)(2) and X(H).
J.
Post-termination protection of Work. Immediately upon receipt of notice of termination or
extended suspension of the Work, CM shall: (1) discontinue installation of new Work; (2) install
protective devices, covers, safety barriers, etc. approved by ADR so as to stabilize and protect
the Work-in-Place structurally and otherwise; (3) notify Sureties and insurers of termination or
suspension; (4) notify Subcontractors of the termination or suspension; (5) where appropriate,
facilitate assignment of Subcontracts to UGAA as then directed by UGAA; and (6) follow such
other instructions as are given by UGAA in the notice.
K.
Rights and remedies cumulative. The rights and remedies set forth in this Agreement are
cumulative and not exclusive or exhaustive – and they include those available at Law or in
equity. UGAA’s issuance of Notice of Pending Declaration of Default and/or Formal Notice of
Default or Termination of this Agreement are not conditions precedent to UGAA’s exercise of
any right or remedy. Either Party may avail itself of one or more of the rights and remedies as
its interest may require, without waiving its right to subsequently invoke any other right or
remedy to which it is entitled.
__
ARTICLE XI – INDEMNITY
A.
Generally. CM shall be responsible and liable to UGAA, UGA, the Board of Regents, and the
other Indemnitees indicated herein for all injury or damages of any kind (including but not
limited to consequential damages) resulting from any negligent act or omission or breach,
failure, or other default regarding the Work, the Project, and/or this Agreement by CM, or any
of its Subcontractors (of any tier), agents, representatives, employees, or others providing Work
at the direction of CM or on its behalf.
B.
Indemnification. CM hereby agrees to indemnify, hold harmless, and defend the University of
Georgia Athletic Association, Inc., and its departments, agencies, and instrumentalities and all
of their respective officers, members, employees, and directors (collectively referred to as
“UGAA Indemnitees”), and shall indemnify and hold harmless the University of Georgia, the
Board of Regents of the University System of Georgia, the State of Georgia, and their respective
departments, agencies, and instrumentalities and all of their respective officers, members,
employees, and directors (collectively referred to herein as the “State Indemnitees”) from and
against any and all claims, demands, liabilities, fines, losses, damages (including but not limited
to punitive damages), costs, or expenses, including attorneys’ fees, due to: (1) liability to a third
party or parties for any loss due to bodily injury (including death), personal injury, property
damage, and for any other harm or loss arising out of or resulting from the performance of this
Agreement or any act or omission on the part of CM, its agents, Subcontractors of any tier,
employees, or others working at the direction of CM or on its behalf; (2) any breach of this
Agreement by CM; or (3) CM’s misapplication or violation of any pertinent Federal, State or
local rule, regulation, or Law. This indemnification obligation extends to and binds the
successors and assigns (where permitted hereunder) of CM – and it survives the termination of
this Agreement and the dissolution or, to the extent allowed by Law, the bankruptcy of CM. If
and to the extent such damage or loss (including costs and expenses) as covered by this
indemnification is paid by the State Tort Claims Trust Fund, the State Authority Liability Trust
Fund, the State Employee Broad Form Liability Fund, the State Insurance and Hazard Reserve
Fund, and other self-insured funds (all such funds hereinafter collectively referred to as the
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“Funds”) established and maintained by the State of Georgia Department of Administrative
Services Risk Management Division (hereinafter “DOAS”), CM agrees to reimburse the Funds
for such monies paid out by the Funds. This obligation is not avoided or limited by the waiver
of subrogation set forth in ¶ XII(J).
C.
Indemnification limited. The indemnification obligations set forth herein apply where the
Indemnitees are not responsible or are partially responsible for the situation giving rise to the
claim, provided however, that this indemnification does not extend to claims for losses, injuries,
or damages incurred by the Indemnitees that are caused by or result from the Indemnitees’ sole
negligence or their intentional or willful misconduct, or to claims for which the Georgia Tort
Claims Act is the exclusive remedy. This indemnification does not extend beyond the scope of
this Agreement and the Work undertaken hereunder.
D.
Fees and costs. CM’s duty to indemnify shall apply whether or not disputes are settled before
litigation proceedings; and it applies to an Indemnitee’s first costs in defense and all other
dispute-related costs, including but not limited to attorneys’ fees, expert fees, and disputerelated Design Professional fees. Each Indemnitee may, in all cases, select legal counsel and
experts of its choice; and CM shall pay the reasonable attorneys’ fees and costs incurred by
Indemnitees related thereto. Indemnitees are entitled to recover from CM all attorneys’ fees
incurred in establishing or enforcing their rights to indemnity hereunder.
E.
Implementation of indemnification. In addition to any other remedies and rights accruing to
UGAA hereunder, and not exclusive of any of them, if UGAA becomes entitled to
indemnification hereunder, it may demand and obtain CM’s immediate payment of indemnity
amounts to which UGAA is due, or, in the alternative, at its own election, it may deduct the
amounts to which it is due from any amounts then owing to CM hereunder and/or reduce the
GMP commensurately – by issuing a unilateral Change Order.
___
ARTICLE XII – INSURANCE
A.
Insurance required. Prior to commencement of the Work, CM shall procure and maintain the
insurance coverage specified below or coverage otherwise required by Law (whichever is
greater) – and (except with respect to Workers Compensation Insurance) shall list the
“University of Georgia (and its officers, directors, and employees)” as the Certificate Holders
and (except in the case of Professional Liability Insurance and Workers Compensation
Insurance) “the Board of Regents of the University System of Georgia,” the “University of
Georgia,” and the “University of Georgia Athletic Association, Inc.” as named “Additional
Insureds” – and covering their respective officers, members, shareholders, directors,
representatives, and employees as Additional Insureds.
B.
Proof of insurance. Concurrent with execution of this Agreement, and between thirty and sixty
days before the annual renewal date of each policy of insurance during the performance of the
Work, and at any other time requested by the ADR, CM shall provide to the ADR, as a
condition precedent to UGAA’s obligation to pay amounts due hereunder: (1) completed
certificates of insurances in the form acceptable to the ADR; and (2) a complete copy of each
Policy of Insurance (together with copies of all express Additional Insureds and all other
endorsements attached) – together with proof of renewal thereof. By submitting the certificates
of insurance required here, CM represents that the coverage is in place in the amounts stated
and that CM will take all steps necessary to maintain such coverage throughout the course of its
performance of the Work and its obligations hereunder.
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C.
Certificates of insurance. The certificates of insurance must indicate the following: (1) Name
and address of authorized agents; (2) Name and address of insured; (3) Name of insurance
company(ies); (4) Description of policies and their coverage; (5) Policy Number(s); (6) Policy
Period(s); (7) Limits of liability; (8) Name and address of the University of Georgia (and its
officers, directors, and employees) as Certificate Holders (except with respect to Workers
Compensation policies) at the address indicated below in this ¶ XII(C) and (except for
Professional Liability Insurance and Worker Compensation policies) the Board of Regents of the
University System of Georgia, the University of Georgia Athletic Association, Inc., and the
University of Georgia (and their officers, directors, and employees) as named “Additional
Insureds”; (9) Project name and number (or other Project identification indicated in the
information preceding Article I of this Agreement); (10) Signature of authorized agent; (11)
Telephone number of authorized agent; and (12) Mandatory thirty-day notice of cancellation or
nonrenewal, as required in ¶ XII(D)(1).
Except as otherwise provided herein, on all certificates of insurance, the Certificate Holders
shall be identified as follows:
University of Georgia (and its officers, directors, and employees)
c/o Office of the University Architects
382 East Broad Street
Athens, Georgia 30602
D.
Insurer qualifications, insurance requirements, policy provisions. The policies of insurance
required below: (i) shall be issued by a company licensed by the Insurance Commissioner to
transact the business of insurance in the State of Georgia for the applicable line of insurance;
and (ii) shall be issued by an insurer (or, for qualified self-insureds or group self-insureds, a
specific excess insurer providing statutory limits) with Best Policyholders Rating of “A-” or
better and with a financial size rating of Class V or larger. Each such policy shall contain the
following provisions:
1.
The insurance company agrees that the policy shall not be cancelled, changed, allowed
to lapse, or allowed to expire until thirty days (ten days in the event of cancellation for
nonpayment of premium) after UGAA, UGA, and the Board of Regents have each
received written notice thereof as evidenced by return receipt of registered or certified
letter or until such time as other insurance coverage providing protection equal to
protection called for in this Agreement shall have been received, accepted, and
acknowledged by UGAA, UGA, and the Board of Regents. Such notice shall be valid
only as to the Project indicated on page one of this Agreement.
2.
The policy shall not be subject to invalidation as to any insured by reason of any act or
omission of another insured or any of its officers, directors, members, employees, agents,
or other representatives (“Separation of Insureds”).
3.
Each Insurer is hereby notified that the statutory requirement that the Attorney General
of Georgia shall represent and defend the State Indemnitees remains in full force and
effect and is not waived by issuance of any policy of insurance. In the event of litigation,
any settlement on behalf of any of the State Indemnitees must be expressly approved by
the Attorney General. UGAA and its insurance carrier may retain, but are not obligated
to retain, counsel to assist with the defense of the Indemnitees, in which case there will
be mutual cooperation between the Attorney General and attorneys for UGAA. See
O.C.G.A. § 45-15-12.
4.
All deductibles shall be paid by CM.
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5.
E.
Self-insured retention, except for qualified self-insurers, in any policy shall not exceed
the amount stated in Article I.
Required insurance coverages. CM agrees to purchase and have the authorized agent state on
the insurance certificate that the following types of insurance coverages, not inconsistent with
the policies and requirements of O.C.G.A. § 50-21-37, have been purchased by CM. The
minimum required coverages and liability limits are as follows:
1.
Workers Compensation. CM agrees to provide, at a minimum, Workers’ Compensation
coverage in accordance with the statutory limits as established by the General Assembly
of the State of Georgia. A group-insurer must submit a certificate of authority from the
Insurance Commissioner approving the group insurance plan. A self-insurer must
submit a certificate from the Georgia Board of Workers’ Compensation stating the CM
qualifies to pay its own workers’ compensation claims. CM shall require all
Subcontractors performing Work under this Agreement to obtain an insurance
certificate showing proof of Workers’ Compensation and shall submit a certificate on the
letterhead of CM in the following language prior to the commencement of the Work:
“This is to certify that all Subcontractors performing Work on the Project are covered by their
own workers’ compensation insurance or are covered by the CM’s workers’ compensation
insurance.”
2.
Employers’ Liability Insurance. CM shall also maintain Employers’ Liability Insurance
Coverage with limits of at least: (a) Bodily Injury by Accident - $1,000,000 each accident;
(b) Bodily Injury by Disease - $1,000,000 each employee; and (c) Bodily Injury/Disease
Aggregate - $1,000,000 each accident. CM shall require all Subcontractors performing
Work under this Agreement to obtain an insurance certificate showing proof of
Employers’ Liability Insurance Coverage and shall submit a certificate on the letterhead
of the CM in the following language prior to the commencement of the Work: “This is to
certify that all Subcontractors performing Work pertaining to this Agreement are covered by
their own Employers’ Liability Insurance or are covered by the CM’s Employers’ Liability
coverage.”
3.
Commercial General Liability Insurance. CM shall provide Commercial General
Liability Insurance (1993 ISO Occurrence Form or equivalent) which shall include, but
need not be limited to, coverage for personal injury (including death) and advertising
liability, fire legal coverage, bodily injury and property damage arising from premises
and operations liability, products and completed operations liability, blasting and
explosion, collapse of structures, underground damage, personal injury liability and
contractual liability. The Commercial General Liability Insurance must provide separate
aggregate limits per Project and shall provide at a minimum the following limits:
Coverage
Limit
Premises and Operations:
$1,000,000 per Occurrence
Products and Completed Operations:
$1,000,000 per Occurrence
Personal injury and Advertising:
$1,000,000 per Occurrence
Blasting and Explosion:
$1,000,000 per Occurrence
Collapse of Structures:
$1,000,000 per Occurrence
Underground Damage:
$1,000,000 per Occurrence
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Coverage
Limit
Fire Legal:
$1,000,000 per Occurrence
Contractual:
$1,000,000 per Occurrence
General Aggregate:
$2,000,000 per Occurrence
Additional Requirements for Commercial General Liability Insurance:
4.
a.
The policy shall name the University of Georgia (and its officers, directors, and
employees) as Certificate Holders, and the University of Georgia, the University
of Georgia Athletic Association, Inc., and the Board of Regents of the University
System of Georgia (and their respective officers, members, shareholders,
directors, representatives, and employees) as named Additional Insureds, but
only for such claims for which the Georgia Tort Claims Act, O.C.G.A. § 50-21-20
et seq., is not the exclusive remedy.
b.
The policy or policies must be on an “occurrence” basis.
c.
The policy must include separate aggregate limits for each rented premises and
Project.
Commercial Business Automobile Liability Insurance. CM shall provide Commercial
Business Automobile Liability Insurance that shall include coverage for bodily injury
and property damage arising from the operation of any owned, non-owned, or hired
automobile. The Commercial Business Automobile Liability Policy shall provide not less
than $1,000,000 Combined Single Limits for each occurrence.
Additional Requirements for Commercial Business Automobile Liability Insurance:
5.
a.
The policy shall name the University of Georgia (and its officers, directors, and
employees) as Certificate Holders, and the University of Georgia, the Board of
Regents of the University System of Georgia, and the University of Georgia
Athletic Association, Inc., (and their respective officers, members, shareholders,
directors, representatives, and employees) as named Additional Insureds, but
only for such claims for which the Georgia Tort Claims Act, O.C.G.A. § 50-21-20
et seq., is not the exclusive remedy.
b.
The policy or policies must be on an “occurrence” basis.
c.
The policy must include separate aggregate limits for each Project.
Builders Risk Insurance. CM shall provide a Builders Risk Policy with proceeds to be
made payable to the University of Georgia Athletic Association, Inc., the University of
Georgia, the Board of Regents of the University System of Georgia, and CM, as their
interests may appear. The policy amount shall be equal to 100% of the GMP (plus, in the
event of an renovation or modification of an existing structure, an amount equal to the
replacement value of the structure-in-place, as that may be reasonably determined in
UGAA’s good faith judgment) written on 1991 Causes of Loss – Special Form (Builder’s
Risk “All Risk”), or its equivalent. The policy shall be endorsed as follows:
The following may occur without diminishing, changing, altering, or otherwise affecting
the coverage and protection afforded the insured under this policy:
a.
Delivery of furniture and equipment to the insured premises and installation in
place ready for use; and
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6.
b.
Partial or complete occupancy by UGAA, UGA, or the Board of Regents; and
c.
Performance of work in connection with construction operations insured by
University of Georgia Athletic Association, Inc., by the Board of Regents, by
agents or lessees or other contractors of the University of Georgia Athletic
Association, Inc. or the Board of Regents.
d.
If the Work involves CM’s renovation, addition, or modification of an existing
structure and Builders Risk Insurance is not available, CM may supply an
Installation Floater Insurance Policy with the above endorsements in lieu of the
Builders Risk Insurance Policy. Such a Floater Policy must insure loss to
materials and equipment prior to acceptance by UGAA and/or the Board of
Regents and must be on an ALL RISK basis with the policy written on a specific
job site.
e.
The policy of insurance shall name the University of Georgia (and its officers,
directors, and employees) as Certificate Holders.
Professional Liability (Errors and Omissions) Insurance. If design responsibility has
been expressly delegated to CM as part of the Scope of Work hereunder, CM and its
DPD’s shall provide professional liability insurance coverage for its delegated design
services with limits of liability not less than the following:
a.
b.
c.
d.
For Projects with a GMP greater than $30,000,000:
i.
For DPD’s - $3,000,000 per claim and $4,000,000 in aggregate coverage;
ii.
For Subconsultant engineers and architects - $2,000,000 per claim and
$3,000,000 in aggregate coverage; and
iii.
For other consultants - $1,000,000 per claim and $2,000,000 in aggregate
coverage.
For Projects with a GMP between $20,000,000.01 and $30,000,000:
i.
For DPD’s - $2,000,000 per claim and $3,000,000 in aggregate coverage;
ii.
For Subconsultant engineers and architects - $1,000,000 per claim and
$2,000,000 in aggregate coverage; and
iii.
For other consultants - $1,000,000 per claim and $1,000,000 in aggregate
coverage.
For Projects with a GMP up to $20,000,000:
i.
For DPD’s - $1,000,000 per claim and $1,000,000 in aggregate coverage;
ii.
For Subconsultant engineers and architects - $1,000,000 per claim and
$1,000,000 in aggregate coverage; and
iii.
For other consultants - $1,000,000 per claim and $2,000,000 in aggregate
coverage.
Additional requirements for Professional Liability Insurance Policy:
i.
Defense costs shall be outside the policy limits stated above – i.e., they do
not reduce the coverage available to pay claims.
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7.
ii.
The policy shall name the University of Georgia (and its officers,
directors, and employees) as Certificate Holders.
iii.
DPD’s shall maintain the same coverage limits stated above, with the
same policy requirements stated above.
iv.
Professional Liability Insurance coverage may be provided by a practice
policy or project-specific coverage.
v.
Professional Liability Insurance shall contain prior acts coverage for
design services performed by the CM for this Project.
vi.
Regardless of the form of professional liability insurance policy provided,
all Professional Liability Insurance coverage shall be continued in effect
for two years following the Date of Final Completion of the Project.
Commercial Umbrella Liability Insurance. CM shall provide a Commercial Umbrella
Liability Insurance Policy to provide excess coverage above the Commercial General
Liability, the Commercial Business Automobile Liability, and the Workers’
Compensation, Employers’ Liability, and Professional Liability Insurance (if applicable)
to satisfy the minimum limits set forth herein. The minimum amount of Umbrella limits
required above the coverages and minimum limits stated above in this Article shall be:
If the GMP is less than $5,000,000:
If the GMP $5,000,000 or greater:
$2,000,000 per Occurrence; and
$2,000,000 per Occurrence; and
$4,000,000 Aggregate
$10,000,000 Aggregate
If the Work involves “Hot Work” as
indicated in ¶ XV(H)(3), increase the
foregoing to:
$10,000,000 per Occurrence; and
$10,00,000 Aggregate
Additional Requirements for Commercial Umbrella Liability Insurance:
i.
The policy shall name the University of Georgia (and its officers,
directors, and employees) as Certificate Holders, and the University of
Georgia, the Board of Regents of the University System of Georgia, and
the University of Georgia Athletic Association, Inc. (and their respective
officers, members, shareholders, directors, representatives, and
employees) as named Additional Insureds, but only for such claims for
which the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., is not the
exclusive remedy.
ii.
The policy must be on an “occurrence” basis.
F.
Insured amounts not determinative of liability limits. Coverage minimums set forth in this
Article shall not be construed to limit CM’s liability.
G.
Termination of obligation to insure. Unless otherwise expressly provided hereunder,
obligations to insure as provided herein shall not terminate until two years have passed after
the Realized Date of Substantial Completion of the Work or termination of this Agreement,
whichever comes earlier.
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H.
Failure to insure. CM is responsible for any delay and costs, damages, claims, and expenses
resulting from failure to furnish proof of proper coverage by insurers in the prescribed form. In
addition to, and not in lieu of, any other indemnification provided by CM hereunder, if CM (or
Subcontractors of any tier) fails to provide and maintain the coverage required hereunder or by
Law, CM is deemed to assume all risk of loss to which the Board of Regents, the University of
Georgia, and the University of Georgia Athletic Association, Inc. (and the other Indemnitees
indicated in ¶ XI(B)) may be exposed – and shall indemnify, defend, and hold harmless UGAA
and UGAA Indemnitees as indicated in ¶ XI(B) (and shall indemnify and hold harmless the
State Indemnitees as indicated in ¶ XI(B)) for all resulting Project-related losses, damages, costs,
and attorneys’ fees. CM accepts the affirmative obligation to ascertain that it and its
Subcontractors of any tier obtain and maintain policies of insurance with the coverage specified
herein.
I.
Survival. All rights of the Board of Regents, the University of Georgia, and the University of
Georgia Athletic Association, Inc. (and other UGAA and State Indemnitees indicated in ¶ XI(B))
under this Article, all CM’s insurance-related obligations (including the obligation to give notice
of lapse, expiration, renewal, non-diminishing coverage amounts), and UGAA’s right to
provide insurance shall survive termination and/or completion of this Agreement.
J.
Waiver of subrogation; management of proceeds of insurance. To the extent a Party to this
Agreement suffers a loss, and has, in fact, recovered for that loss by receipt of proceeds of a
policy of insurance, that Party and its insurer, waive subrogation of any claims against the other
Party (or Parties) or the other Party’s (Parties’) officers, directors, members, managers,
employees, partners, limited partners, shareholders, agents, attorneys, insurers, Sureties,
assigns, Design Professionals, DPD’s, Subcontractors, other or Separate Contractors, or others
providing Work or Services on the Project, their successors and predecessors in interest, and
any parent and subsidiary organizations related to any of them, whether or not the loss suffered
was caused solely by the negligence of the recovering Party, and whether a duty of indemnity
exists. This waiver of subrogation does not reduce or limit the right of the Board of Regents,
UGA, and UGAA to indemnification by CM as otherwise provided hereunder or under Law;
nor does it avoid CM’s obligation to reimburse the Funds as provided in Article XI. UGAA shall
have the power to adjust and settle claims with insurers. Before CM can apply any proceeds
from policies of insurance for its own purposes, it must remit proceeds of insurance received to
UGAA (for UGAA’s adjustment and redistribution in accordance with this Agreement);
thereafter, before CM can apply amounts redistributed to it by UGAA or an insurer, it must pay
all amounts due to Subcontractors, and it must cause all amounts due to be paid to lower-tier
Subcontractors.
K.
UGAA’s right to provide. In addition to any other remedies the Board of Regents, UGA,
and/or UGAA may have, if CM fails to provide insurance policies and coverage as required
herein (or renewals thereof), the Board of Regents, UGA, and/or UGAA may, but are not
required to, obtain insurance coverage that CM has failed to provide. In that event, UGAA,
UGA, and/or the Board of Regents may recover the cost of the coverage obtained by UGAA’s
issuing a deductive unilateral Change Order, reducing the GMP by an amount equal to the sum
of the premiums paid by UGAA, UGA, or the Board of Regents for replacement coverage – plus
other losses and costs (including but not limited to attorneys’ fees) incurred by any of them
related to or arising out of CM’s failure to provide the requisite coverage.
L.
Maximum deductible. No policy of insurance may contain a deductible in excess of
$100,000.00.
__
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ARTICLE XIII - PERFORMANCE AND PAYMENT BONDS
A.
Performance and Payment Bonds. CM shall furnish bonds covering the faithful performance of
the Agreement (“Performance Bond”) and CM’s payment of obligations hereunder (“Payment
Bond”). As a condition precedent to UGAA’s obligation to pay, CM shall deliver to the ADR, at
the time set forth in ¶ I(L) above, executed originals and two executed copies of required Bonds.
The University of Georgia Athletic Association, Inc. shall be Obligee on the Bonds; and the
“Board of Regents of the University System of Georgia” and the “University of Georgia” shall
be named Additional Obligees on the Bonds. Bonds shall be provided in the forms provided as
Supplement J or in such other form as may be approved by UGAA. The Performance and
Payment Bond Surety shall be obligated to perform all obligations of the CM, including any and
all liquidated damages and indemnity obligations. In addition to its other performance and
payment obligations under the Bonds, in the event of CM default, Surety will be responsible to
UGAA, UGA, the Board of Regents, and any other obligees for payment of attorneys’ fees and
all other costs arising out of or relating to conditions of default, breach of this Agreement,
and/or termination of this Agreement.
B.
Required qualifications for Sureties. Sureties and insurance companies must be those
acceptable to UGAA and the Board of Regents. Only those Sureties listed in the Department of
Treasury’s Listing of Approved Sureties (Department Circular 570) will be acceptable. All
Bonds at the time of issuance must be issued by a company authorized by the Insurance
Commissioner to transact the business of suretyship in the State of Georgia, and shall have a
Best Policyholders Rating of “A-“ or better with a financial size rating of Class V or larger. CM
shall require the attorney-in-fact who executes the Bonds on behalf of a Surety to affix thereto a
certified and current copy of the power of attorney.
C.
Penal amount of Bonds. With respect to Bonds issued before execution of the GMP Change
Order, supply Performance and Payment Bonds with penal sums as set forth in ¶ III(L)(1)(e).
CM agrees that each Performance Bond and Payment Bond must, upon execution of the GMP
Change Order, be issued with a penal amount equal to at least 100% of the GMP. Accordingly,
the CM warrants and agrees that, for any Change Order increasing the GMP by five percent or
more or when the GMP has increased by five percent or more, it shall obtain a written
amendment to the Payment Bond and the Performance Bond increasing the penal amount of
each Bond to 100% of the GMP, effective as of the date of the Change Order. If the subject
Change Order is not the result in whole or in part of CM’s failure to fully perform its obligations
hereunder, the premium increase, if any, may be properly included in the cost of any Change
Order (as long as it is expressly denominated as such as part of the CM Construction Overhead
Cost element in the related PCO). CM’s provision of an amendment increasing the penal sum of
the Bonds as a result of such a Change Order is a condition precedent to UGAA’s obligation to
pay for the changed Work that is the subject of that Change Order.
D.
Proof of Bond. Upon request of any person or entity appearing to be a potential beneficiary of a
Payment or Performance Bond, CM shall promptly furnish a copy of the Bond to the requesting
person or entity. CM shall immediately notify the ADR of the request and its fulfillment, emailing a copy thereof to ADR.
E.
Failure to purchase or maintain Bonds. In addition to other indemnification required herein, if
UGAA, UGA, the Board of Regents or any other obligees are damaged by CM’s failure to obtain
or maintain the requisite Bonds, CM shall indemnify, defend, and hold harmless UGAA and
UGAA Indemnitees as indicated in ¶ XI(B) (and shall indemnify and hold harmless the State
Indemnitees indicated in ¶ XI(B)) from all claims, damages, costs, expenses, and attorneys’ fees
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incurred by UGAA, UGA, the Board of Regents, or any other obligee or Indemnitee hereunder
or under the Bonds as a result of that failure.
__
ARTICLE XIV – INTELLECTUAL PROPERTY AND CONFIDENTIALITY
A.
License – and assignment and transfer.
1.
License. Copyrights and other intellectual property rights held by CM and/or its
Subcontractors in materials, images, designs, and drawings created before execution of
this Agreement (“Preexisting Material”) shall continue to be held by the CM and its
Subcontractor(s) as the case may be. To the extent that Preexisting Material is used in the
creation of technical drawings, architectural works, and other intellectual property used
or related to the Project, the copyright holder thereto hereby grants an irrevocable, nonexclusive license to UGAA, UGA, and the Board of Regents to reproduce, modify,
display, distribute and make any other prospective use of the Preexisting Material.
2.
Assignment and transfer. CM irrevocably assigns ownership of and transfers to UGAA
(and such designees as UGAA may duly appoint in writing) all exclusive copyrights,
trade dress, and other intellectual property rights in all Project-related text, designs,
drawings, specifications, Construction Documents, shop drawings, RFI’s, PCO’s, ASK’s,
architectural works, building designs, reports, completed forms, models, computer files,
BIM’s, instruments of service, surveys, or other documents, expression, and other Project
Information provided or created by CM in course of performance of the Work
(“Expression”), whether produced, prepared, created, fixed, or otherwise used or
reproduced in print or digital (electronic) form by CM or its Subcontractors of any tier,
this assignment and transfer being effective upon creation. This assignment and transfer
(as well as the license-back indicated below) also applies to all Expression that comprises
derivative works created by modifying Preexisting Material and any other expression.
B.
Confirmation of assignment and transfer by Subcontractors to UGAA. CM will obtain from
its Subcontractors, and from all copyright holders and other owners of intellectual property
contained or employed in the Expression and in works underlying derivative Expression
provided by CM or its Subcontractors, written licenses or assignments and transfers (as the case
may be under ¶ XIV(A) above) to UGAA of all copyrights and other intellectual property rights
consistent and coextensive with the license or assignment and transfer provided under ¶
XIV(A).
C.
Scope of assignment and transfer. CM acknowledges and agrees for itself and its
Subcontractors that the license and assignment and transfer of copyrights and other intellectual
property rights provided in this Article memorializes an implied and understood agreement to
license Preexisting Material and assign and transfer to UGAA all copyrights and other
intellectual property rights in Expression previously created for, or provided to, UGAA by CM
or its Subcontractors of any tier related to this or previous projects for UGAA.
D.
Warranty of ownership. CM warrants for itself and its Subcontractors of any tier that: (1) it
holds exclusive copyrights and other intellectual property rights in all Preexisting Material and
Expression that it has prepared, created, or provided (or will prepare, create, or provide) for (or
has used or will use for) UGAA and this Project or otherwise has the right to license or assign
and transfer to UGAA the rights licensed or assigned and transferred in this Agreement; (2) its
use, licensing, assignment, and transfer to UGAA of copyrights and other intellectual property
rights will not infringe upon the copyrights or other intellectual property rights of others; (3)
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CM is entitled to license or assign and transfer all exclusive copyrights and other intellectual
property rights to UGAA in accordance with this Article; and (4) CM has not licensed, sold, or
otherwise conveyed to any other person or entity (by contract or operation of Law) the
copyrights or other intellectual property rights assigned and transferred herein.
E.
Prospective limitations of use. CM agrees for itself (and its Subcontractors) that it (and they)
will not further reproduce, distribute, display, transmit, or otherwise use the Expression or
materials received from UGAA or created for UGAA – except where specifically allowed herein
and approved in advance in writing by the ADR or the undersigned representative of UGAA,
which approval can be withheld for any reason.
F.
Conditional, limited, revocable, nonexclusive, License-back to CM. Upon assignment and
transfer of the copyrights and other intellectual property rights in Project Information and other
Expression to UGAA as provided pursuant to ¶ XIV(A)(2) above, UGAA, in turn, grants a
revocable, nonexclusive, license-back (“License-back”) to CM to: (1) reproduce, distribute, and
modify Expression as needed to perform Project-related Work for UGAA; (2) retain, in
confidence, after Project completion, one complete print and one digital copy of the Expression
for its archives; and (3) reproduce and modify for its own use on other projects only those
isolated elements or components of the Expression that were originally created by CM or its
Subcontractors that: (a) standing alone, cannot be visually or electronically identified or
recognized by persons skilled in such matters as being drawings, specifications, or building
designs, models, and/or other Project-related creative Expression or other UGAA-related
Project Information (or parts thereof); and (b) are not part or product, in whole or in part, of
data, designs, standards, and/or other input or information provided directly or indirectly by
UGAA. Determination of the foregoing shall be in the sole discretion of UGAA, acting in good
faith.
G.
Execution of coordinate documents. CM agrees to sign documents, upon request, that will give
effect to the license or assignment and transfer of intellectual property rights referred to in this
Article; and CM will assist UGAA in the registration, recordation, protection, and enforcement
of those rights.
H.
Royalties, fees, and licenses. CM shall pay all royalties, assignment and transfer fees, license
fees, and other costs to obtain the necessary licenses, copyrights, trademark rights, patent rights,
and other instruments of authority necessary to perform the Work, to give effect to the license
or assignment and transfer provided in ¶ XIV(A), and to create, prepare, present, reproduce,
modify, and distribute the Project Information and Expression.
I.
Indemnity. In addition to any other indemnification to which UGAA and other Indemnitees
indicated in Article XI are entitled, CM agrees to indemnify, defend, and hold harmless UGAA
and UGAA Indemnitees as indicated in ¶ XI(B) (and to indemnify and hold harmless the State
Indemnitees as indicated in ¶ XI(B)) from any and all claims, damages, judgments, liens,
lawsuits, losses, costs, expenses, including attorneys’ fees, and any other demands of any kind,
related to the Work and this Agreement involving actual or alleged copyright, patent, or other
forms of intellectual property infringement, misappropriation of documents, misdesignation of
origin of CM’s Expression (or that of its Subcontractors), CM’s failure to obtain intellectual
property rights, or third-party demands for royalties, damages, etc. pertaining to documents,
materials, and expression of CM (or that of its Subcontractors) regardless of whether litigation is
involved.
J.
Return of Project Information. Upon termination of this Agreement, or otherwise upon request
of ADR, CM shall deliver to a place designated by the ADR all printed and electronic copies of
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Project Information, and other Project-related documents, files, and Expression except that CM
can keep one record set of both printed documents and electronic files (with back-up) for its
archival records (but not for further reproduction, modification, or distribution, except as
provided in ¶ XIV(F)).
K.
No implied licenses. Except for the express License-back permitted in this Article, no other
license, license-back, or right to Project-related intellectual property, Project Information, or
other Expression is expressly or impliedly granted by UGAA to CM or others.
L.
No assignment or transfer of UGAA’s exclusive rights. Nothing in this Agreement shall be
construed as an assignment or transfer by UGAA of its exclusive copyrights or other intellectual
property rights held by UGAA, UGA, or the Board of Regents.
M.
No sublicenses permitted. Copyrights licensed back to CM hereby shall not be sublicensed or
transferred to others; and any attempt to do so shall operate to terminate the License-back
granted herein.
N.
License-back terminable. The License-back granted to CM in this Article is revocable and
terminable by UGAA upon notice to CM upon an occurrence of CM default or breach of this
Agreement.
O.
Prohibition on reproduction of UGA-related marks, logos, graphics. CM agrees that marks,
logos, and graphics related to UGA and UGAA are valuable intellectual property, and that
misuse or misappropriation of them will damage UGAA, UGA, the Board of Regents, and/or
related entities. CM agrees that its reproduction, display, distribution, modification, or any
other use of UGA or UGAA-related expression, marks, logos, or graphics without the advance,
express, written, consent of UGA (and/or UGAA, as the case may be) shall be deemed an
infringement of their respective intellectual property rights – and that the same is true if an
infringement by others was merely contributed to or enabled by some act of CM or a
Subcontractor of any tier.
P.
1.
CM acknowledges that this Agreement grants no license to CM or others to reproduce,
distribute, modify, display, or otherwise use UGAA and/or UGA-related marks, logos,
and graphics – except as strictly limited by the revocable, nonexclusive License-back
indicated in this Article.
2.
Photographs taken of the Project or the Property shall not reveal or include UGA or
UGAA-related marks, logos, or graphics. The only exceptions to this are where: (a) CM’s
photographic documentation is required to perform the Work (and is distributed solely
to UGAA or UGA); or (b) CM prepares or obtains photographs of a building or Project
for purposes of its own portfolio of work (“Portfolio Images”), use of which is strictly
limited to: (i) display only in printed (paper) form; or (ii) in-room non-transmitted
projection by CM. In the case of either (i) or (ii), each Portfolio Image must be approved
in advance in writing for each specific use by the person signing below for UGAA (or his
or her successor, duly appointed). UGA’s or UGAA’s approval of that use may be
refused or revoked for any reason, in the discretion of UGAA, UGA, or the Board of
Regents.
Nonparty licenses to UGAA required. To the extent that photographs, renderings, models, or
other images, objects, or other media and vehicles of expression depicting the Project are
created at the request of CM (or Subcontractors of any tier) by nonparties to this Agreement
(including but not limited to photographers, model makers, renderers, etc.), CM must provide
UGAA with the following: (a) reproducible copies of all print and digital images, objects, or
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other vehicles of expression created or fixed by nonparties pertaining to the Project or the Work;
and (b) an irrevocable written license from the nonparty author and/or copyright holder
allowing UGAA, UGA, and the Board of Regents to reproduce, distribute, display, modify, or
publish those images, objects, or other media and vehicles of expression for their own purposes.
The license set forth in this paragraph does not contemplate further sublicensing by UGAA,
UGA, or the Board of Regents to persons or entities not affiliated with them when that
sublicensing would be for purposes and uses other than those of UGAA, UGA, or the Board of
Regents.
__
ARTICLE XV - SPECIAL CLAUSES
A.
Drug-free Workplace Act. By signing this Agreement, CM certifies that CM and its
Subcontractors of any tier will provide a drug-free workplace for their respective employees
and will not engage in the unlawful manufacture, sale, distribution, dispensation, possession, or
use of a controlled substance or marijuana in the workplace during performance of the Work.
See O.C.G.A. § 50-24-1 et seq.
1.
In accordance with the Drug-free Workplace Act of 1990, CM must certify that a drugfree workplace will be provided for CM’s employees and those of its Subcontractors;
and persons violating this prohibition will be subject to discipline or dismissal.
2.
CM must publish a statement notifying its employees and Subcontractors that the
unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled
substance or marijuana is prohibited in the CM’s workplaces and those of its
Subcontractors; and that persons violating this prohibition will be subject to discipline
and dismissal; and that violations of this prohibition may subject CM and/or
Subcontractors to a declaration of Default and Termination for Cause.
3.
CM must establish, prior to commencement of the Work, a drug-free awareness
program to inform its employees about: (a) the dangers of drug abuse in the workplace;
(b) CM’s policy of maintaining a drug-free workplace; (c) any available drug counseling,
rehabilitation, and employee assistance program; and (d) the penalties that may be
imposed upon employees for drug abuse violations.
4.
CM must provide each employee with a copy of the statement referred to in ¶ XV(A)(2).
5.
CM must notify each employee in the statement provided for in the immediately
preceding subparagraph that, as a condition of employment, the employee shall abide
by the terms of the statement and shall notify CM of a criminal drug statute conviction
for a violation occurring in the workplace within fourteen days of the conviction.
6.
CM shall give written formal notice to UGAA within ten days after receiving from an
employee or a Subcontractor a notice of conviction or otherwise receiving actual notice
of such conviction.
7.
CM shall make a good faith effort on a continuing basis to provide a drug-free
workplace for its employees.
8.
CM will include in any agreement or contract with a Subcontractor the Subcontractor’s
obligation to maintain a drug-free workplace and comply with this ¶ XV(A).
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9.
This ¶ XV(A) establishes minimum standards for CM and in no way limits or restrains
CM from implementing additional procedures and policies having the objective of
achieving and maintaining a drug-free workplace.
B.
Nondisclosure and confidentiality. CM agrees that information received from UGAA, UGA, or
the Board of Regents with respect to this Agreement and/or this Project shall be considered
confidential, and shall not be disclosed to others except: (1) where disclosure is requested or
approved by UGAA, UGA, or the Board of Regents, as applicable, in advance in writing; or (2)
where disclosure is required to satisfy an order of a court of competent jurisdiction, a valid
subpoena, or other legally valid demand under Law. CM agrees to immediately inform UGAA
of any demands for disclosure, and to assist UGAA, UGA, or the Board of Regents in
addressing or refuting those demands where appropriate. CM shall not contact or communicate
in any way with news media or others with respect to the Project, the Work, or this Agreement
– and it shall refer all inquiries from the public, journalists, news media, or others to the
undersigned representative of UGAA. This provision is binding on CM, as well as its
Subcontractors of any tier, and it shall survive the termination of this Agreement or completion
of the Work.
C.
Georgia Open Records Act demands. CM acknowledges and agrees that certain documents
collected or produced by a private person, firm, or corporation pursuant to a contract or other
agreement or understanding with or on behalf of UGAA or any governmental entity may be
subject to disclosure under the Georgia Open Records Act, O.C.G.A. § 50-18-70 et seq. Details
and procedures, including permissible exemptions and the means of claiming such exemptions,
are contained in the Act. CM agrees to notify the ADR in writing within twenty-four hours of
CM’s receipt of a request for records based on the Act, and shall assist UGAA, UGA, and/or the
Board of Regents, where appropriate, in complying with legitimate requests or resisting
illegitimate requests, as the case may be.
D.
Vehicles and roadways.
1.
Parking. Parking is not provided to CM, its Subcontractors, or their employees. When
vehicles are needed at or near the Property to perform the Work, it is CM’s sole
obligation to obtain day-specific permits from UGA Parking Services. If CM’s presence
is needed on an ongoing basis related to the Work, CM must arrange with UGA Parking
Services for a “Contractor Permit,” the cost of which is included in the CM Construction
Overhead Costs within the GMP. Designated “laydown” area taken from an existing
permitted parking area shall not be used as a “free parking area”; nor shall CM permit
the Project site, the Work Area, or any other area within its control to be used for
activities, occupancies, or parking not directly essential to the Work, except as approved
in advance in writing by ADR. CM shall be solely responsible for payment of all parking
fees – as well as all penalties, fines, tickets, etc. incurred due to CM’s failure (or that of its
Subcontractors of any tier) to adhere to the requirements of this Agreement.
2.
Roadway and parking lot closings. If performance of the Work requires temporary
excavation of public streets, roads, or other public ways or location of CM’s vehicles or
personnel in places that could potentially interfere with pedestrian or vehicular
movement or use of UGA facilities, and if that use is, in the opinion of UGAA and UGA,
permissible, CM shall arrange at least five days in advance to procure permits and
assistance from authorized representatives of UGA, local public works agencies, and/or
governmental entities having jurisdiction over walks, roadways, and the other affected
means of pedestrian or vehicular movement or use of UGA or UGAA facilities. All fees
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and costs associated with obtaining permits for such road and parking lot closures shall
be borne by CM, and included in CM Construction Overhead Costs within the GMP.
3.
Norfolk-Southern Railroad. CM’s Work or operations shall not encroach on the rightof-way of the Norfolk-Southern Railroad which passes through UGA campus; nor shall
CM interfere with operations of rail line at any time.
E.
Compliance with Executive Orders concerning ethics. CM warrants that it has complied in all
respects with the Governor’s Executive Orders concerning ethics matters, including, but not
limited to, Executive Order dated January 13, 2003 (establishing Code of Ethics for Executive
Branch Officers and Employees, including provisions governing former officers and
employees), and Executive Order dated October 1, 2003 (governing vendors to state agencies
and disclosure and registration of lobbyists). In this regard, CM certifies that any lobbyist
employed or retained by CM or its employees has both registered and made the required
disclosures required by the Executive Orders, as amended, and by any other applicable Law.
F.
Prohibition against contingent fees. As required pursuant to O.C.G.A. § 50-22-6(d), CM
warrants that it has not employed or retained any company or person, other than a bona fide
employee working solely for CM, to solicit or secure this Agreement and that CM has not paid
or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide
employee working solely for CM, any fee, commission, percentage, gift, or other consideration
contingent upon or resulting from the award or making of this Agreement.
G.
Hazardous Materials.
1.
Definition. The term “Hazardous Materials” shall mean any material or substance
within the meaning and definition for “Hazardous Substance” and/or “Hazardous
Waste” as those terms are employed and set forth in the Georgia Hazardous Site
Response Act and the Comprehensive Environmental Response Compensation and
Liability Act as amended, 42 U.S.C. § 6901 et seq., and regulations promulgated
thereunder (collectively, “CERCLA”) and any corresponding state or local Law or
regulation, and also shall include: (a) any Pollutant or Contaminant as those terms are
defined in CERCLA; (b) any Solid Waste or Hazardous Constituent as those terms are
defined by, or are otherwise identified by, the Resource Conservation and Recovery Act
as amended, 42 U.S.C. § 6901 et seq., and regulations promulgated thereunder
(collectively, “RCRA”); (c) all materials defined as hazardous by all federal, state, and
local Laws, rules, regulations, ordinances, programs, permits, guidance, orders, and
consents decrees related to health, safety, and environmental matters, including, but not
limited to: the Resource Conservation and Recovery Act, as amended, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as
amended, the Toxic Substances Control Act, as amended, the Clean Water Act, as
amended, the Superfund Amendments and Reauthorization Act of 1986, as amended,
state and federal superlien and environmental cleanup programs and Laws, and
regulations of the U.S. Department of Transportation, and any corresponding state or
local Law or regulation; (d) crude oil, petroleum and fractions of distillates thereof and
petroleum releases; (e) any other material, substance, or chemical defined, characterized,
or regulated as toxic or hazardous under any application Law, regulations, ordinance,
directive, or ruling including, but not limited to, asbestos or polychlorinated biphenyl
(“PCB”); and (f) any infectious or medical waste or environmental contamination as
defined by any applicable federal or state Laws or regulations. The term “Hazardous
Materials” does not include those materials that are expressly and specifically required
to be installed under the Contract Documents – nor those products and materials that
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are commonly used in construction and industrial practice so long as they are used in
accordance with the manufacturers’ instructions or Material Safety Data Sheets
(“MSDS”) issued for the product or materials.
2.
No UGAA representation on Hazardous Materials. UGAA does not guaranty or
represent that the site or facilities affected by the Work are completely free from
Hazardous Materials. Therefore, since asbestos and lead-based paint were commonly
used in construction materials, asbestos-containing, lead-based-paint-containing, or
other materials of a hazardous nature may be encountered during performance of the
Work – and CM shall exercise extreme care when demolishing, repairing, or otherwise
disturbing existing structures, systems, and materials.
3.
Notification and safety measures. CM shall immediately notify the ADR and Design
Professional (orally and in writing) of the presence and location of any physical evidence
of, or information regarding, the presence of Hazardous Materials at the Project Site of
which CM becomes aware.
a.
Hazardous Materials and Substances used on the Project site. Products
containing Hazardous Materials may be employed in the performance of the
Work by the CM and its Subcontractors as allowed by this paragraph as a means
and methods application or as part of its performance of the Work, such as
chemical used on the Project site, but only provided that: (i) such products are
used in accordance with the manufacturer’s instructions and MSDS’s; (ii) such
products are rendered harmless upon completion of the affected Work; (iii)
reasonable precautions can be and are taken to prevent foreseeable bodily injury
or death to persons involved in the Work or in its proximity, including the
ultimate users of the completed Work; (iv) CM shall make available to UGAA
and the Design Professional copies of MSDS’s for any such products used on the
Project site; and (v) CM shall immediately notify UGAA, Design Professional,
and appropriate regulatory agencies if there is a spill or release or misuse of any
such product used on the Project site that exceeds state or federal reportable
limits.
b.
Encounter of Hazardous Materials. If the CM encounters Hazardous Materials
on the Project site, the CM shall: (i) immediately cease installation of the Work or
that portion of the Work affected by or affecting such Hazardous Materials; (ii)
secure the contaminated area against intrusion; (iii) not disturb or remove the
Hazardous Materials; (iv) not proceed, or allow any Subcontractor to proceed,
with any Work or other activities in the area affected until such Hazardous
Materials have been properly remediated and until directed in writing by UGAA
as to the manner in which to so proceed; and (v) take any other steps necessary to
protect life and health and the surrounding environment. Where proper notice is
given by the CM, the CM shall be entitled to an equitable adjustment of the
Contract Time and the GMP as needed to compensate for the impact of any
required demolition, rework, shutdown, delay, protection of Work, disruption,
and start-up directly attributable to the encountering of Hazardous Materials on
the Project site for which CM is not in whole or in part responsible.
c.
Products and MSDS’s. CM shall not select, install, or otherwise incorporate any
products or materials containing Hazardous Materials within the Work Area or
Project site unless the products and materials are specifically required in the
Contract Documents. If CM (or a Subcontractor of any tier) has knowledge that,
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or has reason to believe that, an item, material, substance, or accessory within a
product or assembly selected by the CM may unlawfully contain Hazardous
Materials (as that term is defined in this ¶ XV(G)), it is CM’s responsibility to
secure a written certification from the manufacturer of any suspected materials
which identifies the specific Hazardous Material(s) contained, together with the
MSDS’s for such materials. A copy of the written certification shall be submitted
to UGAA and Design Professional.
H.
d.
Fill. No soil found on-site (or transported to the site from remote locations) that
contains debris, waste, or Hazardous Materials shall be used for fill, backfill, or
landscaping topsoil.
e.
Subcontractor responsibilities and warranties. Products that are specified by
reference standards or in a descriptive manner without a manufacturer’s name,
model number, or trade name, to be selected by CM, shall not contain Hazardous
Materials in any form, except as and to the extent permitted in this paragraph.
CM shall require that each Subcontractor of any tier warrant and certify to
UGAA and Design Professional that all materials, products, and assemblies
(other than those that are specifically and expressly required by the Contract
Documents) are free of Hazardous Materials. This warranty and certification
shall also cover and include all materials, components, and accessories not
specifically enumerated or detailed in the Contract Documents but which are
required by performance specifications or recommended by manufacturers for
complete installation of materials, products, and assemblies.
f.
Absolute prohibition against use of asbestos, formaldehyde, or leadcontaining products. Notwithstanding the foregoing, CM shall not specify or use
products that contain asbestos, formaldehyde, or lead on this Project; and shall
take all steps necessary to prevent their introduction to the Project, the Project
site, and the Work. CM shall submit to ADR certifications of adherence to this
requirement by CM, its Subcontractors, and its material suppliers in the form
supplied as Supplement S (or S1 as the case may be) as part of CM’s Closeout
Materials.
Miscellaneous clauses. To the extent implicated by the Scope of Work and the Contract
Documents, the following clauses will apply:
1.
Fumes. If CM is required in the performance of the Work to engage in activities, or to
use methods and materials, that result in fumes (including smoke) being generated and
dispersed in occupied areas, in addition to complying with all applicable codes,
regulations, ordinances, and other Laws, CM shall perform the Work in a manner that
shall minimize or completely eliminate the probability of such an occurrence. However,
if fumes of any nature are generated or released by the CM to occupied portions of a
building, such fumes shall be contained and exhausted from the spaces in accordance
with previously cited codes, ordinances, and Laws. If any CM-generated or CM-released
fumes spread to occupied spaces or areas, CM shall:
a.
Stop the Work causing fume generation or release;
b.
Contact the ADR (for the sole purpose of informing ADR of the occurrence of the
event);
c.
Determine the nature and extent of fume(s) release;
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d.
Purge all areas of these fumes; clean up areas if fumes deposited dirt or
particulate matter;
e.
Change Work methods to eliminate fumes;
f.
Continue Work only after steps “a” through “e” have been successfully
accomplished; and
g.
Notify ADR in writing within five days of the event regarding its specific details
and consequences.
2.
NFPA § 241. CM shall comply with all applicable provisions of NFPA Section 241,
Standard for Safeguarding Construction, Alteration and Demolition Operations,” latest
edition, which is incorporated by reference herein, as if set forth fully.
3.
Roofing and Hot Work. To complement the requirements of NFPA § 241 regarding
CM’s duties during the execution of Work, CM shall comply with the following
guidelines for all roofing projects and all other projects which require Hot Work (i.e.,
Work that includes any construction activity that presents a source of ignition, such as
welding, burning/cutting, heating, brazing and soldering). CM shall, prior to the start of
Work at the Project site, develop a documented fire safety plan for all areas included
herein. Such plan shall be the result of a complete assessment by CM to minimize the
potential for damage as a result of an uncontrolled fire, and must be submitted to
designated fire safety representatives of UGA for review and approval. The fire safety
plan must include, but need not be limited to, the description and documentation of
each of the following elements:
a.
b.
Control of combustibles.
i.
CM shall visually inspect entire Project location to identify combustible
and noncombustible construction. CM shall identify sealed, inaccessible
combustible spaces.
ii.
CM shall identify and relocate all movable combustibles at least 35 feet
horizontally from the Work involved. Where not possible, CM shall
protect such combustibles with flame-proof covers or otherwise shield
them with metal fire resistant guards or curtains.
Control of ignition.
i.
CM shall comply with the UGA documented Hot Work permit system
(which is incorporated herein), including the following minimum
requirements:
(A)
CM shall identify names and locations of fire watches for all Hot
Work operations.
(B)
CM shall identify timing and duration of all proposed Hot Work.
Permits shall be valid for the time specified on permit, as
appropriate for the Project needs.
(C)
CM shall employ dedicated fire watches, which shall be located in
direct visual contact of all areas of Hot Work operations including
the underside of combustible attic spaces. If area of proposed Hot
Work is not accessible from beneath, CM shall not under any
circumstances use torches or direct flame.
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ii.
c.
I.
(D)
CM shall maintain a daily log of activities, including accurate
Project records of all fire watch activities.
(E)
CM shall assign responsibility for overseeing fire watches to
specific individual(s) whose only duty is to watch for and to
prevent fires occurring due to Hot Work. This individual(s) shall
be listed on permit as responsible.
(F)
Each CM’s fire watcher shall employ an operable cellular phone
for immediate notification of fire department in the event of a fire.
(G)
CM shall be responsible for immediate fire department
notification in case of fire.
(H)
CM shall continue fire watches for at least one hour after any Hot
Work operations are completed.
CM shall comply with the following minimum suppression requirements:
(A)
CM shall provide 10 lb. multi-purpose dry chemical fire
extinguishers within 20 feet of the operation.
(B)
Where Hot Work is necessary in or near attic spaces containing
combustible materials, and is approved by UGA’s designated fire
safety representative, CM shall provide a charged hose line from
building standpipe or hydrant. This requirement shall be
coordinated with UGA’s fire safety coordinator to insure
standpipe or hydrant are available and that person(s) operating
the charged hose line is properly trained and qualified to operate
the hose.
(C)
CM’s fire watchers shall keep fire extinguishing equipment
readily available, and shall be trained in the proper use of all such
equipment; proof of such training shall be included in fire safety
plan.
Fire watch. If fire watches are required to be employed, CM shall retain an
independent consultant to provide a system of documented audits of compliance
with fire watch provisions and NFPA § 241. Approval of CM’s fire safety plan by
the UGA’s fire safety representative does not relieve CM from any duty to
protect UGAA, UGA, and Board of Regents property during the execution of
Work under this Agreement. CM is solely responsible for minimizing the
potential for fire damage while performing all Work under this Agreement. If
fire watch is approved by ADR, CM shall provide fire watch contact information
to the UGA Police Department twenty-four hours in advance of the fire watch.
Nothing in this provision shall be construed to waive or release CM from any
other fire watch requirements stated in ¶ III(E)(2) above or elsewhere in this
Agreement.
Rock blasting.
1.
Any use of explosives to remove rock must be approved in advance in writing by
UGAA, UGA, and applicable governmental public safety officials. All approved blasting
operations shall be in accordance with all regulations and other life safety, fire, and
building codes and other applicable Law. UGA has jurisdiction governing blasting on
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property of the Board of Regents. Unified Government of Athens-Clarke County
(“ACC”) has jurisdiction governing blasting within Athens-Clarke County on property
not owned by the Board of Regents. In the event CM encounters rock that requires
blasting, it shall immediately notify the ADR.
2.
If CM is allowed and permitted to remove the rock by blasting which is on public
property in Athens-Clarke County, it shall first obtain a permit from ACC Fire
Department (or other local fire and building authorities of government where
applicable). CM shall be solely responsible for obtaining necessary permits from ACC
Fire Department and other governmental agencies having jurisdiction over the Project to
include completing forms and paying all fees.
3.
If the use of explosives to remove rock is approved by ADR, then CM, a minimum of
seven days prior to commencing blasting activities shall provide ADR with the
proposed blasting schedule. CM shall also submit to ADR a completed and executed
“Blasting Checklist” – as indicated in Supplement R.
4.
Execution of this Agreement shall be considered conclusive proof that the CM is familiar
with ACC Fire Department regulations and procedures governing blasting on public
property within Athens-Clarke County – and with other pertinent regulations and
procedures in other jurisdictions. All costs associated with compliance with regulations
and other life safety, fire, and building codes or other applicable Law and any fees,
permits, monitoring, insurance, furnishing of adequate cover and blasting mats shall be
included in the Unit Prices to furnish and install complete in the event of differing site
conditions for removal of rock and removal of rock in trench. If a Unit Price for a
particular differing site condition is not included in the Contract Documents, the costs
associated with corrective Work and compliance shall be deemed to be included in the
GMP.
J.
Work on public water distribution system. Any Work on the public water distribution system
must be approved and inspected by applicable utilities and local government offices and must
be performed in accordance with the local governmental regulations. In Athens-Clarke County,
most water mains, fire hydrants and water meters are under the jurisdiction of the ACC. All
connections to the ACC water distribution system (or that of other utilities, agencies, or
authorities where applicable) shall be approved and inspected by the applicable utility, agency,
or authority. The current version of the construction specifications published by ACC Public
Utilities (available at www.athensclarkecounty.com) regarding water main construction is
incorporated by reference into this Agreement. For Projects in Athens-Clarke County, the CM
Subcontractor constructing the water distribution system improvements described in this
Agreement shall be on the ACC list of approved contractors. Final approval, acceptance and
payment for Work completed on the water distribution system will be contingent on acceptance
of the improvements by the ACC Public Utilities (for systems located in Athens-Clarke County)
or by the applicable agency, authority, or governmental body (for systems located outside
Athens-Clarke County). All costs associated with compliance of the water main construction
requirements shall be included in the Cost of the Work within the GMP.
K.
Backflow preventers. Any Work on backflow preventers must be approved and inspected by
applicable local government authorities and must be performed in accordance with the local
governmental regulations. In Athens-Clarke County, the Double-Check Backflow Preventer for
the fire main connection and Reduced Pressure Zone (RPZ) Backflow Preventers for the
domestic water connections are under the jurisdiction of the ACC. For Projects located in
Athens-Clarke County, the current version of the construction specifications published by ACC
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(available at www.athensclarkecounty.com) regarding cross-connection / back flow is
incorporated by reference into this Agreement. In other jurisdictions, the applicable
specification regarding cross-connection / back flow shall be incorporated by reference into this
Agreement instead. All costs associated with compliance of the cross-connection / back flow
construction requirements shall be included in Cost of the Work within the GMP.
L.
Work on public sanitary sewer collection system. Any Work on the public sanitary sewer
collection system must be approved and inspected by applicable local government authorities
and must be performed in accordance with the local governmental regulations. In AthensClarke County, most sanitary sewer mains and man-holes are under the jurisdiction of the ACC.
All connections to the ACC wastewater system shall be approved and inspected by ACC Public
Utilities. In other jurisdictions, similar approvals and inspections by the local authority or
agency in charge of wastewater shall be obtained by CM. The current version of the
construction specifications published by ACC Public Utilities (available at
www.athensclarkecounty.com) regarding wastewater system construction is incorporated by
reference into this Agreement. For Work within ACC, the CM Subcontractor constructing the
wastewater system improvements described in this Agreement shall be on the ACC list of
approved contractors. Final approval, acceptance and payment for Work completed on the
waste water system will be contingent on acceptance of the improvements by the ACC Public
Utilities (for systems located in Athens-Clarke County) or by the applicable agency, authority,
or governmental body (for systems located outside Athens-Clarke County). All costs associated
with compliance of the water main construction requirements shall be included in the Cost of
the Work within the GMP.
M.
No weapons on campus. Under Georgia Code § 16-11-127.1(b), weapons are not allowed on the
UGA campus or educational property owned by the Board of Regents. “Weapon” means and
includes any pistol, revolver, or any weapon designed or intended to propel a missile of any
kind, or any dirk, bowie knife, switchblade knife, ballistic knife, any other knife having a blade
of two or more inches, straight-edge razor, razor blade, spring stick, knuckles, whether made
from metal, thermoplastic, wood, or other similar material, blackjack, any bat, club, or other
bludgeon-type weapon, or any flailing instrument consisting of two or more rigid parts
connected in such a manner as to allow them to swing freely, which may be known as a nun
chahka, nun chuck, nunchaku, shuriken, or fighting chain, or any disc, of whatever
configuration, having at least two points or pointed blades which is designed to be thrown or
propelled and which may be known as a throwing star or oriental dart, or any weapon of like
kind, and any stun gun or taser as defined in subsection (a) of the Georgia Code Section 16-11106. The possession of a valid firearms permit, or a valid license to carry a concealed weapon,
does not exempt a person from the provisions of this or other Laws.
N.
No conflict of interest. CM covenants and represents that: (1) it has no interest and shall not
acquire any interest, direct or indirect, that would conflict in any manner or degree with the
performance required under this Agreement; (2) it shall employ no persons with such conflicts;
and (3) it has not violated any Laws prohibiting full-time appointive officials and employees of
the State of Georgia from engaging in transactions pertaining to this Project or the Property.
O.
County references. With respect to UGAA Projects not located in Athens-Clarke County,
references contained in this Article XV to Athens, ACC, the Unified Government of AthensClarke County, or other governmental units in Athens-Clarke County shall be deemed to apply
to the corresponding agencies or governmental authorities in the city and/or county in which
the Project is located.
P.
Construction and demolition waste management.
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1.
UGAA has implemented strict recycling and waste management policies for all waste
materials removed from project sites as a result of construction and demolition activities,
including but not limited to: asphalt; concrete, concrete block, concrete masonry units
(“CMU’s”), slump stone (decorative concrete block); rocks; brick; paper (including bond,
newsprint, cardboard, mixed paper, packing materials, and packaging); cement fiber
products (including shingles, panels, and siding); paint; glass; plastics; carpet and pad;
beverage containers; gypsum wallboard; ceiling tiles; porcelain plumbing fixtures;
fluorescent light tubes (per U.S. Environmental Protection Agency regulations); green
materials (e.g., tree trimmings and land clearing debris); metals (ferrous and nonferrous) (including, but not limited to, stud trim, ductwork, piping, reinforcing steel
(rebar), roofing, other trim, steel, iron, galvanized sheet steel, stainless steel, aluminum,
copper, zinc, lead, brass, and bronze); soils; and wood (non-pressure/chemically treated
wood) (including, clean dimensional wood, pallet wood, plywood, oriented strand
board (“OSB”), and particle board).
2.
CM is required to account for all waste materials removed from the Project, and to
recycle, salvage, or reuse, to the maximum practicable extent, all of the materials listed
above within 20 miles of the construction site. ADR may, upon request, provide
assistance to CM in identifying markets for recyclable materials. CM shall make
provision as practical for ADR to utilize any recycled materials and processed waste
materials on campus. If CM believes that recycling, salvage, or reuse of any of these
materials is impracticable, CM must inform ADR before commencement of construction,
and secure ADR’s written authorization for an alternative means of disposal.
3.
CM will be required to supply to UGAA on or before the preconstruction meeting a
Waste Management Plan which documents procedures to recycle, salvage, or reuse the
materials listed above, including: (a) separation, hauling and recycling procedures; (b)
material recovery facilities and their distance from job site; and (c) markets for each
material recovered. This plan must also address training and communications,
recordkeeping, and reporting requirements to assure that all waste materials are
accounted for properly. On or before the Realized Date of Substantial Completion, the
Plan shall be updated and submitted to ADR with the total quantities of each waste
material that was reused, salvaged, recycled, or disposed of, and the markets to which
these materials were directed, so that it provides documentation in a single source of
waste management performance on the Project.
4.
During construction, CM shall maintain records of: (a) each type of material removed
from the job site (including materials that are not recycled); (b) the name(s) of specific
end destinations for all materials removed (whether recycled or disposed of); and (c)
weights or measures of all types of materials removed. Every load of waste material that
leaves the site must be documented (including receipts, pictures or tickets from material
hauler or recovery facility) and reported to ADR on a monthly basis.
5.
UGAA retains the right to inspect, and subsequently approve or disapprove any and all
recycling end markets, reuse or salvage outlets, and/or waste disposal facilities that are
involved in the receipt of recyclables and/or waste materials generated from the Project.
Disapproval of such a market or outlet may be based on past or current violations of
federal or state environmental, health, or safety laws, improper disposal activities, risk
or liability exposure, excessive distance from the job site, or any other reason deemed
sufficient by UGAA.
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6.
Q.
CM shall include administrative and recordkeeping costs associated with Construction
and Water Management in the CM Construction Overhead Cost. All other associated
costs shall be included in the Cost of the Work as part of the GMP.
Environment; Clean Water Act; Georgia Water Quality Control Act; Georgia Soil Erosion and
Sedimentation Act.
1.
In addition to the terms and conditions stated below in this ¶ XV(Q), CM agrees to serve
as steward of air, land, water, plants, animals, and environmental, historical, and
cultural resources within its control pursuant to this Agreement; and, as such, agrees to
perform all Work in accordance with state, federal, and local environmental Laws, rules,
and regulations protecting those resources, including without limitation those requiring
sedimentation control and avoidance of erosion during land disturbing activities. CM
represents that it is familiar with federal, state, and local regulations and procedures
governing land disturbance activities. The cost of all Work required to comply with
local, state and federal Laws and ordinances is included in the CM Construction
Overhead Costs within the GMP.
2.
CM shall mark wetlands as indicated in the Construction Documents on layout
drawings of the site and shall erect adequate barriers to avoid intrusion into them and
sedimentary runoff or other impact of construction upon them.
3.
This Project is located within a watershed that may drain into waters of the United
States or the State of Georgia and storm water inlets and storm drainage associated with
the Project may drain directly into waters of the United States or the State of Georgia or
lands within the State of Georgia. All such waters and lands shall be protected from the
discharge of any Pollutant. CM shall insure that all construction activities conducted on
the Project site comply with all applicable provisions of the Clean Water Act, the
Georgia Water Quality Control Act, the Georgia Soil Erosion and Sedimentation Act,
and any rules, regulations, local ordinances and permits promulgated or issued
thereunder. The scope of this Project may require coverage under the NPDES Storm
Water Discharges Associated with Construction Activities permit and may require a
Land Disturbance Activity permit issued by a Local Issuing Authority.
4.
CM shall develop, implement, and maintain a site-specific spill response plan for the
Project that addresses loading and unloading, storage, and usage of containers and
materials with the potential for spillage, leakage, or other discharges and a site specific
erosion, sedimentation, and pollution control plan. CM shall maintain environmental
spill kits on-site at all times and shall insure that site personnel are properly and
adequately trained on the use of the spill kits.
5.
CM shall not conduct any construction activities within a twenty-five foot buffer along
the banks of any waters of the State of Georgia, unless a variance for this Project has
been issued by the Georgia Environmental Protection Division.
6.
CM shall not conduct any construction activities within a fifty foot buffer along the
banks of any waters of the State of Georgia that is classified as trout waters, unless a
variance for this Project has been issued by the Georgia Environmental Protection
Division.
7.
CM shall employ Best Management Practices (“BMP’s”) that are consistent with and no
less stringent than those practices contained in the most current “Manual for Erosion
and Sediment Control in Georgia” published by the State Soil and Water Commission. If
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BMP’s are not functioning as designed, CM shall immediately notify ADR and the
Design Professional by telephone and in writing. If the BMP’s required by the Contract
Documents are more stringent than those required by the most current “Manual for
Erosion and Sediment Control in Georgia,” then the requirements of the Contract
Documents shall apply. CM shall comply with local, state and federal soil erosion and
sedimentation control Laws in so far as it involves utility trenches and land disturbing
activities. Athens-Clarke County (ACC) Public Works has been granted jurisdiction over
land disturbance in Athens-Clarke County to include Board of Regents UGA property –
and is, for purposes of this ¶ XV(Q), a Local Issuing Authority, for Projects within
Athens-Clarke County.
8.
CM’s Superintendent must have a current Georgia Soil and Water Conservation
Commission Level 1A Certification. An individual with a current Georgia Soil and
Water Conservation Commission Level 1A Certification must be on-site at all times that
land disturbing activities are being performed.
9.
If the Project requires a Land Disturbance Activity Permit, prior to starting any land
disturbing activities, CM shall obtain the necessary Land Disturbing Activity Permit
from the Local Issuing Authority and shall identify itself as the twenty-four hour
contact. CM shall comply with all requirements of the Local Issuing Authority.
10.
If the Project requires coverage under the NPDES Storm Water Discharges Associated
with Construction Activities Permit, CM shall obtain that permit and shall:
a.
Sign the NPDES permit Notice of Intent promptly upon request of ADR (or
Design Professional and prior to beginning any construction activity on-site. CM
and UGAA shall be joint Primary Permittees. As the entity that has the primary
day-to-day operational control of those activities at the construction site
necessary to ensure compliance with Erosion, Sedimentation and Pollution
Control Plan requirements and permit conditions, CM shall be the Operator;
b.
Insure complete implementation of the Erosion Sedimentation & Pollution
Control Plan (“Plan”);
c.
Within twenty-four hours of the installation of the initial sediment storage
requirements and perimeter control BMP’s, CM shall notify, in writing (email is
acceptable), the ADR and the Design Professional stating that the initial
installation is complete and ready for inspection. The Design Professional who
prepared the erosion, sedimentation and pollution control plan shall issue by email or other means a letter of compliance or a letter listing deficiencies. CM shall
correct any deficiencies documented within two days of receipt of that letter and
shall schedule any follow-up inspections necessary to comply with the
requirements of the Permit, and insure that a letter of compliance is received by
the ADR from the Design Professional and placed in the Project records on-site;
and
d.
Insure daily inspections of vehicle entrances and exits and areas where
petroleum products are used, stored, or handled are conducted and documented
in a daily inspection report by Level 1A certified personnel. Daily Inspection
reports must include: (i) name of inspector; (ii) date of inspection; (iii)
observations; (iv) corrective actions taken; (v) any incidents of noncompliance;
(vi) signature of certified inspector; (vii) where reports do not identify incidents
of noncompliance, a certification that the entrances and exits and areas where
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petroleum products are used, stored, or handled are in compliance with the Plan
and the Permit must be included; and (viii) all daily inspection reports must be
retained in the Project records on-site.
11.
Contemporaneously maintain a daily rainfall log indicating the amount of rainfall at the
site during each twenty-four hour period. The rainfall log must have an entry for each
twenty-four hour period from the commencement of construction until Notice of
NPDES Permit Termination.
12.
Maintain all records required by the Permit on-site. The records shall be up to date, in
chronological order and readily available for review. The records shall include at a
minimum:
a.
A field set of as-built documents indicating any revisions to the civil and erosion
sedimentation and pollution control drawings. Any revision on the field set of
As-Built Construction Documents and shall be signed and dated by the Design
Professional of Record serving as engineer of record;
b.
Completed NOI form with certified mail receipt (request from ADR if CM does
not have a copy);
c.
Documentation of fee payment with certified mail receipt (request from ADR if
CM does not have a copy);
d.
Seven-day inspection letter of compliance from the Design Professional serving
as engineer of record;
e.
Daily, weekly, and post ½-inch rain event inspection reports generated by CM
and UGAA’s Testing Consultants;
f.
Rainfall data;
g.
Turbidity sampling results with certified mail receipts issued by UGAA’s Testing
Consultants (request from ADR if CM does not have a copy); and
h.
Summary reports of inspections and violation records with certified mail receipts
(request from ADR if CM does not have a copy).
13.
Upon signing the Notice of NPDES Permit Termination, provide to ADR an electronic
scanned copy of all records listed in sub-subparagraphs “a” thru “h” of the immediately
preceding subparagraph.
14.
Sign NPDES General Permit Notice of NPDES Permit Termination promptly after the
Design Professional and UGAA’s Testing Consultant issue a written statement that the
Project site has undergone final stabilization and that all storm water discharges
associated with the construction activity that were authorized by the Permit have
ceased.
15.
Duty to notify and correct the Work.
a.
CM shall immediately: (i) document in the site records and notify the ADR by
telephone and in writing, of the receipt of any warnings, citations, notices of
noncompliance, notices of permit violations or deficiencies, and/or stop Work
orders received from the Local Issuing Authority and/or the Georgia
Environmental Protection Division and/or the United States Environmental
Protection Agency; and (ii) provide copies thereof to the ADR. Within twenty-
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four hours of receiving any warnings or citations, CM shall inform the ADR in
writing of the corrective actions undertaken and/or planned.
b.
c.
CM shall complete corrective action within twenty-four hours or prior to any
impending rain events, whichever is sooner, of receiving any warnings, citations,
letters, emails, or other notices citing violations or deficiencies, from the Local
Issuing Authority, the Georgia Environmental Protection Division, the United
States Environmental Protection Agency, Design Professional, or UGAA’s
Testing Consultant related to the Clean Water Act, the Georgia Water Quality
Control Act, the Georgia Soil Erosion and Sedimentation Act, the Land
Disturbance Activities Permit or the NPDES Permit, or any other environmental
Law or regulation.
i.
If the appropriate corrective action is beyond the expertise of CM or will
involve a change in design, construction, operation, or maintenance,
which has a significant effect on a BMP with a hydraulic component, CM
must immediately notify the ADR and Design Professional and follow
ADR’s direction for implementing the corrective action.
ii.
If the appropriate corrective action is within the expertise of CM and does
not involve a change in design, construction, operation, or maintenance,
which has a significant effect on a BMP with a hydraulic component, CM
shall implement the corrective action, note the change or action taken on
the site Plan and have the revision on the site Plan signed and dated by
the Design Professional and ADR on their next visit to the site as being an
acceptable and appropriate change or corrective action.
With respect UGAA’s right to correct Defective Work (see ¶¶ III(M)(12)(d) and
X(C)), corrective Work not being completed by CM within twenty-four hours
prior to any impending rain events, whichever is sooner, of receipt of the
warning, citation, or other form of documentation with deficiencies:
i.
Any warning or citation issued by the Local Issuing Authority, the
Georgia Environmental Protection Division, the United States
Environmental Protection Agency, or a deficiency documented in
UGAA’s Testing Consultant’s report or that of the Design Professional,
which may be issued as an email, shall serve as the Notice of NonCompliant Work.
ii.
The three-days written notice referred to in ¶¶ III(M)(12)(d) and X(C)
shall be reduced to twenty-four hours or prior to any impending rain
events, whichever is sooner, after written notice.
d.
After completion of the required corrective actions, CM shall contact the ADR
and the entity that cited the deficiencies and request a re-inspection.
e.
Any fines, penalties, or negotiated settlements resulting from the noncompliance
with the Clean Water Act, the Georgia Water Quality Control Act, the Georgia
Soil Erosion and Sedimentation Act, Land Disturbance Activities Permit, NPDES
Permit, or any rules, regulations, local ordinances and permits promulgated or
issued thereunder on the part of CM or any Subcontractor shall be paid in full by
CM with no cost to UGAA. CM may not use CM Contingency Account or charge
the Cost of the Work to pay for any fines, penalties or negotiated settlements.
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16.
R.
Environmentally-related default, stop Work, and termination for cause.
a.
The issuance of a citation or other by other noncompliance notice, United States
Environmental Protection Agency, the Georgia Environmental Protection
Division, or a Local Issuing Authority related to the Clean Water Act, the
Georgia Water Quality Control Act, or the Georgia Soil Erosion and
Sedimentation Act, Land Disturbance Activities Permit, NPDES Permit, or any
rules, regulations, local ordinances or permits promulgated or issued thereunder,
is sufficient cause for UGAA to stop Work for the entire Project at the cost of CM
until the cited deficiencies are remediated to the satisfaction of UGAA. For this
situation, in addition to the remedies available to UGAA under Article X, the
following shall apply: “UGAA reserves the right, upon the issuance of a citation
or other noncompliance notice, United States Environmental Protection Agency,
the Georgia Environmental Protection Division, or a Local Issuing Authority, to
immediately stop the Work of the entire Project by oral direction, at UGAA’s or
ADR’s sole discretion, in conjunction with written notice provided to CM within
forty-eight hours thereafter. CM shall be solely responsible for all costs incurred
in connection with the stop Work order, including without limitation any
overtime or other expenses required to modify the Project Schedule and progress
of the Work in order to achieve the Contractual Date of Substantial Completion.
CM may not use CM Contingency Account to offset any costs related to the stop
Work order. CM will not be granted a time extension for Work time lost to a stop
Work order due to any such citation or other noncompliance notice.”
b.
Noncompliance with any applicable portion of the Clean Water Act, the Georgia
Water Quality Control Act, the Georgia Soil Erosion and Sedimentation Act, the
Land Disturbance Activities Permit, the NPDES Permit, or any rules, regulations,
local ordinances or permits promulgated or issued thereunder or any other Law,
- or to correct noncompliance within twenty-four hours of notice thereof – is
sufficient cause for UGAA to terminate this Agreement for cause as set forth in ¶
X(E) above – or to constitute a condition of CM Default as contemplated in ¶
X(A) above.
Georgia Environmental Policy Act: Whether or not an evaluation of the Project was required or
has been made under the Georgia Environmental Policy Act (“GEPA”), CM, in undertaking this
Work, becomes a steward of air, land, water, plants, animals, and environmental, historical, and
cultural resources. As such, CM shall perform all Work in accordance with local, state, and
federal rules, regulations, and other Law governing the protection of these resources.
__
ARTICLE XVI – NOTICES AND REPRESENTATIVES
A.
Notices. Formal notices, objections, and demands (“formal notice”) issued by CM shall be
delivered to the ADR by statutory Overnight Delivery and shall be signed by the person signing
below for the CM. Except where issuance of “formal notice” is expressly required of UGAA
herein, demands and notices issued by UGAA may be delivered to CM by e-mail, U.S. Mail,
Overnight Delivery, personal delivery, or any other means deemed reliable by UGAA. Formal
notices and demands issued by UGAA shall be delivered to the attention of the person signing
below at the address for CM stated in the information preceding Article I by statutory
Overnight Delivery and shall be signed by ADR or the person signing below for UGAA (or its
designated representative). Except for PCO’s (notice of which can be effective if their receipt is
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acknowledged by “reply” e-mail from the ADR containing a copy of the PCO acknowledged),
electronic delivery alone of required notices from CM that potentially affect the Scope of Work,
Project Schedule, GMP, or Contract Time is insufficient to satisfy this requirement. CM shall,
upon receipt, electronically transmit to ADR a scanned copy and concurrently send to the ADR
(by statutory Overnight Delivery and within 24 hours of its receipt), all original copies
(including delivery envelopes or packages) of any formal notices, claims, citations, or demands
of any kind that it receives from governmental authorities or other nonparties related to this
Agreement, the Work, the Project, or the Property in which risk to the interest, funds, Project, or
Property of UGAA, UGA, or the Board of Regents is possible – indicating in each case in writing
how the notice, demand, or claim was received, when, and from whom. Within fourteen days of
that receipt, CM shall supplement the information sent by delivering to the ADR CM’s own
initial written assessment of the notice, demand, or claim received and detailed facts of which
CM is aware concerning that notice, demand, or claim.
B.
Limited use of electronic signatures. Electronic signatures may not be used to execute Change
Orders, affidavits, certifications, Payment Applications, or other documents of material
significance – originals of each of which must bear original signatures. ITC’s, PCO’s, answers to
RFI’s, ASK’s, and informal requests and communications can be signed electronically, i.e., with
the author’s name, title, and organization expressly indicated in the transmission. ADR will
keep original versions of Change Orders; and may distribute copies thereof electronically. CM
shall have access to originally signed versions of Change Orders upon request.
C.
Authority of ADR and UGAA’s undersigned representative. ADR is authorized to administer
this Agreement on behalf of UGAA with respect to day-to-day Project-specific matters, as
described herein. Although ADR may execute UGAA-generated ITC’s and Change Orders with
a value not-to-exceed value of $10,000.00 (that do not extend the Contract Time), only the
authorized representative signing below for UGAA (or the Director of Athletics or another
person expressly appointed in writing by UGAA) shall have the authority to modify this
Agreement by signing larger Change Orders and those that extend the Contract Time. No other
person or entity is authorized to execute Change Orders or otherwise bind UGAA or act in
UGAA’s behalf in modifying the terms of this Agreement, the Scope of Work, the then-current
approved Project Schedule, GMP, or Contract Time. Things sent to or by the ADR shall be
deemed to be sent to or by UGAA.
D.
Authority of CM’s Representative. The person signing below for CM, the designated Project
Superintendent and Project Manager, and other persons as may be subsequently designated in
writing by CM are authorized to act on behalf of CM with respect to day-to-day matters relating
to this Agreement and Project. Change Orders modifying the GMP, Contract Time, the thencurrent approved Project Schedule, or Scope of Services must be signed in writing by the person
signing below on behalf of CM (or someone expressly appointed by CM in writing as its
authorized designee of CM).
E.
Authority to execute this Agreement. The persons signing below represent that they are
authorized to represent and bind their respective Party to this Agreement, and that their doing
so will not violate any obligation of corporate governance, delegation of authority, by-law, or
other applicable Law or regulation.
__
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SO AGREED by the Parties:
________________
CM’s legal name
_______________________________________
signature of authorized representative
_________________________, _____________
representative’s printed name
title
_______________________________________
CM’s federal tax identification number
University of Georgia Athletic Association, Inc.
__________________________________
signature of authorized representative
____________________________
date signed
____________________________
date signed
© 2014
This Agreement (exclusive of Articles XI, XII, XIII and XV) is protected by copyright and is
licensed for use solely by University of Georgia Athletic Association, Inc.
No further reproduction or modification or other use is authorized.
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_ UGAA-CM Agreement - Supplement A_
Contract Documents
The Contract Documents include the following:
Document
Dated
Other Contract Documents as follows:
Geotechnical Report
___________ ___, 201____
Hazardous Materials Report
___________ ___, 201____
___________ ___, 201____
END OF LIST
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_ UGAA-CM Agreement - Supplement B_
Component Change Order
Component Change Order No. _______
Project: _______________________
This Component Change Order to the Agreement between University of Georgia Athletic Association,
Inc. (“UGAA”) and ___________________ (insert Construction Manager’s legal name) (“CM”), having an
effective date of the ____ day of ______________, 201___ (“UGAA-CM Agreement”).
The UGAA-CM Agreement is hereby amended as follows:
The Scope of Work is modified to include: ___________________ (insert general description of
change) as further described in the Component Construction Documents listed in the attached
Supplement A, which is dated the __ day of __________, 201__, and initialed by the Parties.
The Project Schedule applicable upon execution of this Component Change Order is attached
hereto, and dated the ____ day of _________________, 201___, and initialed by the Parties.
The Contract Time is unchanged [__] reduced [__] extended [__] (select one) by ___ (insert)
calendar days, resulting in an adjusted Contractual Date of Substantial Completion on the _____ day of
_________, 201__.
The not-to-exceed price (Component Change Order Sum) for this Component Change Order is
$___________________, in accordance with ¶ III(L)(1)(d) of the UGAA-CM Agreement.
The Schedule of Values applicable upon execution of this Component Change Order by UGAA
is attached herein and incorporated hereto, is dated the __ day of ________, 201__, and initialed by the
Parties.
All costs, fees, profits, overhead, and any other compensation of any kind accruing hereunder to
CM for Component Change Order Work shall ultimately be included in the Cost of the Work, CM
Construction Fee, or CM Construction Overhead Costs, as the case may be – and shall not be deemed
part of either the CM Preconstruction Fee or CM Preconstruction Overhead Costs.
The foregoing amounts stated are inclusive, covering all CM’s labor, materials, supervision, and
administration costs, profit, overhead, Bond and insurance costs, fees, expenses, and time required to
provide the Component Scope of Work in accordance with Article VIII. Therefore, upon execution of
this Component Change Order, CM waives any and all claims related to the change set forth here and
all outstanding or pending claims with the exception of those individually listed as follows:
________none_____.
This Change Order effective on the date accompanying the signature below of UGAA’s
authorized representative.
[signature of following page]
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SO AGREED by the Parties.
________________
CM’s legal name
_______________________________________
signature of authorized representative
_________________________, _____________
representative’s printed name
title
____________________________
date signed
University of Georgia Athletic Association, Inc.
Reviewed: _____________ (Design Professional’s
legal name)
_______________________________________
signature of authorized representative
_________________________, _____________
representative’s printed name
title
____________________________
date signed
Witness: _______________________
(ADR signature)
_____________, 201____
__________________________________
signature of authorized representative
____________________________
date signed
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_ UGAA-CM Agreement - Supplement B1_
GMP Change Order
Project: _______________________
The GMP Change Order pertains to the Agreement between University of Georgia Athletic
Association, Inc. (“UGAA”) and ___________________ (insert Construction Manager’s legal name) (“CM”),
having an effective date of the ____ day of ______________, 201___ (“UGAA-CM Agreement”).
The UGAA-CM Agreement is hereby amended as follows:
The Scope of Work is modified to include the entire Project generally described in the
information preceding Article I of the UGAA-CM Agreement – as indicated in the Contract Documents
listed in the attached completed version of Supplement A, which is dated the _____ day of _________,
201__, and initialed by the Parties.
The Project Schedule applicable upon execution of the GMP Change Order is attached hereto,
and dated the ____ day of _________________, 201___, and initialed by the Parties.
The Contract Time is unchanged [__] reduced [__] extended [__] (select one) by ___ (insert)
calendar days by this GMP Change Order, resulting in an adjusted Contractual Date of Substantial
Completion on the _____ day of _________, 201__.
The Guaranteed Maximum Price (“GMP”) is established by this GMP Change Order to be
$____________. That GMP is based upon the following elements:
a. Estimated Cost of the Work: $________________ (as established in ¶¶ II(C)(2)(c) and
V(B)(2)(a)), which includes $______________ in funds for the CM Contingency Account (as
established in ¶¶ II(C)(2)(f) and V(B)(2)(a));
b. CM Construction Fee: $____________ (as defined in ¶ II(C)(2)(d)); and
c. Maximum CM Construction Overhead Costs: $____________ (as defined in ¶ II(C)(2)(e)).
The Schedule of Values applicable upon execution of this Change Order by UGAA is attached
herein and incorporated hereto, is dated the __ day of ________, 201__, and initialed by the Parties.
The GMP is exclusive of CM Preconstruction Fee and CM Preconstruction Overhead Costs.
Accrual of CM Preconstruction Fee and CM Preconstruction Overhead Costs shall cease upon
execution of this GMP Change Order by UGAA. The GMP includes amounts paid (or due and owing)
for Component Change Order Work duly and timely performed at the time of execution of this GMP
Change Order by UGAA.
The foregoing amounts stated are inclusive, covering all CM’s labor, materials, supervision, and
administration costs, profit, overhead, Bond and insurance costs, fees, expenses, and time required to
provide the changed Scope of Work in accordance with Article VIII. Therefore, upon execution of this
Change Order, CM waives any and all claims related to the change set forth here and all outstanding or
pending claims with the exception of those individually listed as follows: __none_______.
This Change Order effective on the date accompanying the signature below of UGAA’s
authorized representative.
[signatures on following page]
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SO AGREED by the Parties:
________________
Construction Manager’s legal name
_______________________________________ signature
of authorized representative
_________________________, _____________
representative’s printed name
title
____________________________
date signed
University of Georgia Athletic Association, Inc.
Reviewed: _____________ (Design Professional’s
Witness: __________________ (ADR)
dated ___________, 201___
legal name)
_______________________________________
signature of authorized representative
_________________________, _____________
representative’s printed name
title
____________________________
date signed
__________________________________
signature of authorized representative
____________________________
date signed
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_ UGAA-CM Agreement - Supplement B2_
Change Order
Change Order No. _______
Project: _______________________
This Change Order pertains to the Agreement between University of Georgia Athletic Association, Inc.
(“UGAA”) and ___________________ (insert Construction Manager’s legal name) (“CM”), having an
effective date of the ____ day of ______________, 201___ (“UGAA-CM Agreement”).
The UGAA-CM Agreement is hereby amended as follows:
The Scope of Work is modified to generally include: ________________ (insert description of
change) as further indicated in _________________________ (insert list of documents indicating the change
in Scope of Work) attached hereto, dated the __ day of _______, 201__, and initialed by the Parties.
The Project Schedule applicable upon execution of this Change Order is attached hereto, and
dated the ____ day of _________________, 201___, and initialed by the Parties.
The Contract Time is unchanged [__] reduced [__] extended [__] (select one) by ___ (insert)
calendar days by this Change Order, resulting in an adjusted Contractual Date of Substantial
Completion on the _____ day of _________, 201__.
The Guaranteed Maximum Price (“GMP”) is unchanged [__] increased [__] decreased [__] (select
one) by this Change Order in the amount of $____________, resulting in an adjusted GMP of
$_________________.
The Schedule of Values applicable upon execution of this Change Order by UGAA is attached
herein and incorporated hereto, is dated the __ day of ________, 201__, and initialed by the Parties.
The foregoing amounts are inclusive, covering all CM’s labor, materials, supervision, and
administration costs, profit, overhead, Bond and insurance costs, fees, expenses, and time required to
provide the changed Scope of Work in accordance with Article VIII. Therefore, upon execution of this
Change Order, CM waives any and all claims related to the change set forth here and all outstanding or
pending claims with the exception of those individually listed as follows: ______none_______.
This Change Order effective on the date accompanying the signature below of UGAA’s
authorized representative.
SO AGREED by the Parties:
________________
Construction Manager’s legal name
_______________________________________ signature
of authorized representative
_________________________, _____________
representative’s printed name
title
____________________________
date signed
University of Georgia Athletic Association, Inc.
Reviewed: _____________ (Design Professional’s
Witness: __________________ (ADR)
dated ___________, 201___
legal name)
_______________________________________
signature of authorized representative
_________________________, _____________
representative’s printed name
title
__________________________________
signature of authorized representative
____________________________
date signed
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____________________________
date signed
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_ UGAA-CM Agreement - Supplement B3_
Conversion Change Order
Conversion Change Order
Project: _______________________
This Conversion Change Order pertains to the Agreement between University of Georgia Athletic
Association, Inc. (“UGAA”) and ___________________ (insert Construction Manager’s legal name) (“CM”),
having an effective date of the ____ day of ______________, 201___ (“UGAA-CM Agreement”).
The UGAA-CM Agreement is hereby amended as follows:
The UGAA-CM Agreement is hereby converted to a fixed Contract Price in accordance with ¶
V(N) of that Agreement.
The initial fixed Contract Price is $ ________________ (insert), which equates to the current GMP
immediately preceding this conversion – minus amounts in the CM Contingency Account that remain
unallocated and minus CM Construction Overhead Costs (unexpended to-date and based on pro rata
allocation determined by completion of the Work at the time of conversion), and as otherwise set forth
in ¶ V(N) of the UGAA-CM Agreement.
All amounts paid by UGAA (exclusive of CM Preconstruction Fees and CM Preconstruction
Overhead Costs) shall be fully credited to UGAA as payment under the Contract Price.
Attached hereto, and incorporated herein as Exhibit A, is the resultant Schedule of Values
containing constituent line-items for various components of the Costs of the Work, as well as the
adjusted CM Construction Fee, and adjusted CM Construction Overhead Costs, which are now
included as components of the Contract Price.
Henceforth, payments under the Contract Price format are strictly limited to the pro rata
completion of the Work on a line-item basis. Amounts paid for line-items containing converted CM
Construction Overhead and CM Construction Fee shall also be limited to pro rata completion of the
overall Work.
The Project Schedule applicable upon execution of this Change Order is attached hereto as
Exhibit B, and dated the ____ day of _________________, 201___, and initialed by the Parties.
Changes hereafter will be addressed consistent with the provisions for change with respect to
the GMP as set forth in Article VIII of the UGAA-CM Agreement, and will be set forth in PostConversion Change Orders.
The Contract Time is unchanged [__] reduced [__] extended [__] (select one) by ___ (insert)
calendar days by this Change Order, resulting in an adjusted Contractual Date of Substantial
Completion on the _____ day of _________, 201__.
This Conversion Change Order is effective on the date accompanying the signature below of
UGAA’s authorized representative.
[signatures on following page]
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SO AGREED by the Parties:
________________
Construction Manager’s legal name
_______________________________________ signature
of authorized representative
_________________________, _____________
representative’s printed name
title
____________________________
date signed
University of Georgia Athletic Association, Inc.
Reviewed: _____________ (Design Professional’s
legal name)
_______________________________________
signature of authorized representative
_________________________, _____________
representative’s printed name
title
____________________________
date signed
Witness: __________________ (ADR)
dated ___________, 201___
__________________________________
signature of authorized representative
____________________________
date signed
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_ UGAA-CM Agreement - Supplement B4_
Post-Conversion Change Order
Post-Conversion Change Order No. _______
Project: _______________________
This Post-Conversion Change Order pertains to the Agreement between University of Georgia Athletic
Association, Inc. (“UGAA”) and ___________________ (insert Construction Manager’s legal name) (“CM”),
having an effective date of the ____ day of ______________, 201___ (“UGAA-CM Agreement”).
The UGAA-CM Agreement is hereby amended as follows:
The Scope of Work is modified to generally include: ________________ (insert description of
change) as further indicated in _________________________ (insert list of documents indicating the change
in Scope of Work) attached hereto, dated the __ day of _______, 201__, and initialed by the Parties.
The Project Schedule applicable upon execution of this Change Order is attached hereto, and
dated the ____ day of _________________, 201___, and initialed by the Parties.
The Contract Time is unchanged [__] reduced [__] extended [__] (select one) by ___ (insert)
calendar days by this Change Order, resulting in an adjusted Contractual Date of Substantial
Completion on the _____ day of _________, 201__.
The Contract Price is unchanged [__] increased [__] decreased [__] (select one) by this Change
Order in the amount of $____________, resulting in an adjusted Contract Price of $_________________.
The Schedule of Values applicable upon execution of this Change Order by UGAA is attached
herein and incorporated hereto, and is dated the __ day of ________, 201__, and initialed by the Parties.
The foregoing amounts are inclusive, covering all CM’s labor, materials, supervision, and
administration costs, profit, overhead, Bond and insurance costs, fees, expenses, and time required to
provide the changed Scope of Work in accordance with Article VIII. Therefore, upon execution of this
Change Order, CM waives any and all claims related to the change set forth here and all outstanding or
pending claims with the exception of those individually listed and detailed as follows:
_______________________.
This Change Order effective on the date accompanying the signature below of UGAA’s
authorized representative.
SO AGREED by the Parties:
________________
Construction Manager’s legal name
_______________________________________ signature
of authorized representative
_________________________, _____________
representative’s printed name
title
____________________________
date signed
University of Georgia Athletic Association, Inc.
Reviewed: _____________ (Design Professional’s
legal name)
_______________________________________
signature of authorized representative
_________________________, _____________
representative’s printed name
title
Witness: __________________ (ADR)
dated ___________, 201___
__________________________________
signature of authorized representative
____________________________
date signed
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____________________________
date signed
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_ UGAA-CM Agreement - Supplement C_
Unit Prices
The following Unit Prices are to be applied in accordance with the UGAA-CM Agreement:
SAMPLE SAMPLE SAMPLE SAMPLE
Unit Price G-1
Rippable Rock
$xx.00 per cubic yard
Unit Price G-2
Mass Rock
$xx.00 per cubic yard
Unit Price G-3
Trench Rock
$xx.00 per cubic yard
Unit Price G-4
Caisson Rock
$xx.00 per cubic yard
Unit Price G-5
Additional soil imported and compacted
$xx.00 per cubic yard
Unit Price G-6
Additional soil excavation (exported)
$xx.00 per cubic yard
Unit Price G-7
Curb and gutter
$xx.00 per lineal foot
Unit Price G-8
Stormwater management measures
type and lineal foot
Duplex electrical receptacle
$xx.00 per receptacle
END OF LIST OF UNIT PRICES
Definitions of Rock
For purposes of pricing rock removal, rock is classified and defined as follows:
A.
Rippable Rock. Rippable Rock is defined as any material that can be ripped with a single-tooth
hydraulic ripper drawn by a crawler tractor having a minimum draw bar pull rated at not less
than 56,000 pounds (Caterpillar D-8K or equivalent) and occupies an original volume of at least
one cubic yard.
B.
Mass Rock. Mass Rock is defined as any material that cannot be ripped with a single-tooth
hydraulic ripper drawn by a crawler tractor having a minimum draw bar pull rated at not less
than 56,000 pounds (Caterpillar D-8K or equivalent) and occupies an original volume of at least
one cubic yard. For purposes of this Supplement C, Mass Rock does not include material that
falls within the definitions below for Trench Rock or Caisson Rock.
C.
Trench Rock. Trench Rock is defined as any material that must be removed from a trench that
cannot be excavated with a hydraulic excavator having a bucket curling force rated at not less
than 18,300 pounds (Caterpillar Model 215 or equivalent) and occupies an original volume of at
least one-half cubic yard.
D.
Caisson Rock. Caisson Rock is defined as material that must be removed from a shaft which
cannot be penetrated faster than two feet per hour (fifteen minute minimum) using a rock auger
with bullet-shaped hardened steel teeth (Kennametal bits or equivalent), and the drilling
equipment should have the capacity to produce a continuous torque of at least 1,000,000 inch
pounds and downward force of at least 50,000 pounds (a Hughes LLDH in good working
condition) for piers up to seventy two inches in diameter. Use of equipment with greater torque
or downward forced modifies the definition of refusal to be the point at which the equipment
cannot penetrate faster than two feet per hour (fifteen minute minimum). In rare cases, refusal
may occur on a rock seam or boulder above the general massive rock surface. The compensation
for Caisson Rock should include only material that cannot be penetrated by the rock auger at
the specified rate.
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Pricing for Compensable Rock. All compensable rock shall be priced by the Unit Prices stated above in
this Supplement C upon volume prior to removal and shall be calculated by survey and engineering
calculations. No rock shall be priced by truckload, bucket load, or other similar pricing methods. Unit
Prices shall be inclusive of: (a) excavation and removal of all rubble; (b) addition and removal of
overburden for blasting; (c) excavation of all blast rubble; (d) replacement of suitable soils in areas of
overblasting or over removal; (e) all costs of labor, equipment, supplies, blasting materials, safety
requirements, drayage, haulage, and disposal, including off-site disposal costs; and (f) all profit and
overhead. Therefore, no additional markup by CM on Cost of the Work (based upon Unit Price) is
permitted. No other damages, compensation, or remedies will be awarded pertaining to rock removal;
and the limitations and waivers set forth in ¶ VIII(F) of the Agreement apply.
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_ UGAA-CM Agreement - Supplement D_
CONSTRUCTION MANAGER INTERIM WAIVER AND RELEASE UPON PAYMENT
STATE OF GEORGIA
COUNTY OF _____________
THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN (“CONSTRUCTION
MANAGER” OR “CM”) HAS BEEN EMPLOYED BY THE UNIVERSITY OF GEORGIA
ATHLETIC ASSOCIATION, INC. (“UGAA”) TO FURNISH LABOR, MATERIAL, AND
SERVICES FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS
_________________ (insert title of the Project or building) WHICH IS LOCATED IN OR NEAR
THE CITY OF ____________, COUNTY OF _____________________, ON REAL PROPERTY
OWNED BY THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
AND LEASED TO UGAA, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
____________________________
(DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY
USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT,
BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT) (“THE
PROPERTY”).
UPON THE RECEIPT OF THE SUM OF $__________ (insert amount applied for), CM WAIVES
AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE
FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR
AND/OR MATERIAL BOND THROUGH THE ______ DAY OF _________, 201__ AND
EXCEPTING THOSE RIGHTS AND LIENS THAT THE CM MIGHT HAVE IN ANY
RETAINED AMOUNTS, ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH,
FURNISHED BY THE UNDERSIGNED TO OR ON ACCOUNT OF UGAA FOR SAID
BUILDING OR PREMISES.
GIVEN UNDER HAND AND SEAL THIS ______ DAY OF ___________, 201___.
Witness:
NOTARY
Sworn and subscribed before me by ___________ on this ____ day of
____, 201__, who is:
personally known to me [__], or who
produced ______________ (identify document)
as identification.
______________________
NOTARY PUBLIC
(SEAL)
Construction Manager: __________________________ (insert)
By: ____________________________________
Signature of CM’s authorized representative
___________________________ __________
Representative’s printed name and
title
____________________ (SEAL)
CM’s Legal Name
____________________________________
Address
___________________ _______ __________
City
State
Zip
My commission expires on _____________ (date).
NOTICE: WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT, YOU SHALL BE
CONCLUSIVELY DEEMED TO HAVE BEEN PAID IN FULL THE AMOUNT STATED
ABOVE, EVEN IF YOU HAVE NOT ACTUALLY RECEIVED SUCH PAYMENT, 60 DAYS
AFTER THE DATE STATED ABOVE UNLESS YOU FILE EITHER AN AFFIDAVIT OF
NONPAYMENT OR A CLAIM OF LIEN PRIOR TO THE EXPIRATION OF SUCH 60 DAY
PERIOD. THE FAILURE TO INCLUDE THIS NOTICE LANGUAGE ON THE FACE OF
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THE FORM SHALL RENDER THE FORM UNENFORCEABLE AND INVALID AS A
WAIVER AND RELEASE UNDER O.C.G.A. SECTION 44-14-366.
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_ UGAA-CM Agreement - Supplement E_
CONSTRUCTION MANAGER INTERIM AFFIDAVIT
STATE OF GEORGIA
COUNTY OF __________
I, the undersigned, ___________ (insert name), being first duly sworn, depose and state as
follows:
A.
I am over twenty-one years of age, and I am competent to make this Affidavit;
B.
I am employed in the position of ______________ (insert title) by ____________, (insert legal
name of Construction Manager) (“CM”) which has been employed pursuant to a contract with
an effective date of the ___ day of ___________, 201___ (the “UGAA-CM Agreement”) by the
University of Georgia Athletic Association, Inc. (“UGAA”) to provide labor, materials, and
services pertaining to _________________ (the “Project”) located on or near
___________(insert street address, city), in the county of ________________, Georgia on real
property (“the Property”), which is owned by the Board of Regents of the University
System of Georgia and leased to UGAA;
I make this Affidavit on the basis of my own personal knowledge and upon proper
investigation;
I make this Affidavit understanding that my statements and representations in it, and in the
Interim Payment Application to which this Affidavit is attached, will be relied upon by
UGAA in making payments to CM with respect to the Project;
C.
D.
E.
F.
G.
H.
I.
1
The Work for which CM seeks payment from UGAA complies with the Contract Documents
and with CM’s obligations under the UGAA-CM Agreement, subject only to confirmatory
testing and minor corrections;
The Work provided is free of claims of liens, unsatisfied demands for payment related to the
Project, demands on bonds of any kind, and all other demands and encumbrances of any
type;
CM has fully, timely, and lawfully allocated, disbursed, and distributed all funds previously
paid to it by UGAA to each Subcontractor and vendor of any tier, each of which has been
fully paid in accordance with the UGAA-CM Agreement and the respective Subcontracts –
except that I attach to this Affidavit a list of unpaid Subcontractors (if any), supplying with
respect to each the amount unpaid and the reason for not paying;1
No outstanding demands or claims have been made related to the Work or the Project,
except for those requests for payment for Work for which payment is applied for in the
Payment Application to which this Affidavit is attached;
No lien or claim of lien exists, is known to have been filed, or can be filed with validity
(against the Property, UGAA, the University of Georgia, the Board of Regents of the
University System of Georgia, or the Project) by CM or by any Subcontractor or vendor of
any tier for whose Work UGAA has previously paid CM – and no statutory Affidavits of
Nonpayment are known to have been filed by Subcontractors or vendors of any tier on the
Project – that have also not been cancelled and discharged as a matter of record with the
Absence of such a list shall be deemed a sworn representation by Affiant that all Subcontractors
have been fully and timely paid.
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J.
K.
L.
M.
N.
O.
P.
clerk of the Superior Court in the county in which a lien was filed and/or the Property is
located;
No claim or demand exists, has been asserted, or can be asserted with validity against the
Payment Bond provided by CM on the Project;
Within ten days of CM’s receipt of the payment applied for, CM will pay Subcontractors all
amounts due in full, withholding from payment only that retainage that continues to be
withheld from CM by UGAA;
No amounts applied for by CM in the Interim Payment Application to which this Affidavit is
attached will be withheld from the Subcontractors for whose Work CM now applies for
payment;
No statement contained in the Interim Payment Application to which this Affidavit is
attached shall be construed to modify the certifications or to limit, nullify, or abrogate
waivers and releases previously given by CM or its Subcontractors;
The licensing information, insurance coverage, and tax identification numbers that have
been most-recently supplied to UGAA are accurate and correct; and
CM hereby releases UGAA, the University of Georgia, the Board of Regents of the
University System of Georgia, and their respective employees, directors, officers,
shareholders, members, agents, insurers, and representatives from all claims of lien,
demands, claims against bonds of any kind, and claims of any kind through the date of this
Affidavit – except as individually and specifically listed and detailed as follows: none.
I am authorized by CM to make this Affidavit, and CM has approved the statements
made herein.
FURTHER AFFIANT SAYETH NOT.
Construction Manager: _____________ (insert name)
____________________________________
Signature of CM’s authorized representative and Affiant
here
___________________________ __________
Representative’s printed name
title
____________________ (Seal)
CM’s Legal Name
____________________________________
Address
___________________ _______ __________
City
State
Zip
Witness:
NOTARY
Sworn and subscribed before me by ___________ on this
____ day of ____, 201__, who is:
personally known to me [__], or who
produced ______________ (identify document)
as identification.
______________________
NOTARY PUBLIC
(SEAL)
My commission expires on _____________ (date).
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_ UGAA-CM Agreement - Supplement F_
SUBCONTRACTOR INTERIM WAIVER AND RELEASE UPON PAYMENT
STATE OF GEORGIA
COUNTY OF _____________
THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN (“SUBCONTRACTOR”)
HAS BEEN EMPLOYED BY _______________ (“CONSTRUCTION MANAGER” OR “CM”)
TO FURNISH _________ (insert scope of Subcontract Work) FOR THE CONSTRUCTION OF
IMPROVEMENTS KNOWN AS _____________________ (insert title of the Project or building)
WHICH IS LOCATED IN OR NEAR THE CITY OF _______________ COUNTY OF
_____________________ ON REAL PROPERTY OWNED BY THE BOARD OF REGENTS OF
THE UNIVERSITY SYSTEM OF GEORGIA AND LEASED TO UNIVERSITY OF
GEORGIA ATHLETIC ASSOCIATION, INC., AND MORE PARTICULARLY DESCRIBED
AS FOLLOWS: ____________________________
(DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY
USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT,
BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT) (“THE
PROPERTY”).
UPON THE RECEIPT OF THE SUM OF $_____________ (insert amount applied for),
SUBCONTRACTOR WAIVES AND RELEASES ANY AND ALL LIENS OR CLAIMS OF
LIENS IT HAS UPON THE FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS
AGAINST ANY LABOR AND/OR MATERIAL BOND THROUGH THE ______ DAY OF
_________, 201__ AND EXCEPTING THOSE RIGHTS AND LIENS THAT THE
SUBCONTRACTOR MIGHT HAVE IN ANY RETAINED AMOUNTS, ON ACCOUNT OF
LABOR OR MATERIALS, OR BOTH, FURNISHED BY THE UNDERSIGNED TO OR ON
ACCOUNT OF SAID CM FOR SAID BUILDING OR PREMISES.
GIVEN UNDER HAND AND SEAL THIS ______ DAY OF ___________, 201___.
Witness:
NOTARY
Sworn and subscribed before me by ___________ on this ____ day of
____, 201__, who is:
personally known to me [__], or who
produced ______________ (identify document)
as identification.
______________________
NOTARY PUBLIC
(SEAL)
SUBCONTRACTOR: ____________________________ (insert)
By: ____________________________________
Signature of Subcontractor’s authorized representative
___________________________ __________
Representative’s printed name and
title
____________________ (SEAL)
Subcontractor’s Legal Name
____________________________________
Address
___________________ _______ __________
City
State
Zip
My commission expires on _____________ (date).
NOTICE: WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT, YOU SHALL BE
CONCLUSIVELY DEEMED TO HAVE BEEN PAID IN FULL THE AMOUNT STATED
ABOVE, EVEN IF YOU HAVE NOT ACTUALLY RECEIVED SUCH PAYMENT, 60 DAYS
AFTER THE DATE STATED ABOVE UNLESS YOU FILE EITHER AN AFFIDAVIT OF
NONPAYMENT OR A CLAIM OF LIEN PRIOR TO THE EXPIRATION OF SUCH 60 DAY
PERIOD. THE FAILURE TO INCLUDE THIS NOTICE LANGUAGE ON THE FACE OF
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THE FORM SHALL RENDER THE FORM UNENFORCEABLE AND INVALID AS A
WAIVER AND RELEASE UNDER O.C.G.A. SECTION 44-14-366.
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UGAA-CM Agreement - Supplement G_
CONSTRUCTION MANAGER WAIVER AND RELEASE UPON FINAL PAYMENT
STATE OF GEORGIA
COUNTY OF _____________
THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN (“CONSTRUCTION
MANAGER” OR “CM”) HAS BEEN EMPLOYED BY THE UNIVERSITY OF GEORGIA
ATHLETIC ASSOCIATION, INC. (“UGAA”) TO FURNISH LABOR, MATERIALS, AND
SERVICES FOR CONSTRUCTION OF IMPROVEMENTS KNOWN AS _____________
(insert title of the Project or building) WHICH IS LOCATED IN OR NEAR THE CITY OF
_______________ COUNTY OF __________________, ON REAL PROPERTY OWNED BY
THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA AND LEASED
TO UGAA, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: ______
(DESCRIBE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING
EITHER A METES & BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK
AND LOT NUMBER, OR STREET ADDRESS OF PROJECT) (“THE PROPERTY”).
UPON THE RECEIPT OF THE SUM OF $_____________, CM WAIVES AND RELEASES
ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE FOREGOING
DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR AND/OR
MATERIAL BOND ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH,
FURNISHED BY THE UNDERSIGNED TO OR ON ACCOUNT OF SAID CM FOR SAID
PROPERTY.
GIVEN UNDER HAND AND SEAL THIS ______ DAY OF ____________, 201__.
Construction Manager: ______ (insert CM’s legal name)
(SEAL)
____________________________________
Signature of CM’s authorized representative
___________________________ __________
Representative’s printed name and
title
____________ (CM’s address)
____________ (CM’s city, state, zip code )
Witness:
NOTARY
Sworn and subscribed before me by ___________ on this ____
day of ____, 201__, who is:
personally known to me [__], or who
produced ______________ (identify document)
as identification.
______________________
NOTARY PUBLIC
(SEAL)
My commission expires on _____________ (date).
NOTICE: WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT, YOU SHALL BE
CONCLUSIVELY DEEMED TO HAVE BEEN PAID IN FULL THE AMOUNT STATED
ABOVE, EVEN IF YOU HAVE NOT ACTUALLY RECEIVED SUCH PAYMENT, 60 DAYS
AFTER THE DATE STATED ABOVE UNLESS YOU FILE EITHER AN AFFIDAVIT OF
NONPAYMENT OR A CLAIM OF LIEN PRIOR TO THE EXPIRATION OF SUCH 60 DAY
PERIOD. THE FAILURE TO INCLUDE THIS NOTICE LANGUAGE ON THE FACE OF
THE FORM SHALL RENDER THE FORM UNENFORCEABLE AND INVALID AS A
WAIVER AND RELEASE UNDER O.C.G.A. § 44-14-366.
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_ UGAA-CM Agreement - Supplement H_
Construction Manager Final Affidavit
STATE OF GEORGIA
COUNTY OF __________
I, the undersigned, ___________ (insert name), being first duly sworn, depose and state
as follows:
A.
B.
I am over twenty-one years of age, and I am competent to make this Affidavit;
I am employed in the position of ______________ (insert title) by ____________, (insert
legal name of Construction Manager) (“CM”) which has been employed pursuant to a
contract with an effective date of the ___ day of ___________, 201___ (the “UGAA-CM
Agreement”) by the University of Georgia Athletic Association, Inc. (“UGAA” ) to
C.
D.
E.
F.
G.
H.
I.
provide labor, materials, and services pertaining to _________________ (the “Project”)
located on or near ___________(insert street address), in the county of _________________,
Georgia, on real property (“the Property”), which is owned by the Board of Regents of
the University System of Georgia and leased to UGAA;
I make this Affidavit on the basis of my own personal knowledge and upon proper
investigation;
I make this Affidavit understanding that my statements and representations in it, and in
the Final Payment Application to which this Affidavit is attached, will be relied upon by
UGAA in making payments to CM with respect to the Project;
The Work for which CM seeks payment from UGAA is complete; complies with the
Contract Documents; and satisfies with the CM’s obligations under the UGAA-CM
Agreement;
The Work provided is free of claims of liens, unsatisfied demands for payment related
to the Project, demands on bonds of any kind, and all other demands and
encumbrances of any type;
CM has fully, timely, and lawfully allocated, disbursed, and distributed funds paid to it
by UGAA to each Subcontractor and vendor of any tier, each of which has been fully
paid (or will, within five days of CM’s receipt, be fully paid out of the funds released by
the final payment of CM by UGAA);
No outstanding demands or claims have been made related to the Work or the Project,
except for those requests for payment for Work for which payment is applied for in the
Final Payment Application to which this Affidavit is attached;
No lien or claim of lien exists, has been filed, or can be filed with validity (against the
Property, UGAA, the University of Georgia, the Board of Regents of the University
System of Georgia, or the Project) by any Subcontractor or vendor of any tier for whose
Work UGAA has previously paid CM – and no statutory Affidavits of Nonpayment have
been filed by Subcontractors or vendors of any tier on the Project – that have also not been
cancelled and discharged as a matter of record with the clerk of the Superior Court in the
county in which the lien was filed and/or the Property is located;
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No claim or demand exists, has been asserted, or can be asserted with validity against
the Performance and Payment Bonds provided by CM on the Project;
K.
Within five days of CM’s receipt of the payment applied for, CM will pay
Subcontractors all amounts due in full;
L.
No amounts applied for by CM in the Final Payment Application to which this
Affidavit is attached will be withheld from the Subcontractors for whose Work CM has
applied or now applies for payment;
M.
All costs, charges, invoices, and claims and demands of any kind made upon UGAA by
CM on the Project are, and have been, accurate and truthful;
N.
No statement contained in the Final Payment Application to which this Affidavit is
attached shall be construed to modify the certifications or to limit, nullify, or abrogate
waivers and releases previously given by CM or its Subcontractors; and
O.
CM hereby releases UGAA, the University of Georgia, the Board of Regents of the
University System of Georgia, and their respective employees, directors, officers,
shareholders, members, agents, insurers, and representatives from all claims of lien,
demands, claims against bonds of any kind, and claims of any kind.
P.
I am authorized by CM to make this Affidavit, and CM has approved the statements
made herein.
FURTHER AFFIANT SAYETH NOT.
J.
Construction Manager: ______________ (insert)
____________________________________
Signature of CM’s authorized representative and
Affiant here
___________________________ __________
Representative’s printed name
title
____________________ (Seal)
CM’s Legal Name
____________________________________
Address
___________________ _______ __________
City
State
Zip
Witness:
NOTARY
Sworn and subscribed before me by ___________ on
this ____ day of ____, 201__, who is:
personally known to me [__], or who
produced ______________ (identify document)
as identification.
______________________
NOTARY PUBLIC
(SEAL)
My commission expires on _____________ (date).
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_ UGAA-CM Agreement - Supplement I_
SUBCONTRACTOR WAIVER AND RELEASE UPON FINAL PAYMENT
STATE OF GEORGIA
COUNTY OF _____________
THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN (“SUBCONTRACTOR”)
HAS BEEN EMPLOYED BY ___________ (“CONSTRUCTION MANAGER” OR “CM”) TO
FURNISH __________ (describe materials and/or labor provided) FOR THE CONSTRUCTION
OF IMPROVEMENTS KNOWN AS _______________ (insert name of Project or building),
WHICH IS LOCATED IN OR NEAR THE CITY OF _______________, COUNTY OF
_____________________, ON REAL PROPERTY THAT IS OWNED BY THE BOARD OF
REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA AND LEASED TO
UNIVERSITY OF GEORGIA ATHLETIC ASSOCIATION, INC., AND MORE
PARTICULARLY DESCRIBED AS FOLLOWS: ____________.
(DESCRIBE THE PROPERTY UPON WHICH IMPROVEMENTS WERE MADE BY USING
EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK
AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT) (“THE PROPERTY”).
UPON THE RECEIPT OF THE SUM OF $_____________, SUBCONTRACTOR WAIVES
AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE
FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR
AND/OR MATERIAL BOND ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH,
FURNISHED BY THE UNDERSIGNED TO OR ON ACCOUNT OF SAID CM FOR SAID
PROPERTY.
GIVEN UNDER HAND AND SEAL THIS ______ DAY OF ____________, 201__.
Subcontractor: ______ (insert Subcontractor’s
legal name) (SEAL)
____________________________________
Signature of Subcontractor’s authorized
representative
___________________________ __________
Representative’s printed name and
title
____________ (Subcontractor’s address)
____________ (Subcontractor’s city, state, zip
code )
Witness:
NOTARY
Sworn and subscribed before me by ___________
on this ____ day of ____, 201__, who is:
personally known to me [__], or who
produced ______________ (identify document)
as identification.
______________________
NOTARY PUBLIC
(SEAL)
My commission expires on _____________ (date).
NOTICE: WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT, YOU SHALL BE
CONCLUSIVELY DEEMED TO HAVE BEEN PAID IN FULL THE AMOUNT STATED
ABOVE, EVEN IF YOU HAVE NOT ACTUALLY RECEIVED SUCH PAYMENT, 60 DAYS
AFTER THE DATE STATED ABOVE UNLESS YOU FILE EITHER AN AFFIDAVIT OF
NONPAYMENT OR A CLAIM OF LIEN PRIOR TO THE EXPIRATION OF SUCH 60 DAY
PERIOD. THE FAILURE TO INCLUDE THIS NOTICE LANGUAGE ON THE FACE OF
THE FORM SHALL RENDER THE FORM UNENFORCEABLE AND INVALID AS A
WAIVER AND RELEASE UNDER O.C.G.A. § 44-14-366.
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_ UGAA-CM Agreement - Supplement J_
PERFORMANCE BOND
Bond No. ______________________
Project No. or Name and Location ____________________
KNOW ALL MEN BY THESE PRESENTS:
That ___________________________________________________________ (insert legal name and address of
the Construction Manager) as principal (hereinafter referred to as "CM"), and ______________________ (insert
legal name and address of the Surety) as surety (hereinafter referred to as "Surety"), are held and firmly bound
unto the University of Georgia Athletic Association, Inc. (hereinafter referred to as "UGAA") as Obligee and
the University of Georgia (hereinafter referred to as “UGA”) and the Board of Regents of the University
System of Georgia (hereinafter referred to as “BOR”) as Additional Obligees in the amount of
_______________DOLLARS ($_________) (insert Stated Cost Limitation set forth preceding Article I of the
UGAA-CM Agreement, to be replaced by the GMP when a GMP Change Order is executed by UGAA, to be
replaced by the fixed Contract Price in the event that UGAA elects to invoke the conversion provided for in ¶ V(N)
of the UGAA-Construction Manager Agreement), to which payment CM and Surety bind themselves, their heirs,
executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
WHEREAS, the above bounden Principal has entered into a contract with UGAA with an Effective Date of
the ___ day of _________, 201___ for:___________________________ (insert name of Work) in
accordance with the drawings and specifications prepared by: ________________________________
(insert name, firm, title, and address) which said contract is incorporated herein by reference and made a
part hereof, and is hereinafter referred to as “the Contract” or “the UGAA-Construction Manager
Agreement.”
NOW THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if the CM shall promptly and
faithfully perform and comply with the terms and conditions of said Contract; and shall indemnify and save
harmless UGAA, UGA, and BOR against and from all cost, expenses, damages, injury, or loss to which said
UGAA, UGA, and BOR may be subjected by reason of any wrongdoing, including patent infringement,
misconduct, want of care or skill, default or failure of performance on the part of said Principal, his agents,
subcontractors, or employees, in the execution or performance of said Contract, then this obligation shall be
null and void; otherwise it shall remain in full force and effect.
(1)
The said Surety to this bond, for value received, hereby stipulates and agrees that no
change or changes, extension of time or extensions of time, alteration or alterations, or
addition or additions to the terms of the Contract, or to the Work to be performed thereunder,
or the specifications or drawings accompanying same, or the exercise of UGAA’s right to do
Work pursuant to the UGAA-Construction Manager Agreement shall in any way affect its
obligation on this bond, and it does hereby waive notice of any such change or changes,
extension of time or extensions of time, alteration or alterations, or addition or additions to
the terms of the Contract or to the Work or to the specifications or drawings. In addition, the
Surety to this bond, for value received, hereby agrees to the provisions of ¶ XIII(C) of the
UGAA-Construction Manager Agreement requiring increases in the penal amount of this
bond, and waives notice from the UGAA, UGA, or BOR of any such changes.
(2)
If pursuant to the Contract Documents the CM shall be declared in default by UGAA under
the aforesaid UGAA-Construction Manager Agreement and UGAA has terminated the
CM’s right to complete the UGAA-Construction Manager Agreement, the Surety shall
promptly perform this bond agreement in accordance with its terms and conditions. If Surety
chooses to investigate, UGAA shall cooperate with the Surety in its investigation and shall
make all public project records available for inspection by Surety at no cost to UGAA. It shall
be the duty of the Surety to give an unequivocal notice in writing to UGAA, UGA, and to
BOR within twenty-five (25) days after receipt of such a declaration of default, of the Surety's
election to either remedy the default or defaults promptly or to perform the UGAA-136-
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Construction Manager Agreement promptly, time being of the essence. In said notice of
election, the Surety shall indicate the date on which the remedy or performance will
commence, and it shall then be the duty of the Surety to give prompt notice in writing to
UGAA, UGA, and BOR immediately upon completion of (a) the remedy and/or correction of
each default, (b) the remedy and/or correction or each item of condemned Work, (c) the
furnishing of each omitted item of Work, and (d) the performance of the UGAAConstruction Manager Agreement. The Surety shall not assert its Principal as justification
for its failure to give notice of election or for its failure to promptly remedy the default or
defaults or perform the UGAA-Construction Manager Agreement.
(3)
It is expressly agreed by the Principal and the Surety that UGAA, UGA, or BOR, if it (they)
desire(s) to do so, is (are) at liberty to make inquiries at any time of subcontractors, laborers,
materialmen, or other parties concerning the status of payments for labor, materials, or
services furnished in the prosecution of the Work.
(4)
No right of action shall accrue on this bond to or for the use of any person or corporation
other than UGAA, UGA, and BOR, or the legal successors of either.
(5)
For the purposes of this bond, the name and address of the responsible official of the
Surety’s claims department to whom correspondence and telecommunications may be
addressed and/or with whom business concerning this bond may be conducted will be as
follows:
NAME
TITLE __________________________________________
ADDRESS
CITY_____________ STATE
ZIP CODE
TELEPHONE
(6)
Further, where applicable, this bond shall be the Performance Bond furnished under
O.C.G.A. §§ 13-10-2, 13-10-20 and shall be subject to increase in the penal amount of the
bond pursuant to such statutes and ¶ XIII(C) of the UGAA-Construction Manager
Agreement.
(7)
No action can be instituted on this bond after one year from the date of Final Completion as
determined pursuant to the UGAA-Construction Manager Agreement.
SIGNED AND SEALED THIS ___________ DAY OF __________________________, 201___.
ATTEST:
(NAME OF Construction Manager)
By
Secretary(*)
CEO or President
(SURETY) (*)(*)
(TITLE)
(*)
Please apply seal of Corporation over Secretary’s Signature.
(*)(*)
Please apply seal of Surety and arrange for countersignature by a “Georgia Licensed Agent” of Surety
pursuant to O.C.G.A. §33-23-5. Kindly show title of the aforesaid agent as “Georgia Licensed Agent.”
(*)
Attach Power of Attorney
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_ UGAA-CM Agreement - Supplement J cont._
PAYMENT BOND
Bond No. ______________________
Project No. or Name or Location ____________________
KNOW ALL MEN BY THESE PRESENTS:
That____________________________ (insert legal name and address of the Construction Manager) as principal
(hereinafter referred to as the "Principal") and _________________________________ (insert legal name and
address of the Surety) as Surety (hereinafter referred to as "Surety"), are held and firmly bound unto the
University of Georgia Athletic Association, Inc. (hereinafter referred to as "UGAA") as Obligee and the
University of Georgia (hereinafter referred to as “UGA”) and the Board of Regents of the University System
of Georgia (hereinafter referred to as “BOR”) as Additional Obligees for the use and benefit of claimants defined,
hereinafter in the amount of:_________________________________ DOLLARS ($____________) (insert Stated
Cost Limitation set forth preceding Article I of the UGAA-Construction Manager Agreement, to be replaced by the
GMP when a GMP Change Order is executed by UGAA, to be replaced by the fixed Contract Price in the event
that UGAA elects to invoke the conversion provided for in ¶ V(N) of the UGAA-Construction Manager Agreement)
to which payment Principal and Surety bind themselves, their heirs, executors, administrators, successors, and
assigns jointly and severally, firmly by these presents.
WHEREAS, the above bounden Principal has entered into a contract with UGAA with an Effective Date of
the ______ day of _____________, 201______ for ______________________ (insert name of Work) in
accordance with the drawings and specifications prepared by: ________________________________
(insert name, firm, title, and address) which contract is incorporated herein by reference and made a part
hereof, and is hereinafter referred to as the Contract or the “UGAA-Construction Manager Agreement.”
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that if the Principal shall promptly
make payment to all claimants as hereinafter defined, for all labor and materials supplied in the prosecution
of the Work provided for in said UGAA-Construction Manager Agreement, then this obligation shall be
void, otherwise it shall remain in full force and effect subject, however, to the following conditions:
(1)
The said Surety to this bond, for value received, hereby stipulates and agrees that no
change or changes, extension of time or extensions of time, alteration or alterations, or
addition or additions to the terms of the UGAA-Construction Manager Agreement or to the
Work to be performed thereunder, or the specifications or drawings accompanying same, or
the exercise of UGAA’s right to do Work pursuant to the UGAA-Construction Manager
Agreement shall in any way affect its obligation on this bond, and it does hereby waive
notice of any such change or changes, extension of time or extensions of time, alteration or
alterations, or addition or additions to the terms of the UGAA-Construction Manager
Agreement or to the Work or to the specifications or drawings. In addition, the Surety to this
bond, for value received, hereby agrees to the provisions of ¶ XIII(C) of the UGAAConstruction Manager Agreement, requiring increases in the penal amount of this bond
and waives notice from UGAA, UGA, or BOR of any such changes.
(2)
A claimant is defined as any subcontractor and any person supplying labor, materials,
machinery, or equipment in the prosecution of the Work provided for in said UGAAConstruction Manager Agreement.
(3)
Every person entitled to the protection hereunder and who has not been paid in full for labor
or materials furnished in the prosecution of the Work referred to in said bond before the
expiration of a period of ninety (90) days after the day on which the last of the labor was
done or performed by him, or materials or equipment or machinery was furnished or
supplied by him for which claim is made, shall have the right to sue on such payment bond
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for the amount, or the balance thereof, unpaid at the time of the commencement of such
action and to prosecute such action to final execution and judgment for the sum or sums due
him, provided, however, that any person having direct contractual relationship with a
subcontractor, but no contractual relationship express or implied with the Construction
Manager furnishing said payment bond shall have (a) given written notice to said
Construction Manager within ninety (90) days from the day on which such person did or
performed the last of the labor, or furnished the last of the materials or machinery or
equipment for which such claim is made stating with substantial accuracy the amount
claimed and the name of the party to whom the materials were furnished or supplied or for
whom the labor was performed or done; and (b) if the Construction Manager has filed a
Notice of Commencement in accordance with the requirements of the UGAA-Construction
Manager Agreement given to said Construction Manager a written Notice to Contractor
within 30 days from the filing of the Notice of Commencement or 30 days following the first
delivery of labor, materials, machinery, or equipment, whichever is later, setting forth:
A) The name, address, and telephone number of the person providing labor, material,
machinery, or equipment;
B) The name and address of each person at whose instance the labor, material, machinery
or equipment is being furnished;
C) The name and the location of the Project; and
D) A description of the labor, material, machinery, or equipment being provided and, if
known, the Contract Price or anticipated value of the labor, material, machinery, or
equipment to be provided or the amount claimed to be due, if any.
It is provided further that nothing contained herein shall limit the right of action to said 90-day
period. Notice may be served by the depositing of a notice, certified mail, postage paid, duly
addressed to the Construction Manager at any place he maintains an office or conducts his
business, or his residence, in any post office or branch post office or any letter box under the
control of the Post Office Department or notice may be served by statutory mail pursuant to
O.C.G.A. § 9-10-12 or in any manner in which the sheriffs of Georgia are authorized by law
to serve summons or process. Every suit instituted under this section shall be brought in the
name of the claimant without UGAA, UGA, or BOR being made a party thereof. The official
who has custody of said bond is authorized and directed to furnish, to any person making
application thereof who submits an affidavit that he has supplied labor or materials for such
Work and payment therefore has not been made, or that he is being sued on any such bond,
a copy of such bond and the UGAA-Construction Manager Agreement for which it was
given, certified, by the official who has custody of said bond and UGAA- Construction
Manager Agreement shall be admitted in evidence without further proof. Applicants shall
pay for such certified statements and such fees as the official fixes to cover the cost of
preparation thereof, but in no case shall the fixed fee exceed the fees that the clerks of the
superior courts are permitted to charge for similar copies.
(4)
It is expressly agreed by the Principal and the Surety that UGAA, UGA, or BOR, if it (they)
desire(s) to do so, is (are) at liberty to make inquiries at any time of subcontractors, laborers,
materialmen, or other parties concerning the status of payments for labor, materials, or
services furnished in the prosecution of the Work.
(5)
For the purposes of this bond, the name and address of the responsible official of the
Surety’s claims department, to whom correspondence and telecommunications may be
addressed and/or with whom business concerning this bond may be conducted will be as
follows:
NAME
TITLE ______________________________________
ADDRESS
CITY
STATE
ZIP CODE
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CM.GMP v2.0 SUPP UGAA 3/18/2015
TELEPHONE
(6)
Further, where applicable, this bond shall be the Payment Bond furnished under O.C.G.A.
§§ 13-10-1, 13-10-60 et seq. and shall be subject to increase in the penal amount of the
bond pursuant to such statutes and ¶ XIII(C) of the UGAA-Construction Manager
Agreement.
(7)
No action can be instituted on this bond after one year from the date of Final Completion as
determined pursuant the UGAA-Construction Manager Agreement.
SIGNED AND SEALED THIS ___________ DAY OF __________________________, 20_____.
ATTEST:
(NAME OF Construction Manager)
By
Secretary(*)
CEO or President
(SURETY) (*)(*)
(TITLE)
(*)
Please apply seal of Corporation over Secretary’s Signature.
(*)(*) Please apply seal of Surety and arrange for countersignature by a “Georgia Licensed
Agent” of Surety pursuant to O.C.G.A. §33-23-5. Kindly show title of the aforesaid agent as
“Georgia Licensed Agent.”
(*) Attach Power of Attorney
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_ UGAA-CM Agreement - Supplement K_
Notice of Commencement
TO: CLERK OF SUPERIOR COURT OF _____________________ COUNTY, GEORGIA
Pursuant to O.C.G.A. §§ 10-7-31(b) and 44-14-361.5(b), not later than fifteen (15) days after physically
commencing work on the property, the undersigned gives Notice of Commencement of improvements to
property including the following information:
A.
Name, address and telephone number of Construction Manager (“CM”): _____________ .
B.
Name and location of the Project being constructed: _____________ .
C.
Legal description of the Property upon which the improvements are to be made: Legal
Description is attached as Exhibit A to this Notice of Commencement and is incorporated by
reference in it.
D.
Name and address of person or entities who truly owns the Property upon which improvements
are to be made: Board of Regents of the University System of Georgia, 270 Washington Street
SW, Atlanta, Georgia 30334.
E.
Name and address of the person upon whose instance the improvements are to be made:
University of Georgia Athletic Association, Inc., Butts-Mehre Heritage Hall, 1 Selig Circle,
Athens, Georgia 30603.
F.
Name and address of the Surety for the Payment and Performance Bonds: _____________ .
G.
Name and address of the construction lender, if any: _____________ .
_______________________________ ___________________
________________
signature, printed name, and title of CM’s representative
THIS DOCUMENT MUST BE FILED WITH THE CLERK OF THE SUPERIOR COURT FOR THE
COUNTY IN WHICH THE PROJECT IS LOCATED AND A COPY OF THIS DOCUMENT MUST BE
POSTED AT THE PROJECT SITE NOT LATER THAN FIFTEEN (15) DAYS AFTER THE
CONSTRUCTION MANAGER PHYSICALLY COMMENCES WORK ON THE PROPERTY.
WITHIN TEN (10) CALENDAR DAYS OF THE RECEIPT OF A WRITTEN REQUEST, DELIVER A
COPY OF THIS NOTICE OF COMMENCEMENT TO ANY SUBCONTRACTOR, MATERIALMAN,
OR OTHER PERSON OR ENTITY MAKING THE REQUEST.
[Exhibit A follows consisting of ________ pages]
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CM.GMP v2.0 SUPP UGAA 3/18/2015
Exhibit A to Notice of Commencement
[legal or other definitive and accurate description of property improved attached]
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_ UGAA-CM Agreement - Supplement L_
Certificate of Substantial Completion
Effective Date of UGAA-Construction
Manager Agreement:
Realized Date of Substantial Completion:
Construction Manager’s Customer:
Construction Manager (“CM”):
Project:
Project location:
The ______ day of ____________, 201_____
The ______ day of __________, 201__
The University of Georgia Athletic Association, Inc.
________________________ (insert legal name of CM)
______________________
in or near the city of ________________________,
_________ County, Georgia ________
Construction Manager certifies that:
A.
Except for Punchlist Work described below, all Work performed (including that performed by
Subcontractors, materialmen, and suppliers) is complete and complies with the Contract Documents, and
the Project may be used in the manner intended by the University of Georgia Athletic Association, Inc.
(“UGAA”);
B.
UGAA receives clear title to all Work performed and materials supplied; and all labor, materials, and
Services provided are free of claims of liens, unsatisfied demands for payment related to the Project,
claims against bonds, and all other forms of encumbrance;
C.
All testing and inspections have been completed with results indicating compliance with the requirements
indicated in the Contract Documents;
D.
The Work and the site have been cleaned as required by the Contract Documents;
E.
All amounts due to utilities have been paid, and upon acceptance and execution of this Certificate by
UGAA, responsibility for utility accounts will be transferred to UGAA or UGAA’s designee;
F.
CM has notified its Surety (if any) of the validity of this proposed Certificate of Substantial Completion as
a substantive matter;
G.
CM has fully, timely, and lawfully allocated, disbursed, and distributed all funds previously paid to CM
by UGAA to each of Subcontractor, supplier, mechanic, and materialman who has provided labor,
materials, Services, or Work of any kind for the improvement of the Property and the Project;
H.
No lien or claim of lien exists, has been filed, or can be filed with validity against the Property, UGAA, the
University of Georgia (“UGA”), the Project, or the Board of Regents of the University System of Georgia
(“Board of Regents”) by any Subcontractor, supplier, mechanic, or materialman for whose labor or
materials CM has previously been paid by UGAA;
I.
No claim or demand exists, has been asserted, or can be asserted with validity against the Performance
and Payment Bonds provided by CM on the Project;
J.
Upon CM’s receipt of Final Payment, CM will, within five days, pay Subcontractors all amounts due them
that are included in that Payment;
K.
L.
No amounts are withheld from the Subcontractors for whose Work CM has been paid;
M.
CM has submitted in writing, in accordance with Article VIII of the UGAA-CM Agreement, all claims,
proposed Change Orders, liens, or demands of any kind that it has or may have against UGAA, UGA, the
CM will comply with the Closeout Obligations, as set forth in the UGAA-CM Agreement; and all required
Closeout Materials and information will be timely submitted to UGAA;
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CM.GMP v2.0 SUPP UGAA 3/18/2015
Board of Regents, and their insurers and sureties in the manner required under the Agreement – or they
are hereby waived and released;
N.
Building, fire, or other governmental authorities having jurisdiction over the Project and authorization to
issue a Certificate of Occupancy (or similar written authorization to occupy) have issued such a
document(s); and it is (they are) attached hereto;
O.
Nothing in this Certificate of Substantial Completion shall be construed to limit, modify, nullify, or
abrogate waivers and releases previously given by CM and Subcontractors;
P.
The only Work that is incomplete or non-compliant is contained in the attached Punchlist, dated ______
___, 201__ , consisting of ____________ (insert number) items, completion and correction of which have a
combined value of $_______________ - and CM will complete or correct remaining incomplete, defective,
or deficient Work and all Punchlist Work within fourteen calendar days of the Realized Date of
Substantial Completion as indicated in this certificate; and
Q.
Transfer of responsibility for permanent utilities was effective at ________ a.m./p.m. on the _____ day of
______________, 201______.
Commencement of Warranty Periods. Unless otherwise expressly provided to the contrary in the Contract
Documents, and subject to the express provisions of the Agreement governing CM’s warranty of completed
Work, the warranty period for all systems, materials, and assemblies begins on the below-noted Realized
Date of Certificate of Substantial Completion (as approved or designated by UGAA and indicated as such
below on this Certificate). Where Work is incomplete, defective, or otherwise non-compliant on the Realized
Date of Substantial Completion set forth below, warranty periods applicable to that Work and the
assemblies of which it is a component, shall begin on the date on which that incomplete, defective, or noncompliant Work is brought into compliance and is accepted as such in writing by UGAA and shall continue
for the full term thereafter.
Partial occupancy. If this Certificate covers only part of the Work, an attachment describing the scope of
Work to which it applies – and which is to be occupied by UGAA – is attached to this Certificate, and signed
by CM.
The statements made above in this Certificate are based upon my personal knowledge and are true and
correct; and UGAA is entitled to rely upon their completeness and veracity in making subsequent payments
and conducting its subsequent affairs with respect to this Project and CM.
SO SWORN and CERTIFIED by the Construction Manager:
Construction Manager: __________________
(insert) (SEAL)
____________________________________
Signature of CM’s authorized representative and
Affiant here
___________________________ __________
Representative’s printed name
title
____________________________________
CM’s address
___________________ _______ __________
City
State
Zip
Witness:
NOTARY
Sworn and subscribed before me by ___________ on
this ____ day of ____, 201__, who is:
personally known to me [__], or who
produced ______________ (identify document)
as identification.
______________________
NOTARY PUBLIC
(SEAL)
My commission expires on _____________ (date).
Date of Substantial Completion
Original Contractual Date of Substantial Completion:
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CM.GMP v2.0 SUPP UGAA 3/18/2015
Days added by previous executed Change Orders:
______ calendar days
Days added by previous unilateral Change Orders issued by Owner:
______ calendar days
Modified Contractual Date of Substantial Completion:
______ ___, 201__
The Realized Date of Substantial Completion is ______ ___, 201__ at __: ____ ET (insert time).
ACCEPTED BY:
University of Georgia Athletic Association, Inc.
__________________________________
signature of authorized representative
____________________________
date
_________________________ E.T.
time
Approved: _____________ (Design Professional’s
legal name)
_______________________________________
signature of authorized representative
_________________________, _____________
representative’s printed name
title
____________________________
date signed
Witness: _______________________
(ADR signature)
_____________, 201____
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_ UGAA-CM Agreement - Supplement M_
Warranty on Walls
STATE OF GEORGIA
_________________ COUNTY
V.
Know all men by these presents that the undersigned Construction Manager (“CM”) is
held and firmly bound unto the University of Georgia Athletic Association, Inc. (“UGAA”),
as well as the University of Georgia (“UGA”) and the Board of Regents of the University
System of Georgia (“Board of Regents”) as third-party beneficiaries, for the warranty of the
walls described herein. CM hereby binds itself and its successors and assigns by these
presents.
W.
The condition of the above obligation is such that whereas CM and UGAA have entered
into certain agreement for construction with UGAA, with an Effect Date of the ___ day of
_____________, 201____ (“Agreement” or “UGAA-CM Agreement”) for the construction of
_____________________ (insert the name of the Project from page one of the Agreement).
X.
CM hereby warrants for a period of five years from the date of written acceptance of the
Certificate of Substantial Completion by the representative of UGAA, the walls of the
building constructed or renovated as part of the Project, including, but not limited to,
vertical and/or horizontal expansion joints, below and/or above-grade waterproofing,
below and/or above-grade damp proofing, thru-wall flashing, damp course flashing and
waterproofing of joints at openings in walls, including but not limited to door jambs,
windows, vents, and pipe openings shall be absolutely watertight and free from all leaks,
seepage, or dampness. At no expense to UGAA, UGA, or the Board of Regents, CM will
repair any defects that may develop in the Work, in a manner compatible to the system and
acceptable under industry standards and in accordance with the requirements of the
Contract Documents, provided, however, that the following are excluded from this
warranty:
1.
Defects or failures resulting solely from abuse by UGAA; and
2.
Damage caused by fire (not involving performance of the Work), tornado, hail,
hurricane, acts of God, wars, riots, and civil commotion.
Y.
Except where design has been delegated to CM as provided in the UGAA-CM Agreement,
CM is not an insurer of (nor is it a guarantor of the suitability or adequacy of) the design.
Any other provisions of this warranty to the contrary notwithstanding, CM shall not be
required to remedy any unsuitable or inadequate design of others – unless CM was aware,
or should have been aware, of its unsuitability or inadequacy before installation of the
Work and failed to notify UGAA of that unsuitability or inadequacy at the earliest possible
time.
Z.
CM hereby agrees that, should any leaks or defects occur in the walls of the building
constructed as part of the Project, CM shall promptly remedy the said leaks or defects and
pay for any damage caused to any other portion of the Project or its contents resulting
therefrom.
IN WITNESS WHEREOF, CM has caused this instrument to be executed on this _____ day of
_____________, 201______.
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SO SWORN and CERTIFIED by Construction Manager:
Construction Manager: __________________
(insert) (SEAL)
____________________________________
Signature of CM’s authorized representative and
affiant here
___________________________ __________
Representative’s printed name
title
____________________________________
CM’s address
___________________ _______ __________
City
State
Zip
Witness:
NOTARY
Sworn and subscribed before me by ___________ on
this ____ day of ____, 201__, who is:
personally known to me [__], or who
produced ______________ (identify document)
as identification.
______________________
NOTARY PUBLIC
(SEAL)
My commission expires on _____________ (date).
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_ UGAA-CM Agreement - Supplement M cont._
Warranty on Roof
STATE OF GEORGIA
_________________ COUNTY
A.
Know all men by these presents that the undersigned Construction Manager (“CM”) is
held and firmly bound unto the University of Georgia Athletic Association, Inc.
(“UGAA”), as well as the University of Georgia (“UGA”) and the Board of Regents of the
University System of Georgia (“Board of Regents”) as third-party beneficiaries, for the
warranty of the roof described herein. CM hereby binds itself and its successors and
assigns by these presents.
B.
The condition of the above obligation is such that whereas CM and UGAA have entered
into certain agreement for construction with UGAA, with an Effect Date of the ___ day of
_____________, 201____ (“Agreement” or “UGAA-CM Agreement”) for the construction
of _____________________ (insert the name of the Project from page one of the Agreement).
C.
CM hereby warrants for a period of five years from the date of written acceptance of the
Certificate of Substantial Completion by the representative of UGAA, the roof of the
building constructed or renovated as part of the Project and roofs of covered passages,
including, but not limited to, material used as a roof base or insulation over which the roof
is applied, roofing materials, promenade decks, or any other Work on the surface of the
roof, flashing, base flashing, counter flashing, metal work, gravel stops, liquid
waterproofing, coping, or roof expansion joints and vent or pipe penetrations shall be
absolutely watertight and free from all leaks. At no expense to UGAA, UGA, or the Board
of Regents, CM will repair any defects that may develop in the Work, including but not
limited to: blisters, exposed felts, ridges, wrinkles, splits, warped insulation and loose
flashing, in a manner compatible to the system and acceptable under industry standards
and in accordance with the requirements of the Contract Documents, provided, however,
that the following are excluded from this warranty:
1.
Defects or failures resulting solely from abuse by UGAA; and
2.
Damage caused by fire (not involving performance of the Work), tornado, hail,
hurricane, acts of God, wars, riots, and civil commotion.
D.
Except where design has been delegated to CM as provided in the Agreement, CM is not
an insurer of (nor is it a guarantor of the suitability or adequacy of) the design. Any other
provisions of this warranty to the contrary notwithstanding, CM shall not be required to
remedy any unsuitable or inadequate design of others – unless CM was aware, or should
have been aware, of its unsuitability or inadequacy before installation of the Work and
failed to notify UGAA of that unsuitability or inadequacy at the earliest possible time.
E.
CM hereby agrees that, should any leaks or defects occur in the roof of the building
constructed or renovated as part of the Project, CM shall promptly remedy the said leaks
or defects and pay for any damage caused to any other portion of the Project or its
contents resulting therefrom.
IN WITNESS WHEREOF, Construction Manager has caused this instrument to be executed on
this _____ day of _____________, 201______.
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CM.GMP v2.0 SUPP UGAA 3/18/2015
SO SWORN and CERTIFIED by Construction Manager:
Construction Manager: __________________
(insert) (SEAL)
____________________________________
Signature of CM’s authorized representative and
affiant here
___________________________ __________
Representative’s printed name
title
____________________________________
CM’s address
___________________ _______ __________
City
State
Zip
Witness:
NOTARY
Sworn and subscribed before me by ___________ on
this ____ day of ____, 201__, who is:
personally known to me [__], or who
produced ______________ (identify document)
as identification.
______________________
NOTARY PUBLIC
(SEAL)
My commission expires on _____________ (date).
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_ UGAA-CM Agreement - Supplement N_
CM Preconstruction Overhead Costs
The following is an all-inclusive list of items that may, if incurred, be charged toward
“CM Preconstruction Overhead Costs.” None of these items will be allowed to be
charged to “Cost of the Work.” Provide resumes of designated personnel for UGAA
advance approval. Limiting values for the items listed shall be attached to this
Supplement N in the pages that follow.
A.
1
2
3
4
5
6
7
8
9
Preconstruction Supervision & Management
Senior Project Manager (identify)
Project Manager (identify)
Preconstruction Manager (identify)
Project Superintendent (identify)
Cost Control
Scheduling
Secretary/Administrative Assistant
Consultant (identify)
Other (identify)
Subtotal
B.
10
11
12
13
14
15
16
17
Preconstruction-Miscellaneous
Office supplies
Postage and shipping
Blueprint/Photostat
Phone charges
Phone charges – long distance
Courier Service
Travel expense
Other (identify)
Key
Key
Key
Key
Key
Subtotal
Total of Preconstruction Costs and Expenses
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_ UGAA-CM Agreement - Supplement O_
CM Construction Overhead Costs
The following is an all-inclusive list of items that may, if incurred, be charged toward the
“General Conditions”/ “CM Construction Overhead Costs” line-item within the GMP.
None of these items will be allowed to be charged to “Cost of the Work.” Provide
resumes of designated personnel for UGAA advance approval. Limiting values for the
items listed shall be attached to this Supplement O in the pages that follow.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
Site Supervision and Management
Senior Project Manager (identify)
Project Manager (identify)
Project Superintendent (identify)
Assistant Project Manager (identify)
Area Superintendent (identify)
Secretary (Administrative Assistant)
Project Engineer (identify)
Project Engineer II (identify)
Engineering or Engineering Company (identify)
Office Engineer (identify)
Rodman (identify)
Cost Control
Safety Engineer (identify)
Scheduling
Purchasing
Project Accountant (identify)
Other (identify)
Other (identify)
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
Site Office Expense
Job-site office trailer rent
Jobsite Office build out
Jobsite Office set-up
Temporary construction trailer / storage
Job-site office furniture (identify)
Job-site office machines and equipment (identify)
Copy machines and maintenance (identify)
Job-site office supplies
Job-site office Janitor and sanitation supplies
Postage and shipping
First-aid, medical treatment (identify)
Job sign
Progress photos
Extra copies of Construction Documents
Blueprints and photocopies
Job-site telephone system
Job-site telephone installation
Job-site telephone charges
Job-site long-distance charges
Job-site radio communications (specify)
Key
Key
Key
Key
Key
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CM.GMP v2.0 SUPP UGAA 3/18/2015
39
40
Job-site radio maintenance (specify)
Others
41
42
43
44
45
46
47
48
49
50
51
52
53
Safety and Security
n/a
Sidewalk barricades
Safety railings
Opening closures and gates
Weather protection
Temporary ladders and stairs
Watchman and security guard (specify)
Temporary site fencing
Traffic control
Fire Protection, extinguishers, barrels, etc.
Safety equipment (specify)
Rainwear and Hardhats
Others (specify)
54
55
56
57
58
59
60
61
Cleaning
Daily cleaning
Final cleaning
Window and skylight cleaning
Trash bin rental and hauling
Trash chutes and hoppers
Dump fees and hauling fees
Dust / temporary barricades
Others (specify)
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
Temporary utilities and miscellaneous job-site items
Temporary electricity for job-site office
Security for job-site office
Project temporary power
Job-site office water
Water coolers
Water barrels
Job-site office ice machine
Ice and cups
Temporary toilets (installation)
Temporary toilets (rental and maintenance)
Cold weather protection
Project temporary heat
Drug testing
Computer – PCS (specify)
Computers (specify)
Software (specify)
MIS Charges (specify)
Parking permits (specify)
Living expenses (specify)
Executive travel (specify)
Air fare (specify)
Car rental (specify)
Hotel (specify)
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CM.GMP v2.0 SUPP UGAA 3/18/2015
85
86
87
Meals (specify)
Ceremony expenses
Other (specify)
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
General equipment
Automobiles (specify)
Pick-up trucks (specify)
Temporary packing (specify)
Small tools/expendables
Survey equipment (specify)
Hoist operator
Hoist service
Erect, maintain, and dismantle hoist
Tower crane service
Erect, maintain, and dismantle tower crane
Crane rental/operator
Temporary elevator and operator
Erect, maintain, and dismantle temporary elevator
Protect permanent elevator
On-site consumption by on-site equipment of fuel, oil, and grease
Vehicle repairs and maintenance
Other (specify)
105
106
107
108
109
110
111
Bonds and insurance
Performance and payment bond premium
Workers Compensation insurance
Builders Risk insurance
Liability insurance
Other (specify)
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_ UGAA-CM Agreement - Supplement P_
Mold Certification
STATE OF GEORGIA
COUNTY OF __________
I, the undersigned, ___________ (insert name), being first duly sworn, depose and state as
follows:
A.
I am over twenty-one years of age, and I am competent to make this Affidavit;
B.
I am employed in the position of ______________ (insert title) by ____________, (insert legal name
of Construction Manager) (“CM”) which has been employed pursuant to a contract with an
effective date of the ___ day of ___________, 201___ (“UGAA-CM Agreement”) by the
University of Georgia Athletic Association, Inc. (“UGAA” ) to provide labor, materials, and
services pertaining to _________________ (the “Project”) located on or near ___________(insert
street address), in the county of __________________, Georgia, on real property (“the Property”),
which is owned by the Board of Regents of the University System of Georgia and leased to
UGAA;
C.
I make this Certification Affidavit on the basis of my own personal knowledge and upon proper
investigation;
D.
I make this Certification Affidavit understanding that my statements and representations in it,
and in the Final Payment Application to which this Affidavit is attached, will be relied upon by
UGAA in making payments to CM with respect to the Project;
E.
I certify that structures enclosed as part of the Work are free of mold, mildew, and bacterial and
fungal infestation, that no Work was covered unless the substrate or Work to be covered was
examined for dryness, absence of water or visible moisture in cavities and on the Work to be
covered, and that materials and assemblies delivered to the Project site were tested as required
for adherence to standards of dryness set forth in the Construction Documents before
acceptance and incorporation in the Work; and
F.
I am authorized by CM to make this Affidavit, and CM has approved the statements made
herein, which are true and correct.
FURTHER AFFIANT SAYETH NOT.
Construction Manager: __________________
(insert)
____________________________________
Signature of CM’s authorized representative and
Affiant here
___________________________ __________
Representative’s printed name
title
____________________ (Seal)
CM’s Legal Name
____________________________________
Address
___________________ _______ __________
City
State
Zip
Witness:
NOTARY
Sworn and subscribed before me by ___________ on
this ____ day of ____, 201__, who is:
personally known to me [__], or who
produced ______________ (identify document)
as identification.
______________________
NOTARY PUBLIC
(SEAL)
My commission expires on _____________ (date).
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_ UGAA-CM Agreement - Supplement Q_
Instruction to Change
ITC No. _______
Project: _______________________
This Instruction to Change pertains to the Agreement between University of Georgia Athletic Association,
Inc. (“UGAA”) and ___________________ (insert Construction Manager’s legal name) (“CM”), having an
effective date of the ____ day of ______________, 201___ (“UGAA-CM Agreement”).
CM is directed to perform in accordance with the following Instruction to Change (“ITC”):
The Scope of Work is modified to include: ______________________________________________
(insert general description of change) as described in _________________________ (insert documents
indicating the change in Scope of Work) attached hereto.
The Contract Time not extended by this ITC; and the Project Schedule remains unchanged as a
result of this ITC.
Select which one of the following applies:
[__]
No additional cost or increase of the GMP is involved in the above-noted change in the Work;
[__]
CM shall perform the Work described above in this ITC for an amount calculated in accordance
with the Pricing of Adjustments provision in Art. VIII of the CM Agreement. A Change Order
will issue for the changed Work, consistent with this ITC, increasing [__] decreasing [__] (select
one) the Guaranteed Maximum Price (“GMP”) by the amount of $____________, which changed
amount is maximum that UGAA is obligated to pay as a result of the above-described change.
CM accepts the risk that it will incur costs in excess of that amount in its performance of the
above-described changed Work. The amount stated in this paragraph includes all CM’s labor,
materials, supervision, and administration costs, profit, overhead, Bond and insurance costs,
and time required to provide the changed Scope of Work in accordance with Article VIII.
Therefore, except for compensation provided in this ITC, CM waives any and all claims related
to the change set forth here; or
[__]
CM shall perform the Work described above in this ITC under the Force Account provisions set
forth in ¶ VIII(C)(6) of the CM Agreement, with a not-to-exceed limit of $________.
This ITC is effective on the date accompanying the UGAA signature below; and CM’s
performance shall be modified accordingly.
ADR:
________________________
signature of ADR
__________________________
printed name
______________________, 201___
date signed
University of Georgia Athletic Association, Inc.
__________________________________
signature of authorized representative of UGAA
__________________, 201__
date signed
[Note: This signature required for ITC’s ordering
changes with a value in excess of $10,000.00 and those
that involve extensions of Contract Time.]
_ UGAA-CM Agreement - Supplement R_
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Rock Blasting Checklist
UGA Design & Construction
Supplemental General Requirements and Standards
May 16, 2014
01 41 26.05
UGA Blasting Checklist
** This form is to be submitted and approved prior to all blasting activities **
Project Name:
________________________________________________________________________
Contractor Responsible:
_________________________________________________________________
Trade Contractor Responsible:
___________________________________________________________
Blasting Company Responsible:
___________________________________________________________
Scheduled Date / Time of Blasting:
________________________________________________________
Notifications (one week in advance):
1. UGA Office of Fire Safety (call 706-369-5706)
Date/Time Notified_______________________ Contact
Person______________________________
2. UGA Police (call
Date/Time Notified_______________________ Contact
Person______________________________
3. Local Police/Fire Department (For Athens-Clarke County call 706-542-2200)
Date/Time Notified_______________________ Contact Person
______________________________
Day of Blast:
_______________________________________________________________________
2. Local Utilities Department (For Athens-Clarke County call 706-613-3470 Admin)
Date/Time Notified _______________________ Contact Person
_____________________________
3. Department Notifications
(Coordinate list and Contact with Owner’s Representative)
Department Name: _______________________ Date/Time
Notified__________________________
Checklist
1. Blaster certification card on file / Georgia license #:
_______________________________________________________________________________
2. Pre-blast seismic survey completed prior to
blast__________________________________________
Surveying Company_______________________________ Survey Date
________________________
3. 6’ of earth cover confirmed on site
____________________________________________________
4. Blast mats in place
__________________________________________________________________
5. Crushed stone used to fill boring holes
__________________________________________________
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CM.GMP v2.0 SUPP UGAA 3/18/2015
6. Perimeter verified & staffed by blaster and WT with radio communication – 200’ from blast
zone___________________________________________________________________________
___
7. Verify no charges are within 10’ of existing utilities
________________________________________
8. Immediately prior to blasting administer 3 quick sirens and 1 long siren with air horn ____________
9. Seismograph in place and functional
__________________________________________________
10. Post-blast seismograph reading _____________________ Time of Reading
____________________
11. Blaster checks detonation tail cap to verify all explosives have discharged before anyone can reenter
site__________________________________________________________________________
Trade Company Responsible Signature _________________________________ Date:
______________
Trade Company Responsible Printed Name _____________________________
Contractor Signature _______________________________________________
Date:_____________
Contractor Printed Name ___________________________________________
Approval to Proceed Signature by UGA Office of Fire Safety Prior is required prior to Blasting.
This will insure that State Fire Marshal in appropriately contacted.
Authorization to Proceed with Blasting by UGA Office of Fire Safety:
Signature ___________________________________
Printed Title:_________________________________
Date:_______________________________________
END OF FORM
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_ UGAA-CM Agreement - Supplement S_
Materials certification of Construction Manager
STATE OF GEORGIA
COUNTY OF __________
I, the undersigned, ___________ (insert name), being first duly sworn, depose and state as follows:
A.
I am over twenty-one years of age, and I am competent to make this Affidavit;
B.
I am employed in the position of ______________ (insert title) by ____________, (insert legal name of
Construction Manager) (“CM”) which has been employed pursuant to a contract with an effective date
of the ___ day of ___________, 201___ (the “UGAA-CM Agreement”) by the University of Georgia
Athletic Association, Inc. (“UGAA”) to provide labor, materials, and services pertaining to
_________________ (the “Project”) located on or near ___________(insert street address), in the county
of __________________, Georgia, on real property (“the Property”), which is owned by the Board of
Regents of the University System of Georgia (and leased to UGAA);
C.
I make this Certification Affidavit on the basis of my own personal knowledge and upon proper
investigation;
D.
I make this Certification Affidavit understanding that my statements and representations in it, and in
the Final Payment Application to which this Affidavit is attached, will be relied upon by UGAA in
making payments to CM with respect to the Project;
E.
I certify that no materials containing asbestos, formaldehyde, or lead were installed in the Work or
stored within the Project or Project site by CM or its Subcontractors of any tier; and
F.
I am authorized by CM to make this Affidavit, and CM has approved the statements made herein,
which are true and correct.
FURTHER AFFIANT SAYETH NOT.
Construction Manager: ________________ (insert)
____________________________________
Signature of CM’s authorized representative and Affiant
here
___________________________ __________
Representative’s printed name
title
____________________ (Seal)
Construction Manager’s Legal Name
____________________________________
Address
___________________ _______ __________
City
State
Zip
Witness:
NOTARY
Sworn and subscribed before me by ___________ on
this ____ day of ____, 201__, who is:
personally known to me [__], or who
produced ______________ (identify document)
as identification.
______________________
NOTARY PUBLIC
(SEAL)
My commission expires on _____________ (date).
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_ UGAA-CM Agreement - Supplement S1_
Materials certification of Subcontractor
STATE OF GEORGIA
COUNTY OF __________
I, the undersigned, ___________ (insert name), being first duly sworn, depose and state as follows:
A.
I am over twenty-one years of age, and I am competent to make this Affidavit;
B.
I am employed in the position of ______________ (insert title) by ____________, (insert legal name of
Subcontractor) (“Subcontractor”) which has been employed by ____________ (“Construction
Manager” or “CM”) which has been employed pursuant to a contract with an effective date of the
___ day of ___________, 201___ (the “UGAA-CM Agreement”) by the University of Georgia
Athletic Association, Inc. (“UGAA”) to provide labor, materials, and services pertaining to
_________________ (the “Project”) located on or near ___________(insert street address), in the county
of __________________, Georgia, on real property (“the Property”), which is owned by the Board of
Regents of the University System of Georgia (and leased to UGAA);
C.
I make this Certification Affidavit on the basis of my own personal knowledge and upon proper
investigation;
D.
I make this Certification Affidavit understanding that my statements and representations in it, and in
the Final Payment Application to which this Affidavit is attached, will be relied upon by UGAA in
making payments to CM with respect to the Project and by CM in making payments to
Subcontractor;
E.
I certify that no materials containing asbestos, formaldehyde, or lead were installed in the Work or
stored within the Project or Project-site by Subcontractor or its Subcontractors of any tier; and
F.
I am authorized by Subcontractor to make this Affidavit, and Subcontractor has approved the
statements made herein, which are true and correct.
FURTHER AFFIANT SAYETH NOT.
Subcontractor: __________________ (insert)
____________________________________
Signature of Subcontractor’s authorized representative
and Affiant here
___________________________ __________
Representative’s printed name
title
____________________ (Seal)
Subcontractor’s Legal Name
____________________________________
Address
___________________ _______ __________
City
State
Zip
Witness:
NOTARY
Sworn and subscribed before me by ___________ on
this ____ day of ____, 201__, who is:
personally known to me [__], or who
produced ______________ (identify document)
as identification.
______________________
NOTARY PUBLIC
(SEAL)
My commission expires on _____________ (date).
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_ UGAA-CM Agreement - Supplement T_
Construction Manager Proposal Cover Sheet
1.
FEES:
A.
CM PRECONSTRUCTION FEE: As described in ¶ II(C)(2)(a) and related provisions of the
UGAA-CM Agreement.
TOTAL
CM Preconstruction Fee
B.
$
CM CONSTRUCTION FEE: As described in ¶ II(C)(2)(d) and related provisions of the
UGAA-CM Agreement.
TOTAL
CM Construction Fee
2.
$
OVERHEAD COSTS:
A.
CM’S PRECONSTRUCTION OVERHEAD COSTS: As described in ¶ II(C)(2)(b) and
related provisions of the UGAA-CM Agreement.
TOTAL
CM Preconstruction Overhead Costs
B.
$
CM’S CONSTRUCTION OVERHEAD COSTS: As described in ¶ II(C)(2)(e) and related
provisions of the UGAA-CM Agreement.
TOTAL
CM Construction Overhead Costs
$
TOTAL MAXIMUM OVERHEAD COSTS: Sum of 2(A) and 2(B) above: $__________________
____________________________________________________________
Legal Name of CM
By:_________________________________________________________
Signature of CM Officer
____________________________________________________________
Title of CM Officer
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_UGAA – CM AGREEMENT_
Index
ARTICLE I
Basic Terms
ARTICLE II
General Terms and Conditions
ARTICLE III
Construction Manager’s Obligations, Duties, and Warranties
ARTICLE IV
UGAA’s Obligations and Duties
ARTICLE V
Payment
ARTICLE VI
Time
ARTICLE VII
Subcontractors
ARTICLE VIII
Changes
ARTICLE IX
Disputes
ARTICLE X
Default, Suspension, and Termination
ARTICLE XI
Indemnity
ARTICLE XII
Insurance
ARTICLE XIII
Performance and Payment Bonds
ARTICLE XIV
Intellectual Property and Confidentiality
ARTICLE XV
Special Clauses
ARTICLE XVI
Notices and Representatives
Supplement A
Contract Documents
Supplement B
Component Change Order
Supplement B1
GMP Change Order
Supplement B2
Change Order
Supplement B3
Conversion Change Order
Supplement B4
Post-Conversion Change Order
Supplement C
Unit Prices
Supplement D
CM Interim Waiver and Release Upon Payment
Supplement E
CM Interim Affidavit
Supplement F
Subcontractor Interim Waiver and Release Upon Payment
Supplement G
CM Waiver and Release Upon Final Payment
Supplement H
CM Final Affidavit
Supplement I
Subcontractor Waiver and Release Upon Final Payment
Supplement J
Bond Forms
Supplement K
Notice of Commencement
Supplement L
Certificate of Substantial Completion
Supplement M
Warranties on Walls and Roofs
Supplement N
CM Preconstruction Overhead Costs
Supplement O
CM Construction Overhead Costs
Supplement P
Mold Certification
Supplement Q
ITC Form
Supplement R
Rock Blasting Checklist
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Supplement S
Materials Certification of CM
Supplement S1
Materials Certification of Subcontractor
Supplement T
CM Proposal Cover Sheet
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