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Agenda Packet CC - 02/01/2016 - CITY COUNCIL MEETING PACKET 2-1-2016
Joe Lockwood, Mayor CITY COUNCIL Karen Thurman Matt Kunz Bill Lusk Burt Hewitt Joe Longoria Rick Mohrig CITY COUNCIL CHAMBERS City Hall, Suite 107E Monday, February 1, 2016 Regular Council Meeting Agenda 6:00 PM INVOCATION - Remco Brommet, Chaplain for the City of Milton Police and Fire. CALL TO ORDER 1) ROLL CALL 2) PLEDGE OF ALLEGIANCE (Led by Mayor Joe Lockwood) 3) APPROVAL OF MEETING AGENDA (Add or remove items from the agenda) (Agenda Item No. 16-022) MILTON CITY COUNCIL REGULAR COUNCIL MEETING FEBRUARY 1 , 2016 Page 2 of 5 Persons needing special accommodations in order to participate in any City meeting should call 678-242-2500. 4) PUBLIC COMMENT 5) CONSENT AGENDA 1. Approval of the January 4, 2016 Regular City Council Meeting Minutes. (Agenda Item No. 16-023) (Sudie Gordon, City Clerk) 2. Approval of the January 11, 2016 City Council Work Session Minutes. (Agenda Item No. 16-024) (Sudie Gordon, City Clerk) 3. Approval of the January 20, 2016 Regular City Council Meeting Minutes. (Agenda Item No. 16-025) (Sudie Gordon, City Clerk) 4. Approval of the Financial Statements for the Period Ending December, 2015. (Agenda Item No. 16-026) (Bernadette Harvill, Finance Manager) 5. Approval of a Revision to the Personnel Policy Handbook Regarding Discipline and Grievances. (Agenda Item No. 16-027) (Sam Trager, Human Resources Director) 6. Approval of a Contract with Pontifex Consulting Group to Provide Professional Consulting Services. (Agenda Item No. 16-028) (Sam Trager, Human Resources Director) 7. Approval of a Furniture Design Consultant Agreement between the City of Milton and Office Images, Inc. (Agenda Item No. 16-029) (Carter Lucas, Assistant City Manager) 8. Approval of a Construction Services Agreement between the City of Milton and Design-Build Solutions, Inc./The Garland Company, Inc., dba Garland/DBS, Inc. for Emergency Roof Repairs at the Thomas Byrd Sr. House. (Agenda Item No. 16-030) (Jim Cregge, Parks & Recreation Director) MILTON CITY COUNCIL REGULAR COUNCIL MEETING FEBRUARY 1 , 2016 Page 3 of 5 Persons needing special accommodations in order to participate in any City meeting should call 678-242-2500. 9. Approval of a Construction Services Agreement between the City of Milton and Strickland Pipeline and Construction, Inc. for “Thompson Road Stormwater System Improvements (Emergency Repairs)”. (Agenda Item No. 16-031) (Carter Lucas, Assistant City Manager) 10. Approval of Construction Services Agreement between the City of Milton and Southern Demolition, LLC for the Demolition of Structures. (Agenda Item No. 16-032) (Carter Lucas, Assistant City Manager) 6) REPORTS AND PRESENTATIONS (None) 7) FIRST PRESENTATION 1. Consideration of RZ16-01 – To Amend the Deerfield Form Based Code, Chapter 64, Article XX, Article 1 – General. (Agenda Item No. 16-033) (Kathleen Field, Community Development Di rector) 2. Consideration of an Ordinance to Adopt Amendments to the Fiscal 2016 Budget for Each Fund of the City of Milton, Georgia Amending the Amounts Shown in Each Budget as Expenditures, Amending the Several Items of Revenue Anticipations, Prohibiting Expenditures to Exceed Appropriations, and Prohibiting Expenditures to Exceed Actual Funding Available. (Agenda Item No. 16-034) (Stacey Inglis, Assistant City Manager) 8) PUBLIC HEARING ALCOHOL BEVERAGE LICENSE APPLICATION 1. Consideration of the Issuance of an Alcohol Beverage License to Moctezuma Mexican Grill Located at 13020 Morris Road, Suite A, Milton, Georgia 30004. The Applicant is Jose Guitron for Wine, Malt Beverages, and Distilled Spirits. (Agenda Item No. 16-035) (Stacey Inglis, Assistant City Manager) MILTON CITY COUNCIL REGULAR COUNCIL MEETING FEBRUARY 1 , 2016 Page 4 of 5 Persons needing special accommodations in order to participate in any City meeting should call 678-242-2500. 9) ZONING AGENDA (None) 10) UNFINISHED BUSINESS (None) 11) NEW BUSINESS 1. Consideration of a Grant Application to the Department of Homeland Security for the Assistance to Firefighters Grant Program Sponsored by FEMA. (Agenda Item No. 16-036) (Chief Robert Edgar) 2. Consideration to Hold a Conservation Easement for a Sending Site Property in the City’s TDR Program Located at 13235 Arnold Mill Road. (Agenda Item No. 16-037) (Ken Jarrard, City Attorney) 3. Consideration to Hold a Conservation Easement for a Sending Site Property in the City’s TDR Program Located at 13265 Bethany Road. (Agenda Item No. 16-038) (Ken Jarrard, City Attorney) 4. Consideration of an Application for the Abandonment of a Portion of Congaree Court. (Agenda Item No. 16-039) (Carter Lucas, Assistant City Manager) 5. Consideration of a Construction Management at Risk Agreement between the City of Milton and New South Construction, Inc. (Agenda Item No. 16-040) (Carter Lucas, Assistant City Manager) 6. Consideration of a Component Change Order Number 1 between the City of Milton and New South Construction, Inc. (Agenda Item No. 16-041) (Carter Lucas, Assistant City Manager) MILTON CITY COUNCIL REGULAR COUNCIL MEETING FEBRUARY 1 , 2016 Page 5 of 5 Persons needing special accommodations in order to participate in any City meeting should call 678-242-2500. 12) MAYOR AND COUNCIL REPORTS 13) STAFF REPORTS Department Updates 1. Police 2. Public Works 3. Parks and Recreation 4. Community Development 5. Economic Development 6. Fulton County TSPLOST 14) EXECUTIVE SESSION (if needed) 15) ADJOURNMENT (Agenda Item No. 16-042) The minutes were provided electronically HOME OF ' n r ESTABLISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: January 21, 2016 FROM: City Manager AGENDA ITEM: Approval of the Financial Statements for the Period Ending December, 2015. MEETING DATE: Monday, February 1, 2016 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: APPROVED (J NOT APPROVED CITY ATTORNEY APPROVAL REQUIRED: (J YES NO CITY ATTORNEY REVIEW REQUIRED: (J YES NO APPROVAL BY CITY ATTORNEY () APPROVED () NOT APPROVED PLACED ON AGENDA FOR: D Z b I t REMARKS ff] 10 YOU= * * * PHONE: 678.242.25001 FAX: 678.242.2499 G : Cm fr,+ : Top7Q0 G�c�� ❑ ni,+�f Ers r infoityofmiltonga.us 1 www.cityofmiltonga.us Community ii hi 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 To: Honorable Mayor and City Council Members From: Bernadette Harvill, Finance Manager Date: Submitted on January 25, 2016 for the February 1, 2016 Regular Council Meeting Agenda Item: Financial Statements for Period 3 –December 2015 Overview and Financial Highlights: General Fund Revenue collections for the General Fund are 5.38% over what is anticipated for the third period of the fiscal year. Total expenditures to-date are $7,822,340 and are 1.94% less than expected for this period of the fiscal year. Capital Project Fund Expenditures within this fund continue to occur on a project-by-project basis. With a total project expenditure budget of $15,669,564, capital expenditures-to-date total $861,901. City of Milton STATEMENT OF REVENUES & EXPENDITURES General Fund For the Period Ending December 2015 Actual Budgeted Variance over/(under)Actual Budgeted Variance over/(under) Property Tax 9,902,000 128,726 123,200 5,526 128,788 123,411 5,377 Motor Vehicle Tax 975,000 73,579 81,250 (7,671) 151,893 162,500 (10,607) Intangible Tax 200,000 14,900 16,667 (1,767) 37,918 33,333 4,585 Real Estate Transfer Tax 85,000 3,755 7,083 (3,328) 14,397 14,167 230 Franchise Fees 1,900,000 73,741 - 73,741 73,741 - 73,741 Local Option Sales Tax 8,300,000 706,565 691,667 14,898 1,390,145 1,383,333 6,811 Alcohol Beverage Excise Tax 295,000 24,294 24,583 (290) 49,429 49,167 262 Business & Occupation Tax 650,000 56,141 19,500 36,641 57,360 19,500 37,860 Insurance Premium Tax 1,800,000 - - - - - - Financial Institution Tax 39,000 - - - - - - Penalties & Interest 32,300 3,628 2,692 936 9,433 8,075 1,358 Alcohol Beverage Licenses 145,000 5,105 7,250 (2,145) 131,400 137,750 (6,350) Other Non-Business Permits/Licenses 16,800 930 1,400 (471) 4,567 4,175 392 Zoning & Land Disturbance Permits 217,100 1,175 18,092 (16,917) 41,802 54,275 (12,473) Building Permits 480,000 39,990 40,000 (11) 138,517 120,000 18,517 Intergovernmental Revenue - - - - - - - Other Charges for Service 600,000 53,352 58,612 (5,260) 120,213 129,287 (9,074) Municipal Court Fines 550,000 30,728 45,833 (15,106) 139,795 137,500 2,295 Interest Earnings 20,450 3,602 1,704 1,897 9,452 5,113 4,340 Contributions & Donations - - - - 493 - 493 Other Revenue 47,628 9,870 350 9,520 23,009 11,907 11,102 Other Financing Sources 38,000 - - - - - - Total Revenues 26,293,278 1,230,078 1,139,883 90,196 2,522,352 2,393,493 128,859 Actual Budgeted Variance over/(under)Actual Budgeted Variance over/(under) Mayor and Council 171,375 9,382 9,710 (328) 45,305 44,474 831 City Clerk 193,574 13,232 13,667 (435) 40,204 45,589 (5,385) City Manager 705,273 56,135 59,362 (3,228) 179,772 174,064 5,708 General Administration 43,557 2,805 3,388 (583) 6,644 13,064 (6,420) Finance 427,877 29,749 31,330 (1,581) 107,198 105,710 1,488 Legal 230,000 750 19,167 (18,417) 44,388 38,333 6,055 Information Technology 863,103 71,494 56,307 15,187 239,143 260,548 (21,406) Human Resources 341,602 16,334 21,282 (4,948) 58,781 66,099 (7,318) Risk Management 216,328 - - - 127,256 127,256 - General Government Buildings 396,421 32,202 33,035 (833) 96,642 99,105 (2,463) Public Information & Marketing 309,345 16,255 26,622 (10,367) 64,494 74,089 (9,595) Municipal Court 335,708 20,862 25,964 (5,102) 68,053 80,388 (12,334) Police 4,202,095 294,926 315,393 (20,467) 924,782 962,911 (38,130) Fire 5,997,260 409,180 452,871 (43,691) 1,532,261 1,559,229 (26,968) Public Works 2,029,695 153,511 161,430 (7,919) 436,358 440,280 (3,922) Parks & Recreation 1,509,405 473,889 479,148 (5,259) 521,934 542,623 (20,689) Community Development 688,885 51,946 57,805 (5,859) 153,574 166,065 (12,491) Economic Development 78,588 8,944 9,634 (691) 34,342 36,124 (1,782) Debt Service - Capital Lease Payment - - - - - - - Operating Transfers to Other Funds 12,564,834 1,047,070 1,047,070 - 3,141,209 3,141,209 - Operating Reserve 187,401 - - - - - - Total expenditures 31,492,326 2,708,664 2,823,185 (114,521) 7,822,340 7,977,162 (154,822) Net Income/(Loss)(5,199,048) (1,478,586)(5,299,988) Revenues Annual Budget Current Month Year-to-Date Operating Expenditures Annual Budget Current Month Year-to-Date 2 Original Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Earth Day Vendor Fee 2,000$ -$ -$ (2,000)$ Hometown Jubilee Vendor Fee 1,000 - - (1,000) Interest Revenues - 1 2 2 Crabapple Fest Sponsor 15,000 1,000 1,000 (14,000) Earth Day Sponsor 4,500 - - (4,500) Concert Sponsor - - - - Mayor's Run Sponsor 1,000 - - (1,000) Donations/Better World Books - - - - T-shirt Sales - - - - Mayor's Run Reg. Fees - - - - Roundup Food Sales - - - - Total revenues 23,500$ 1,001$ 1,002$ (22,498)$ EXPENDITURES Current: Special Events 79,640$ 6,682$ 28,285$ 51,355$ Total Expenditures 79,640$ 6,682$ 28,285$ 51,355$ OTHER FINANCING SOURCES (USES) Transfers in from Hotel/Motel Tax Fund 47,000$ 3,080$ 9,833$ (37,167)$ Total other financing sources and uses 47,000$ 3,080$ 9,833$ (37,167)$ Net change in fund balances (9,140)$ (17,450)$ City of Milton Special Events Fund Statement of Revenues, Expenditures, and Changes in Fund Balances - Budget and Actual For the Period Ended December 31, 2015 3 Original Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Cash Confiscations/State Funds -$ -$ -$ -$ Cash Confiscations/Fed Funds/US Marshal - - - - Cash Confiscations/Federal Funds - 1,124 37,596 37,596 Interest Revenues/State Funds - 2 5 5 Interest Revenues/Federal Funds - 6 18 18 Realized Gain on Investments/State Funds - - - - Budgeted Fund Balance - - - - Total revenues -$ 1,132$ 37,619$ 37,619$ EXPENDITURES Current: Police -$ -$ 2,894$ (2,894)$ Total Expenditures -$ -$ 2,894$ (2,894)$ OTHER FINANCING SOURCES (USES) Transfers in from General Fund -$ -$ -$ -$ Total other financing sources and uses -$ -$ -$ -$ Net change in fund balances -$ 34,725$ City of Milton Confiscated Assets Fund Statement of Revenues, Expenditures, and Changes in Fund Balances - Budget and Actual For the Period Ended December 31, 2015 4 Original Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Wireless 911 Fees 890,000$ 37,015$ 73,271$ (816,729)$ Interest Revenue - 16 33 33 Total revenues 890,000$ 37,031$ 73,304$ (816,696)$ EXPENDITURES Current: Public Safety 909,080$ 1,589$ 4,766$ 904,314$ Total Expenditures 909,080$ 1,589$ 4,766$ 904,314$ OTHER FINANCING USES Unallocated -$ -$ -$ -$ Total other financing sources and uses 300,000$ -$ -$ -$ Net change in fund balances (319,080)$ 68,538$ City of Milton E-911 Fund Statement of Revenues, Expenditures, and Changes in Fund Balances - Budget and Actual For the Period Ended December 31, 2015 5 Original Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Taxes Hotel/Motel Taxes 67,000$ 3,080$ 9,833$ (57,167)$ Total revenues 67,000$ 3,080$ 9,833$ (57,167)$ OTHER FINANCING SOURCES/(USES) Transfers out to General Fund 20,000$ -$ -$ (20,000)$ Transfers out to Special Events Fund 47,000 3,080 9,833 (37,167) Total other financing sources and uses 67,000$ 3,080$ 9,833$ (57,167)$ Net change in fund balances - - City of Milton Hotel/Motel Tax Fund Statement of Revenues, Expenditures, and Changes in Fund Balances - Budget and Actual For the Period Ended December 31, 2015 6 Original Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Charges for Service Infrastructure Maintenance Fee 90,000$ -$ -$ (90,000)$ Sidewalk Replacement Account - - - - Crabapple Paving Fee - - - - Traffic Calming - - - - Tree Recompense - - - - Landfill Host Fees 120,000 - (120,000) HYA Fees - - - Interest Revenue 500 - 76 (424) Realized Gain or Loss on Investments - - - - Insurance Proceeds/Public Safety - - - - Insurance Proceeds/Public Works - - - - Insurance Proceeds/Parks & Recreation - 14,399 14,399 14,399 Atlanta HIDTA Stipend - - - - Capital Lease Proceeds - - - - Total revenues 210,500 14,399$ 14,475$ (196,025)$ EXPENDITURES Capital Outlay City Council 710,069$ -$ -$ 710,069$ General Admin 13,762 - - 13,762 Finance - - - - IT - - - - Court 100,000 - - 100,000 Police 1,079,618 - - 1,079,618 Fire 2,549,248 54,102 130,646 2,418,602 Public Works 8,651,450 36,314 718,475 7,932,975 Parks & Recreation 2,318,210 - 12,780 2,305,430 Community Development 247,207 - - 247,207 Total Capital Outlay 15,669,564$ 90,416$ 861,901$ 14,807,663$ Excess of revenues over expenditures (15,459,064) (76,017) (847,427) (15,003,688) OTHER FINANCING SOURCES/(USES) Transfers in from General Fund 8,327,979$ 693,998$ 2,081,995$ (6,245,984)$ Transfers in from E-911 Fund 300,000$ (300,000)$ Unallocated - - - -$ Lease Proceeds - - - -$ Proceeds of Sale of Assets - - -$ Budgeted Fund Balance - - - - Total other financing sources and uses 8,627,979 693,998 2,081,995 (6,545,984) Net change in fund balances (6,831,085) 1,234,568 City of Milton Capital Project Fund Statement of Revenues, Expenditures, and Changes in Fund Balances - Budget and Actual For the Period Ended December 31, 2015 7 Original Budgeted Amounts Amended Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Intergovernmental Revenues GDOT Crabapple Streetscape 500,000$ 500,000$ -$ -$ (500,000)$ GDOT TAP (Big Creek Greenway)146,732 146,732 - - (146,732) CDBG 20,500 20,500 7,400 16,850 (3,650) LMIG Funds 200,000 200,000 - - (200,000) GDOT HPP Funds 5,930,730 5,930,730 - - (5,930,730) MARTA Grant 74,650 74,650 - - (74,650) SR 9 @ Bethany Bend Grant 872 872 - - (872) GDOT-Signage/Landscaping 4,062 4,062 - - (4,062) Trail Connection to Big Creek Greenway - - - - - Interest Revenues - - 5 5 5 Total revenues 6,877,546$ 6,877,546$ 7,405$ 16,855$ (6,860,691)$ EXPENDITURES Capital Outlay Unallocated -$ Public Safety - Public Works 6,212,525$ 6,212,525$ 18,828$ 444,419$ 5,768,106$ Community Development 4,900 4,900 - - 4,900 Total Capital Outlay 6,217,425$ 6,217,425$ 18,828$ 444,419$ 5,773,006$ Excess of revenues over expenditures 660,121 660,121 (11,423) (427,564) (1,087,685) OTHER FINANCING SOURCES (USES) Transfers in from General Fund 1,411,202$ 1,411,202$ 117,600$ 352,801$ (1,058,401)$ Transfers in to General Fund - - -$ -$ -$ Budgeted Fund Balance - - - - - Total other financing sources and uses 1,411,202$ 1,411,202$ 117,600$ 352,801$ (1,058,401)$ Net change in fund balances 2,071,323 2,071,323 (74,763) City of Milton Capital Grant Fund Statement of Revenues, Expenditures, and Changes in Fund Balances - Budget and Actual For the Period Ended December 31, 2015 8 Original Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Admin Fund -$ 2,256$ 2,920$ 2,920$ Law Enforcement Fund - 1,612.62 2,086.92 2,086.92 Fire Fund - 9,240.69 11,958.54 11,958.54 Road Fund - 11,532.12 14,923.92 14,923.92 Park Fund - 52,828.35 68,366.10 68,366.10 Interest Revenues - 4.90 5.67 5.67 Total revenues -$ 77,475$ 100,261$ 100,261$ EXPENDITURES Admin Police Fire Public Works Parks & Recreation Total Capital Outlay -$ -$ -$ -$ Excess of revenues over expenditures - 77,475 100,261 100,261 OTHER FINANCING SOURCES (USES) Transfers in from General Fund -$ -$ -$ Total other financing sources and uses -$ -$ -$ -$ Net change in fund balances - 100,261 City of Milton Capital Projects Fund - Impact Fees Statement of Revenues, Expenditures, and Changes in Fund Balances - Budget and Actual For the Period Ended December 31, 2015 9 Original Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Intergovernmental Revenues Interest Revenues 199.90 474.43 474.43 Contributions & Donations - - - - Total revenues -$ 200$ 474$ 474$ EXPENDITURES Capital Outlay General Government Buildings 9,935,171$ -$ 110,176$ 9,824,995$ Parks & Recreation 1,638,931 468,455 478,054 1,160,877 Bond Principal 589,878 - - 589,878 Bond Interest 276,256 - 30,486 245,770 Total Capital Outlay 12,440,236$ 468,455$ 618,716$ 11,821,520$ Excess of revenues over expenditures (12,440,236) (468,255) (618,242) 11,821,994 OTHER FINANCING SOURCES (USES) Transfers in from General Fund 2,825,653$ 235,471$ 706,413$ (2,119,240)$ Revenue Bond Proceeds 3,174,136 3,174,136 3,174,136 (0)$ Total other financing sources and uses 5,999,789$ 3,409,607$ 3,880,549$ (2,119,240)$ Net change in fund balances (6,440,447) 3,262,307 City of Milton Capital Projects Fund - Revenue Bond Statement of Revenues, Expenditures, and Changes in Fund Balances - Budget and Actual For the Period Ended December 31, 2015 10 HOME OF ` ESTABLISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: January 26, 2016 FROM: City Manager AGENDA ITEM: Approval of a Revision to the Personnel Policy Handbook Regarding Discipline and Grievances MEETING DATE: Monday, February 1, 2016 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: K APPROVED (J NOT APPROVED CITY ATTORNEY APPROVAL REQUIRED: V YES () NO CITY ATTORNEY REVIEW REQUIRED: x YES () NO APPROVAL BY CITY ATTORNEY XAPPROVED () NOT APPROVED PLACED ON AGENDA FOR: OZo\1(o REMARKS ® You= PHONE: 678.242.25001 FAX: 678.242.2499 info@cityofmilfonga.us I www.cityofmilfonga.us 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 '.,. -..Green ; Cert;f,� ; ,'RJ00 Community 9 E�h;cf & WE To: Honorable Mayor and City Council Members From: Sam Trager, Director of Human Resources Date: Submitted on January 26, 2016 for the February 1, 2016 Regular Council Meeting Agenda Item: Approval of a Revision to the Personnel Policy Handbook Regarding Discipline and Grievances ____________________________________________________________________________ Department Recommendation: Approve the attached revision to the City’s Personnel Policy Handbook that amends our Employee Relations Chapter, page 13. Executive Summary: The proposed change will allow the City Manager to appoint a designee to hear appeals and grievance. This is important with the appointment of Chief Krokoff as Interim City Manager to preserve the appeal rights of police departmental staff. Funding and Fiscal Impact: No cost. Alternatives: Other Council directed action. Legal Review: Megan Martin, Esq. – Jarrard & Davis (1/25/2016) Concurrent Review: Chris Lagerbloom, City Manager Attachment(s): Personnel Policy Handbook; Chapter III, Employee Relations, Section B, Discipline and Section C, Grievances. __________________________________________________________________________________________ Employee Relations Chapter Page 1 Discipline A. DISCIPLINE Section 1: Policy Statement The City of Milton believes that each employee wants to provide quality public service by meeting high standards of job performance and conduct and by following established policies, procedures, regulations, and practices. The primary purpose of disciplinary action is to correct or prevent the recurrence of employee performance or conduct that is detrimental to quality job performance or the interest of the citizenry, the employee, the City or other employees. The City’s discipline policies emphasize the employee’s responsibility for the consequences of their own behavior with a focus on communicating expectations for changes in behavior and needed improvement. When an employee’s conduct results in deficiencies in job performance or violations of law, City regulations or rules, it is the policy of the City to take appropriate action to improve and/or correct the conduct or performance or, if necessary, remove the employee from the City workforces through application of the standardized disciplinary options and procedures in this chapter. Section 2: General Provisions (a) Level of Discipline Disciplinary action will be consistent with the nature of the deficiency or infraction involved and with other relevant factors. In reaching a decision as to the level of discipline to be applied, the supervisor should consider such factors as the type and severity of the infraction, the results of the infraction, the employee’s work record, prior disciplinary actions, and any mitigating circumstances which may be relevant to the situation. (b) Format & Location of Actions All disciplinary action should be documented in writing. All appeals by employees must be in writing. All responses to, and decisions on, appeals must be in writing. (c) Progressive Discipline While it is expected that disciplinary action options be exercised progressively, the nature of the deficiency or violation in any particular situation may preclude the exercise of a less severe discipline option. Typical disciplinary actions may include oral or written warning, suspensions (with or without pay), training and termination. (d) Suspension of Exempt Employees __________________________________________________________________________________________ Employee Relations Chapter Page 2 Discipline Except in the case of a major safety violation, any suspension of an exempt employee must be made in full week increments only. Major safety violation suspensions may be made in full day increments. (e) Disciplinary Options Only Department Heads are authorized to demote or terminate employees with the authority delegated by the City Manager. The department head or a designee may suspend employees. STEP USE RESPONSE / APPEAL Counseling An informal discussion between a supervisor and employee about the need to improve minor performance problems or as a reminder about violation of a minor rule that does not threaten the safety or the employee or others, or that does not involve honesty. Documents kept in the department No appeal Oral Reprimand An oral warning/instruction from the supervisor to the employee about the need to improve performance deficiencies or about violation of a rule that does not threaten the safety or the employee or others, or that does not involve honesty. Documents kept in the department No appeal Written Reprimand A written warning/admonishment from the supervisor to the employee about the need to improve performance or about a rule violation. Documents kept in Human Resources Employee has five days to appeal to the Department Director or through the chain of command to the next level supervisor. Appeal does not go beyond the next level of supervision of the supervisor issuing the appeal. Suspension Relief from duty for a specified amount of time. Requires coordination with Human Resources and the City Attorney. Documents kept in Human Resources Employee has five days to appeal to the Department Director. After the Department Director’s decision, the employee has five day to appeal to the City Manager (or his/her designee). The final decision rests with the City Manager (or his/her designee). . Formatted: Not Highlight Formatted: Not Highlight __________________________________________________________________________________________ Employee Relations Chapter Page 3 Discipline Demotion Reduction in rank or classification consistent with deficiency of the violation. This is not an option for probationary employees. Requires coordination with Human Resources and the City Attorney. Documents kept in Human Resources Employee has five days to appeal to the Department Director. After the Department Director’s decision, the employee has five days to appeal to the City Manager (or his/her designee). The final decision rests with the City Manager (or his/her designee). Dismissal Involuntary separation of employee from City employment. Requires coordination with Human Resources and the City Attorney. Documents kept in Human Resources Employee has five days to appeal to the Department Director. After the Department Director’s decision, the employee has five days to appeal to the City Manager (or his/her designee). The final decision rests with the City Manager (or his/her designee). Probationary employees do not have appeal rights to dismissal. Formatted: Not Highlight Formatted: Not Highlight Formatted: Not Highlight Formatted: Not Highlight __________________________________________________________________________________________ Employee Relations Chapter Page 4 Grievances B. GRIEVANCES Section 1: Policy Statement The City of Milton is committed to providing the best possible working conditions for its employees. Part of this commitment is encouraging an open and frank atmosphere in which any problem, complaint, or question receives a timely response. The City str ives to ensure fair and honest treatment of all employees. Supervisors, managers, and employees are expected to treat each other with mutual respect and are encouraged to offer positive and constructive criticism. If employees disagree with established rules of conduct, policies, or practice, they may express their concern through a grievance process. No employee shall be penalized, formally or informally, for voicing a complaint in a reasonable, professional manner using the grievance process. While a formal grievance process is in place, employees are encouraged to first informally discuss any issue with their immediate supervisor. Section 2: General Provisions (a) Scope The grievance procedure provides an avenue for any eligible employee to obtain management review of work-related issues that are felt to adversely affect the employee, for which no other means of response, review, appeal or resolution for is provided in this handbook. Grounds for submission of a grievance include: 1. Unfair application, interpretation or violation of City or department regulations; 2. Acts of retaliation as a result of utilization of the grievance process. (b) Statement of Grievance At each step in the process, the written grievance must include the following: 1. A statement of the grievance and the facts upon which it is based; 2. A description of the specific wrongful act and harm done to the grieving employee, and 3. A statement of the remedy or adjustment sought. __________________________________________________________________________________________ Employee Relations Chapter Page 5 Grievances Section 3: Grievance Steps (a) Step One – Department Director . The employee should first seek to resolve the issue informally. If unable to do so, the employee should file a written grievance to the Director of Human Resources and the Department Director within five working days of the incident or when the employee became knowledgeable of the incident. The Department Director will attempt to resolve the matter and submit a written response to the employee within five working days after receipt. Note: In public safety departments, it is expected that grievances follow the chain of command. Under no circumstances will a grievance be allowed to extend beyond 25 business days. (b) Step Two – City Manager . If the Department Director is unable to resolve the grievance or the response is unacceptable to the employee, the employee must within five (5) working days of receiving the response, present the written grievance to the City Manager or Human Resources Director. Within ten (10) days of receipt of the grievance, the City Manager or their his/her designee will investigate the grievance and respond in writing to the employee. The City Manager’s or his/her designee’s decision is final. Section 4: Areas Not Grievable The following areas are NOT grievable: (a) Issues which are pending or which have been concluded by other administrative or judicial procedures; (b) Management’s rights to assign work and/or establish work processes; (c) Budget allocations and expectations and organizational structure, including the persons or number of persons assigned to particular jobs or units; (d) The content or rating of a performance evaluation; (e) The selection of an individual by the Department Head or City Manager to fill a position through appointment, promotion, or transfer, except when the employee can show adverse effect because of unlawful discrimination; (f) Any matter which is not within the jurisdiction or control of the City; (g) Internal security practices established by the City Manager and/or City Council; and __________________________________________________________________________________________ Employee Relations Chapter Page 6 Grievances (h) Decisions, practices, resolutions or policies made or passed by the City Council or City Manager. __________________________________________________________________________________________ Employee Relations Chapter Page 7 Grievances N HOME OF ' ESTABLISHED 200E CITY COUNCIL AGENDA ITEM TO: City Council DATE: January 26, 2016 FROM: City Manager AGENDA ITEM: Approval of a Contract with Pontifex Consulting Group to Provide Professional Consulting Services MEETING DATE: Monday, February 1, 2016 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: K APPROVED CITY ATTORNEY APPROVAL REQUIRED: K YES CITY ATTORNEY REVIEW REQUIRED: k YES APPROVAL BY CITY ATTORNEY PLACED ON AGENDA FOR REMARKS VAPPROVED O2oI1w (J NOT APPROVED (JNO (J NO (J NOT APPROVED ® You(M,r PHONE: 678.242.25001 FAX: 678.242.2499 f 't info@cityofmiltonga.us I www.cityofmiltonga.us ���� Community 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 �,a<< To: Honorable Mayor and City Council Members From: Sam Trager, Director of Human Resources Date: Submitted on January 26, 2016 for the February 1, 2016 Regular Council Meeting Agenda Item: Approval of a Contract with Pontifex Consulting Group to Provide Professional Consulting Services ____________________________________________________________________________ Department Recommendation: Approve a contract with Pontifex Consulting Group to provide compensation and classification consulting services and conduct a salary survey. Executive Summary: Following a bid process, the department recommends allowing Pontifex to perform services associated with a pay and classification study that include: Conduct a comprehensive compensation system review and assess the effectiveness of the City’s current pay structure and pay practices. Review the effectiveness of the existing job evaluation system in delivering desired results, and recommend alternatives/options for the alignment of positions (job worth hierarchy) within the City. Propose a methodology to determine relative market position of the City’s employee compensation and benefits for City job classifications and employee groups to equitably align with the compensation and benefits packages provided for similar work in other municipalities, equivalent government entities, and private employers. Develop recommendations and an implementation plan based on results of the survey. Contract for Compensation and Classification Services Page 2 of 2 Funding and Fiscal Impact: The cost for the proposed contract to complete this project is $18,700. The FY ’16 budget for this project is $20,000. Alternatives: Other Council directed action. Legal Review: Sam Van Volkenburgh – Jarrard & Davis, January 20, 2016 Concurrent Review: Chris Lagerbloom, City Manager Attachment(s): Contract 1 AGREEMENT between THE CITY OF MILTON, GEORGIA and PONTIFEX CONSULTING GROUP LLC for the furnishing of PROFESSIONAL CONSULTING SERVICES for the 2016 COMPENSATION & CLASSIFICATION STUDY ______________________________________________________________________________ This agreement (hereinafter referred to as the “Agreement”) is made and entered into by and between the City of Milton, Georgia (hereinafter referred to as the “City”) and the Pontifex Consulting Group LLC (hereinafter referred to as the “Consultant”) for professional consulting services for the Compensation & Classification Study (hereinafter referred to as the “Project”) in Milton, Georgia. In consideration of these premises and of the mutual covenants hereinafter set forth, the City and the Consultant agree as follows: A. CONSULTING SERVICES. The Consultant shall perform the following services (hereinafter referred to as the “Consulting Services”): 1. Phase 1 a. The Consultant shall conduct a comprehensive compensation system review and assess the effectiveness of the City’s current pay structure and pay practices in satisfying the City’s desired objectives. b. The Consultant shall review the effectiveness of the existing job evaluation system in delivering desired results, and recommend alternatives/options for the alignment of positions (job worth hierarchy) within the City. c. The Consultant shall propose a methodology to determine relative market position of the City’s employee compensation and benefits for City job classifications and employee groups to equitably align with the compensation and benefits packages provided for similar work in other municipalities, equivalent government entities, and private employers. 2 d. The Consultant shall assist in the identification of appropriate labor market comparators, survey sources, benchmark positions and unique competitive market challenges for the City. e. The Consultant shall engage in a stakeholder involvement and communications process, with informational and instructional documents for targeted City stakeholder groups (i.e. City management, elected officials, employees). f. The Consultant shall develop recommendations and an implementation plan, which recommendations and implementation plan shall be presented by the Consultant for City authorization to proceed into Phase 2. 2. Phase 2 a. The Consultant shall assist in the implementation of the action plan and resulting recommendations, as adopted and approved by the City. The Consultant shall assess the total rewards package (relative competitiveness of the city’s pay and benefits). b. The Consultant shall conduct a comprehensive market pricing of City benchmark job classifications and a recalibration of pay ranges. c. The Consultant shall compile a written report and analysis of the resulting total rewards comparability review results. 3. Phase 3 a. The Consultant shall advise upon and implement any recommended changes to the job evaluation system and the methodology for determining the relative value of jobs within the organization. b. The Consultant shall work with City staff to review and revise job documentation. c. The Consultant shall assist in the preparation of any revised job documentation/job descriptions, as needed; and ensure compliance with the requirements of the ADA, FLSA and other federal and state requirements. d. The Consultant shall use the selected job evaluation system and methodology to evaluate and rank all City positions. e. The Consultant shall advise the City on the creation of a pay strategy and prepare a written compensation policy document and pay practice guidelines for the City to use going forward. f. The Consultant shall compile a written summary report with any further recommendations, options or corrective actions for improvement in each of the areas identified in the Project g. The Consultant shall develop recommendations to achieve and maintain a total compensation system that supports the City’s mission and strategic objectives, and is designed to support a competitive, flexible, customer and results-oriented organization. B. TIMING AND COMMENCEMENT OF WORK. 3 1. This Agreement shall become effective only after an appropriation therefor has been made. The City will notify the Consultant when appropriation has been made, at which time work on the Consulting Services shall immediately begin. 2. Consultant understands that time is of the essence of this Agreement and warrants that it will perform the work in a prompt manner. Consultant shall fully complete the Consulting Services within three months following receipt of notice that this Agreement has become effective. 3. If the term of this Agreement covers more than one calendar year, the Parties agree that this Agreement, as required by O.C.G.A. § 36-60-13, shall terminate absolutely and without further obligation on the part of the City on December 31 each calendar year of the term, and further, that this Agreement shall automatically renew on January 1 of each subsequent calendar year of the term, absent the City’s provision of written notice of non- renewal to Consultant at least five (5) days prior to the end of the then current calendar year. Title to any supplies, materials, equipment, or other personal property shall remain in Consultant until fully paid for by the City. C. THE CONSULTANT AGREES: 1. Any reports and/or recommendations prepared by the Consultant shall be submitted to Sam Trager, Human Resources Director, City of Milton, 13000 Deerfield Parkway, Milton, Georgia, 30004. 2. Additional services beyond the scope of the Consulting Services, requested in writing by the City, shall be performed by the Consultant in accordance with the hourly rates attached hereto marked as Exhibit “A” and made a part hereof. 3. To the fullest extent permitted by law, the Consultant shall indemnify and hold harmless the City, its officials, employees and volunteers against all injuries, deaths, loss, damages, claims, suits, liabilities, judgments, cost and expenses, which may in any way accrue against the City, its officials, employees and volunteers, arising in whole or in part in consequence of the performance of the Consulting Services by the Consultant, its employees, or subcontractors, or which may in any way result therefor, except that arising solely out of the negligence or willful act of the City, its officials, employees and volunteers. If any judgment shall be rendered against the City, its officials, agents, employees and volunteers, in any such action the Consultant shall, at its own expense, satisfy and discharge the same. 4. Notwithstanding any other provision of this Agreement, nothing contained in this Agreement shall require the Consultant to indemnify or hold harmless another person from that person's own negligent acts or omissions. 5. [Reserved] 4 6. The Consultant further represents and warrants to the City that the Consultant and its principals, shareholders, members, partners, or affiliates, as applicable, are not, directly or indirectly, engaged in, and are not facilitating, the transactions contemplated by this Agreement on behalf of any person or entity named as a Speciall y Designated National and Blocked Person. The Consultant hereby agrees to defend, indemnify and hold harmless the City, the Corporate Authorities, and all City elected or appointed officials, officers, employees, agents, representatives, Consultants, and attorneys, from and against any and all claims, damages, losses, risks, liabilities, and expenses (including reasonable attorneys' fees and costs) arising from and related to any breach of the foregoing representations and warranties. 7. The Consultant shall comply with all applicable federal and Georgia statutes, and local ordinances of the City and shall operate within and uphold the ordinances, rules and regulations of the City while engaged in services herein described. 8. The City reserves the right by written change order or amendment to make changes in the requirements and the amounts of work, and the Consultant and the City shall negotiate appropriate adjustments acceptable to both parties to accommodate such changes. All change orders or amendments shall be invalid unless compliant with the requirements of the City of Milton Purchasing Policy (Milton Ordinances 2-619 et seq.). 9. This Agreement may be terminated for convenience by the City upon thirty (30) days’ written notice to the Consultant, at its last known post office address, provided that, should this Agreement be terminated by the City, the Consultant shall be paid for any services completed and any services partially completed. 10. This Agreement may be immediately terminated by the City upon written notice to the Consultant, at its last known post office address, upon the occurrence of any one or more of the following events, without cause and without prejudice to any other right or remedy: a. If the Consultant commences a voluntary case under any chapter of the Bankruptcy Code (Title 11, United States Code), as now or hereinafter in effect, or if the Consultant takes any equivalent or similar action by filing a petition or otherwise under any other federal or state law in effect at such time relating to bankruptcy or insolvency; b. If a petition is filed against the Consultant under any chapter of the Bankruptcy Code as now or hereafter in effect at the time of filing, or if a petition is filed seeking any such equivalent or similar relief against the Consultant under any other federal or state law in effect at the time relating to bankruptcy or insolvency; c. If the Consultant makes a general assignment for the benefit of creditors; d. If a trustee, receiver, custodian or agent of the Consultant is appointed under applicable law or under contract, whose appointment or authority to take charge of property of the Consultant is for the purpose of enforcing a lien against such property or for the purpose of general administration of such property for the benefit of the Consultant's creditors; e. If the Consultant admits in writing an inability to pay its debts generally as they become due. 5 11. Upon termination of this Agreement, all records and reports completed or partially completed at the time of termination shall become the property of, and be made available to, the City. Within five (5) days after notification and request, the Consultant shall deliver to the City all property, books and effects of every description in its possession belonging to the City and pertaining to the Project. 12. The Consultant is qualified technically and is conversant with the policies applicable to the performance of the Consulting Services; and sufficient, properly trained, and experienced personnel will be retained to perform the services enumerated herein. 13. The Consultant will maintain all books, documents, papers, accounting records, and other evidence pertaining to its costs incurred and to make such materials available at the Consultant's office at all reasonable times during the Agreement period and retain such records for a period of three (3) years from the date of final payment under this Agreement. 14. The Consultant warrants that it has not employed or retained any company or person, other than an employee working solely for the Consultant, to secure this Agreement, and that it has not paid or agreed to pay any company or person any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the City shall have the right to annul this Agreement without liability, or, in its discretion to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gifts, or contingent fee. 15. This Agreement shall be deemed to be exclusive between the City and the Consultant. This Agreement shall not be assigned by the Consultant without first obtaining permission in writing from the City. 16. All books, papers, notes, records, lists, data, files, forms, reports, accounts, documents, manuals, handbooks, instructions, computer programs, computer software, computer disks and diskettes, magnetic media, electronic files, printouts, backups, and computer databases created or modified by the Consultant relating in any manner to the Consulting Services or by anyone else and used by the Consultant in performance of the Consulting Services shall be a “work made for hire" as defined by the laws of the United States regarding copyrights (hereinafter defined as the “Work”). 17. The Consultant hereby assigns to the City and its successors and assigns all of its right, title, interest and ownership in the Work, including, but not limited to, copyrights, trademarks, patents, and trade secret rights, and the rights to secure any renewals, reissues, and extensions thereof. The Consultant grants permission to the City to register the copyright and other rights in the Work in the City's name. The Consultant shall give the City, or any other person designated by the City, all assistance reasonably necessary to perfect its rights under this Agreement and to sign such applications, documents, assignment forms and other papers as the City requests from time to time to further confirm this assignment. The Consultant further grants 6 to the City full, complete and exclusive ownership of the Work. The Consultant shall not use the Work for the benefit of anyone other than the City, without the City's prior written permission. Upon completion of the Work or other termination of this Agreement, the Consultant shall deliver to the City all copies of any and all materials relating or pertaining to this Agreement. 18. Consultant acknowledges that it may receive confidential information of the County and that it will protect the confidentiality of any such confidential information and will require any of its subcontractors, consultants, and/or staff to likewise protect such confidential information. Except as otherwise required by applicable law, the Consultant agrees that it will not, at any time, either directly or indirectly, disclose, use or communicate or attempt to disclose, use or communicate to any person, firm, or corporation any confidential information or any other information concerning the business, services, finances or operations of the City, except as expressly authorized by the City. The Consultant shall treat such information at all times as confidential. The Consultant acknowledges that, except to the extent certain disclosure may be required by law, each of the following can contain confidential information of the City, and that the disclosure of any of the following by the Consultant, without the City's express authorization, may be harmful and damaging to the City's interests: a. Compilations of resident names and addresses, resident lists, resident payment histories, resident information reports, any other resident information, computer programs, computer software, printouts, backups, computer disks and diskettes, and computer databases and which are not otherwise known to the public. b. All information relating to the Consulting Services being performed by the Consultant under this Agreement, regardless of its type or form and which are not otherwise known to the public. c. Ideas, concepts, designs and plans which are specifically involved with the Consulting Services being performed by the Consultant under this Agreement which are created, designed, enhanced by the Consultant and which are not otherwise known to the public. d. Financial information and police records. This itemization of confidential information is not exclusive; there may be other information that is included within this covenant of confidentiality. This information is confidential whether or not it is expressed on paper, disk, diskette, magnetic media, optical media, monitor, screen, or any other medium or form of expression. The phrase “directly or indirectly" includes, but is not limited to, acting through Consultant's wife, children, parents, brothers, sisters, or any other relatives, friends, partners, trustees, agents or associates. Consultant acknowledges that the County’s disclosure of documentation is governed by Georgia’s Open Records Act and agrees that this paragraph shall be construed in conformity with applicable law. 19. In the event of breach of the confidentiality provisions of this Agreement, it shall be conclusively presumed that irreparable injury would result to the City and there would be no adequate remedy at law. The City shall be entitled to obtain temporary and permanent injunctions, without bond and without proving damages, to enforce this Agreement. The City is entitled to damages for any breach of the injunction, including, but not limited to, compensatory, incidental, 7 consequential, exemplary and punitive damages. The confidentiality provisions of this Agreement survive the termination or performance of this Agreement. 20. Consultant shall procure insurance as set forth below. (1) Requirements: The Consultant shall have and maintain in full force and effect for the duration of this Agreement, insurance insuring against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work by the Consultant, its agents, representatives, employees or subcontractors. All policies shall be subject to approval by the City Attorney to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. (2) Minimum Limits of Insurance: Consultant shall maintain the following insurance policies with coverage and limits no less than: (a) Commercial General Liability coverage of at least $1,000,000 (one million dollars) combined single limit per occurrence and $2,000,000 (two million dollars) aggregate for comprehensive coverage including for bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting therefrom. (b) Commercial Automobile Liability (owned, non-owned, hired) coverage of at least $1,000,000 (one million dollars) combined single limit per occurrence for comprehensive coverage including bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting therefrom. (c) Professional Liability of at least $1,000,000 (one million dollars) limit for claims arising out of professional services and caused by the Consultant's errors, omissions, or negligent acts. (d) Workers' Compensation limits as required by the State of Georgia and Employers’ Liability limits of $1,000,000 (one million dollars) per occurrence or disease. (If Consultant is a sole proprietor, who is otherwise not entitled to coverage under Georgia’s Workers’ Compensation Act, Consultant must secure Workers’ Compensation coverage approved by both the State Board of Workers’ Compensation and the Commissioner of Insurance. The amount of such coverage shall be the same as what is otherwise required of employers entitled to coverage under the Wo rker’s Compensation Act. Further, the Consultant shall provide a certificate of insurance indicating that such coverage has been secured and that no individual has been excluded from coverage.) (3) Deductibles and Self-Insured Retentions: Any deductibles or self-insured retentions must be declared to and approved by the City in writing. 8 (4) Other Insurance Provisions: Each policy shall contain, or be endorsed to contain, the following provisions respectively: (a) General Liability and Automobile Liability. (i) Additional Insured Requirement. The City and the City’s elected and appointed officials, officers, boards, commissions, employees, representatives, contractors, servants, agents and volunteers (individually “Insured Party” and collectively “Insured Parties”) are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, leased, or used by the Consultant; automobiles owned, leased, hired, or borrowed by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to the Insured Parties. (ii) Primary Insurance Requirement. The Consultant's insurance coverage shall be primary noncontributing insurance as respects to any other insurance or self-insurance available to the Insured Parties. Any insurance or self- insurance maintained by the Insured Parties shall be in excess of the Consultant's insurance and shall not contribute with it. (iii) Reporting Requirement. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Insured Parties. (iv) Separate Coverage. Coverage shall state that the Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought. (v) Defense Costs/Cross Liability. Coverage shall be provided on a “pay on behalf” basis, with defense costs payable in addition to policy limits. There shall be no cross liability exclusion. (vi) Subrogation. The insurer shall agree to waive all rights of subrogation against the Insured Parties for losses arising from work performed by the Consultant for the City. (b) Workers' Compensation Coverage: The insurer providin g Workers’ Compensation Coverage will agree to waive all rights of subrogation against the Insured Parties for losses arising from work performed by the Consultant for the City. (c) All Coverages: (i) Notice Requirement. Each insurance policy required by this Agreement shall be endorsed to state that coverage shall not be suspended, voided, 9 or canceled except after thirty (30) days prior written notice (or 10 days if due to non-payment) has been given to the City. The City reserves the right to accept alternate notice terms and provisions, provided they meet the minimum requirements under Georgia law. (ii) Starting and Ending Dates. Policies shall have concurrent starting and ending dates. (5) Acceptability of Insurers: The insurance to be maintained by Consultant must be placed with insurers with an A.M. Best Policyholder’s rating of no less than “A-” and with a financial rating of Class VII or greater. (6) Verification of Coverage: Consultant shall furnish the City with certificates of insurance and endorsements to the policies evidencing all coverage required by this Agreement. The certificates of insurance and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf, unless alternate sufficient evidence of their validity and incorporation into the policy is provided. The certificates of insurance, endorsements and declarations page shall be furnished on a form utilized by Consultant's insurer in its normal course of business. The City reserves the right to require complete, certified copies of all required insurance policies at any time. The Consultant shall provide proof that any expiring coverage has been renewed or replaced prior to the expiration of the coverage. (7) Subcontractors: Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated in this Agreement, including, but not limited to, naming the Insured Parties as additional insureds. (8) Claims-Made Policies: Consultant shall extend any claims-made insurance policy for at least six (6) years after termination or final payment under the Agreem ent, whichever is later. (9) City as Additional Insured and Loss Payee: The City shall be named as an additional insured and loss payee on all policies required by this Agreement, except the City need not be named as an additional insured and loss payee on any Professional Liability policy or Workers' Compensation policy. (10) Progress Payments: The making of progress payments to the Consultant shall not be construed as relieving the Consultant or its subcontractors or insurance carriers from providing the coverage required in this Agreement. D. THE CITY AGREES: 1. The City shall provide full information regarding requirements for and about the Project. The Consultant will not provide professional legal, accounting or insurance services in connection with the Consulting Services. Where the Consultant indicates such professional 10 services would benefit the Project, the City may (but is not be required to) furnish and pay for such services. 2. After the Consultant indicates to the City the information needed for rendering of the Consulting Services, the City shall provide to the Consultant such information as is available to the City and the City's consultants and contractors, and the Consultant shall be entitled to rely upon the accuracy and completeness thereof. 3. For the performance by the Consultant of the services set forth above, the City shall pay the Consultant on the following basis of payment: a. Amount of Consultant's Fee. The Consultant shall receive, as full payment for completing all work required of the Consultant under this Agreement, a flat fee consisting of $18,700, as shown in Exhibit “A”. Except to the extent supplemental work is authorized as provided in this Agreement, the total compensation paid to the Consultant shall not exceed $18,700. b. Payment of Consultant's Fee. The City, for and in consideration of the rendering of the Consulting Services enumerated herein shall pay to the Consultant for rendering such services the fee hereinbefore established in the following manner: Upon receipt of statements from the Consultant and the approval thereof by the City, payments for the performance of the Consulting Services shall be due and payable to the Consultant within thirty (30) days after approval by the City. E. IT IS MUTUALLY AGREED: 1. The Consultant is an independent contractor in the performance of this Agreement, and it is understood that the parties have not entered into any joint venture or partnership with the other. The Consultant shall not be considered to be the agent of the City. Nothing contained in this Agreement shall create a contractual relationship with a cause of action in favor of a third party against either the City or Consultant. 2. Each party to this Agreement shall designate one or more persons to act with authority on its behalf with respect to appropriate aspects of the Project. The persons designated shall review and respond promptly to all communications received from the other party. 3. Written notices between the City and the Consultant shall be deemed sufficiently given after being placed in the United States mail, registered or certified, postage pre-paid, addressed to the appropriate party as follows: a. If to the City: City of Milton 13000 Deerfield Parkway Milton, Georgia 30004 11 Attn: City Manager b. If to the Consultant: Pontifex Consulting Group 1841 113th Avenue NE Blaine, MN 55449 Attn: Peter Ronza c. Either party may change its mailing address by giving written notice to the other party as provided above. Whenever this Agreement requires one party to give the other notice, such notice shall be given only in the form and to the addresses described in this paragraph. 4. This Agreement, including attached Exhibits “A”, “B” and “C,” represents the entire and integrated contract between the parties and supersedes all prior negotiations, representations or understandings, whether written or oral. This Agreement may only be amended by written instrument executed by authorized signatories of the City and the Consultant. To the extent that there may be any conflict among this Agreement and any exhibits hereto, the provision operating most to the benefit of the City shall govern. 5. The terms of this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. 6. The waiver of one party of any breach of this Agreement or the failure of one party to enforce at any time, or for any period of time, any of the provisions hereof, shall be limited to the particular instance, shall not operate or be deemed to waive any future breaches of this Agreement, and shall not be construed to be a waiver of any provision, except for the particular instance. 7. If any term, covenant, or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this contract shall not be affected thereby; and each term, covenant or condition of this Agreement shall be valid and shall be enforced to the fullest extent permitted by law. 8. This Agreement shall be construed under and governed by the laws of the State of Georgia. Any action or suit related to this Agreement shall be brought in the Superior Court of Fulton County, Georgia, and Consultant submits to the jurisdiction and venue of such court. 9. The Consultant covenants and declares that it has obtained all necessary approvals of its board of directors, stockholders, general partners, limited partners or similar authorities to simultaneously execute and bind Consultant to the terms of this Agreement, if applicable. 10. Pursuant to O.C.G.A. § 13-10-91, the City shall not enter into a contract for the physical performance of services unless: 12 (1) the Consultant shall provide evidence on City-provided forms, attached hereto as Exhibits “B” and “C” (affidavits regarding compliance with the E-Verify program to be sworn under oath under criminal penalty of false swearing pursuant to O.C.G.A. § 16-10-71), that it and Consultant’s subcontractors have registered with, are authorized to use and use the federal work authorization program commonly known as E-Verify, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A. § 13-10-91, and that they will continue to use the federal work authorization program throughout the contract period, or (2) the Consultant provides evidence that it is not required to provide an affidavit because it is an individual (not a company) licensed pursuant to Title 26 or Title 43 or by the State Bar of Georgia and is in good standing. The Consultant hereby verifies that it has, prior to executing this Agreement, executed a notarized affidavit, the form of which is provided in Exhibit “B”, and submitted such affidavit to City or provided the City with evidence that it is an individual not required to provide such an affidavit because it is licensed and in good standing as noted in subsection (2) above. Further, Consultant hereby agrees to comply with the requirements of the federal Immigration Reform and Control Act of 1986 (IRCA), P.L. 99-603, O.C.G.A. § 13-10-91 and Rule 300-10-1-.02. In the event the Consultant employs or contracts with any subcontractor(s) in connection with the covered contract, the Consultant agrees to secure from such subcontractor(s) attestation of the subcontractor’s compliance with O.C.G.A. § 13-10-91 and Rule 300-10-1-.02 by the subcontractor’s execution of the subcontractor affidavit, the form of which is attached hereto as Exhibit “C”, which subcontractor affidavit shall become part of the Consultant/subcontractor agreement, or evidence that the subcontractor is not required to provide such an affidavit because it is an individual licensed and in good standing as noted in subsection (2) above. If a subcontractor affidavit is obtained, Consultant agrees to provide a completed copy to the City within five (5) business days of receipt from any subcontractor. Where Consultant is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the City Manager or his/her designee shall be authorized to conduct an inspection of the Consultant’s and Consultant’s subcontractors’ verification process at any time to determine that the verification was correct and complete. The Consultant and Consultant’s subcontractors shall retain all documents and records of their respective verification process for a period of five (5) years following completion of the contract. Further, where Consultant is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the City Manager or his/her designee shall further be authorized to conduct periodic inspections to ensure that no City Consultant or Consultant’s subcontractors employ unauthorized aliens on City contracts. By entering into a contract with the City, the Consultant and Consultant’s subcontractors agree to cooperate with any such investigation by making their records and personnel available upon reasonable notice for inspection and questioning. Where a Consultant or Consultant’s subcontractors are found to have employed an unauthorized alien, the City Manager or his/her designee may report same to the Department of Homeland Security. The Consultant’s failure to cooperate with the investigation may be 13 sanctioned by termination of the contract, and the Consultant shall be liable for all damages and delays occasioned by the City thereby. Consultant agrees that the employee-number category designated below is applicable to the Consultant. [Information only required if a contractor affidavit is required pursuant to O.C.G.A. § 13-10-91.] ____ 500 or more employees. ____ 100 or more employees. ____ Fewer than 100 employees. Consultant hereby agrees that, in the event Consultant employs or contracts with any subcontractor(s) in connection with this Agreement and where the subcontractor is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the Consultant will secure from the subcontractor(s) such subcontractor(s’) indication of the above employee-number category that is applicable to the subcontractor. The above requirements shall be in addition to the requirements of State and federal law, and shall be construed to be in conformity with those laws. 11. In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and all other provisions of Federal law, the Consultant agrees that, during performance of this Agreement, Consultant , for itself, its assignees and successors in interest, will not discriminate against any employee or applicant for employment, any subcontractor, or any supplier because of race, color, creed, national origin, gender, age or disability. In addition, Consultant agrees to comply with all applicable implementing regulations and shall include the provisions of this section in every subcontract for services contemplated under this Agreement. 12. Consultant and City shall not engage in any activity or conduct that would result in a violation of the City of Milton Code of Ethics. Consultant and the City acknowledge that it is prohibited for any person to offer, give, or agree to give any City employee or official, or for any City employee or official to solicit, demand, accept, or agree to accept from another person, a gratuity of more than nominal value or rebate or an offer of employment in connect ion with any decision, approval, disapproval, recommendation, or preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to any program requirement or a contract or subcontract, or to any solicitation or proposal therefor. The Consultant and the City further acknowledge that it is prohibited for any payment, gratuity, or offer of employment to be made by or on behalf of a sub - consultant under a contract to the Consultant or higher tier sub-consultant, or any person associated 14 therewith, as an inducement for the award of a subcontract or order. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers as of the dates below indicated. [SIGNATURES ON THE FOLLOWING PAGE] 15 Executed by the City, this ____ day of _________ 2016. City of Milton 13000 Deerfield Parkway Milton, Georgia 30004 ATTEST: By _________________________________ Joe Lockwood, Mayor By ___________________________ Sudie Gordon, City Clerk Executed by the Consultant, this ____ day of ________ 2016. Pontifex Consulting Group, LLC 1841 113th Avenue NE Blaine, MN 55449 By ____________________________________ Print Name:______________________________ Member / Manager (circle one) ATTEST: By _____________________________ 16 Exhibit “A” Consultant’s Fee Total cost for the study is $18,700. All travel and out-of-pocket expenses to be incurred by the Consultant are included in this price. The following line item schedule summarizes the different study tasks costs: Project Initiation and On-site Presentations $ 2,000 Classification Analysis $ 8,700 Compensation Analysis $ 6,000 Summary Report & Presentations $ 2,000 TOTAL COST $ 18,700 The Consultant will invoice the City after the study tasks listed above have been completed and product accepted by the City. Payment is due to Consultant within thirty (30) days of the City approving each invoice for payment. An hourly rate of $200 will apply for any additional services performed. Additional services must be discussed and approved in writing by the City in advance. The proposal includes three (3) onsite visits: one during the project initiation stage, one upon presentation of draft recommendations and one at the final stage of the study to provide required presentations. The Consultant agrees to answer questions and provide implementation assistance at no additional cost pertaining to this study for at least twelve (12) months following the date of study completion to ensure that the system/products that we have provided are administered properly. EXHIBIT “B” STATE OF GEORGIA COUNTY OF _________________ CONTRACTOR AFFIDAVIT AND AGREEMENT By executing this affidavit, the undersigned contractor verifies its compliance with O.C.G.A. § 13 -10-91, stating affirmatively that the individual, firm, or corporation which is engaged in the physical performance of services on behalf of the City of Milton has registered with, is authorized to use and uses the federal work authorization program commonly known as E-Verify, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A. § 13-10-91. Furthermore, the undersigned contractor will continue to use the federal work authorization program throughout the contract period and the undersigned contractor will contract for the physical performance of services in satisfaction of such contract only with subcontractors who present an affidavit to the contractor with the information required by O.C.G.A. § 13 -10-91(b). Contractor hereby attests that its federal work authorization user identification number and date of authorization are as follows: _________________________________ Federal Work Authorization User Identification Number _________________________________ Date of Authorization _________________________________ Name of Contractor _________________________________ Name of Project City of Milton . Name of Public Employer I hereby declare under penalty of perjury that the foregoing is true and correct. Executed on ______, ___, 201__ in ___________________(city), ______(state). _________________________________ Signature of Authorized Officer or Agent _______________________________ Printed Name and Title of Authorized Officer or Agent SUBSCRIBED AND SWORN BEFORE ME ON THIS THE ______ DAY OF ______________,201__. _________________________________ NOTARY PUBLIC [NOTARY SEAL] My Commission Expires: _________________________________ EXHIBIT “C” STATE OF GEORGIA COUNTY OF __________________ SUBCONTRACTOR AFFIDAVIT By executing this affidavit, the undersigned subcontractor verifies its compliance with O.C.G.A. § 13 -10-91, stating affirmatively that the individual, firm or corporation which is engaged in the physical performance of services under a contract with _______________________ (name of contractor) on behalf of the City of Milton has registered with, is authorized to use and uses the federal work authorization program commonly known as E-Verify, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A. § 13 -10- 91. Furthermore, the undersigned subcontractor will continue to use the federal work authorization program throughout the contract period, and the undersigned subcontractor will contract for the physical performance of services in satisfaction of such contract only with sub -subcontractors who present an affidavit to the subcontractor with the information required by O.C.G.A. § 13 -10-91(b). Additionally, the undersigned subcontractor will forward notice of the receipt of an affidavit from a sub-subcontractor to the contractor within five (5) business days of receipt. If the undersigned subcontractor receives notice that a sub-subcontractor has received an affidavit from any other contracted sub-subcontractor, the undersigned subcontractor must forward, within five (5) business days of receipt, a copy of the notice to the contractor. Subcontractor hereby attests that its federal work authorization user identification number and date of authorization are as follows: _________________________________ Federal Work Authorization User Identification Number _________________________________ Date of Authorization _________________________________ Name of Subcontractor _________________________________ Name of Project City of Milton . Name of Public Employer I hereby declare under penalty of perjury that the foregoing is true and correct. Executed on ______, ___, 201__ in ___________________(city), ______(state). _________________________________ Signature of Authorized Officer or Agent _______________________________ Printed Name and Title of Authorized Officer or Agent SUBSCRIBED AND SWORN BEFORE ME ON THIS THE ______ DAY OF ______________,201__. _________________________________ NOTARY PUBLIC [NOTARY SEAL] My Commission Expires: _________________________________ HOME OF' ESTABLISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: January 26, 2016 FROM: City Manager AGENDA ITEM: Approval of a Furniture Design Consultant Agreement between the City of Milton and Office Images, Inc. MEETING DATE: Monday, February 1, 2016 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: APPROVED CITY ATTORNEY APPROVAL REQUIRED: K YES CITY ATTORNEY REVIEW REQUIRED: K YES APPROVAL BY CITY ATTORNEY KAPPROVED PLACED ON AGENDA FOR: �o z 01 k kco REMARKS () NOT APPROVED (JNO (JNO (J NOT APPROVED In You= _ _ * * * PHONE: 678.242.2500 FAX: 678.242.2499 Grefen +�` *CertifiedY` roPluo I � ' City of ` info@cityofmiltonga.us I www.cityofmiltonga.us 111111 E Community Ethics f 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 `' �."'''��pc To: Honorable Mayor and City Council Members From: Carter Lucas, PE - Public Works Director Date: Submitted on January 26th 2016 for the February 1st 2016 Regular Council Meeting Agenda Item: Approval of a Furniture Design Consultant Agreement between the City of Milton and Office Images, Inc. ______________________________________________________________________________ Department Recommendation: Approval. Executive Summary: The project is to provide furniture and installation of furniture for the new city hall project. In accordance with the city procurement procedures a Request for Qualifications (RFQ) was issued to identify the most qualified vendor to provide these services and products. The city received 11 responses to the RFQ and Office Images, Inc. was selected by the committee. Staff is recommending approval of the Furniture Design Consultant Agreement with Office Images, Inc. in an amount not to exceed $350,000. Funding and Fiscal Impact: Funding for this project is available in the City Hall construction budget. Alternatives: There are no alternatives to this project. Legal Review: Molly Esswein – Jarrard & Davis (12-15-15) Concurrent Review: Chris Lagerbloom, City Manager Attachment(s): Furniture Design Consultant Agreement HOMF OF ' ESTABLISIIED 2006 FURNITURE/DESIGN CONSULTANT AGREEMENT THIS AGREEMENT (the "Agreement") is effective as of this day of , 2016, by and between the CITY OF MILTON, GEORGIA, a municipal corporation of the State of Georgia, acting by and through its governing authority, the Milton Mayor and City Council ("City"), and OfficeImages, Inc., a Georgia corporation, ("Consultant"), collectively referred to as the 'Parties." WITNESSETH THAT: WHEREAS, the City desires to retain Consultant to provide certain services generally described as the design and installation of furniture and fixtures for City Hall; and WHEREAS, the City finds that specialized knowledge, skills, and training are necessary to perform the Work contemplated under this Agreement; and WHEREAS, the Consultant has represented that it is qualified by training and experience to perform the Work and that it specializes in furniture planning, design, layout, procurement, and installation and can lead the furniture process for the Project (defined below); and WHEREAS, the Consultant desires to perform the Work under the terms and conditions set forth in this Agreement; and WHEREAS, the public interest will be served by this Agreement; NOW, THEREFORE, for and in consideration of the mutual promises, the public purposes, and the acknowledgements and agreements contained herein, together with other good and adequate consideration, the sufficiency of which is hereby acknowledged, the Parties hereto do mutually agree as follows: I. SCOPE OF SERVICES AND TERMINATION DATE A. Definitions 1. Proiect Team means the City, Architect, Construction Manager, and Design Team. 2. Design Team means those individuals listed in Exhibit C who shall be responsible for completing the Work under this Agreement. 3. Proiect Manager means the manager of the Design Team, Kate Wilson. 4. Architect means Cooper Carry, Inc. 5. Construction Manager, sometimes referred to as the CM/GC, means New South Construction Company, Inc. or such other entity hired to complete construction of City Hall. B. Proiect Description Consultant shall provide a turnkey furniture design, procurement, and installation package for this project. Early layout of furniture will be required to facilitate coordination with the Architect to review and confirm voice, data, and electrical locations. These services are intended to ensure the City receives a high-quality project on time and within budget. C. The Work The Work to be completed under this Agreement (the "Work") consists of: 1. The major categories of furniture to be designed, procured and installed for this Project are listed below: a) Seating b) Conference Rooms c) Offices d) Workstations e) Storage Files f) Art work and Signage g) Furniture related technological components 2. Services for Project include: a) Project management and coordination b) Furniture planning and design of furniture layout c) Furniture design and selection d) Handling of existing furniture e) Furniture procurement f) Delivery, inventory and installation services g) Design collaboration with Architect to review Architect's plans and layout to propose coordinating furniture to complement the plans. h) Cleaning i) Project Closeout 3. Project Management Coordination a) The Consultant will coordinate its team and coordinate with the design and construction teams. b) Project Meetings: Consultant will conduct Project meetings at the Project site or via conference call, as determined by the City to be appropriate in its sole discretion. Each entity involved in progress occurring on the Project or involved with planning or coordination shall attend. 2 c) Schedule: Consultant shall submit an installation schedule that aligns with overall Project schedule as specified in Section II(D) below. d) The City reserves the right to remove any service from this scope. e) Consultant will coordinate closely with key individuals of the Project Team, including the City, Architect, and the Construction Manager. The City reserves the right to separate the furniture package and work with multiple furniture manufacturers if it is in the best interest of the City so that the City is not restricted on product lines and has a greater ability to control cost savings. 4. Furniture Planning and Design of Furniture Layout The following describes the scope of services for furniture planning and layout: a) Develop furniture layout drawings and installation plans for all furniture required for the Project. Consultant may need to perform several iterations of layout drawings until the proper layout is approved by the City. Critical dimensions shall be included in installation plans. b) Provide locations for AV and power for workstations. Once AV and power have been installed, Consultant will be responsible to field verify locations for accuracy and confirm it will work with proposed furniture. c) Coordinate with Architect and Construction Manager. 5. Furniture Design and Selection The following describes the scope of services for furniture design and selection: a) Present initial furniture design and selection to Project Team for review and approval. b) Present final furniture design and selection to Project Team for review and approval. c) Develop and present detailed specifications for seating, conference rooms, workstations, and general offices to the Project Team for review and approval. d) Coordinate with the Architect to obtain needed interior finish selections and floor plans. Submit samples of materials to be used. e) Verify dimensions by field measurement. f) Make substitution selections as needed for furniture items that cannot be procured in required timeline. g) Provide mock-up, via renderings and "demos", of all furniture types for approval prior to placing furniture order. h) All selections and plans are subject to review and approval of the City. Therefore, multiple iterations may be necessary before the final selections are approved by the City. 3 6. Existing Furniture The following describes the scope of services for existing furniture: a) Survey and catalogue existing furniture for reuse, sale, or other disposition, subject to approval by the City. 7. Procurement The following describes the scope of services for furniture procurement: a) This Project will be handled through the Georgia statewide contract process, 99999-001-SPD0000100 for Furniture, Office, Computer and Education. b) Coordinate order with furniture manufacturers. c) Coordinate delivery with furniture manufacturers to maintain Project schedule. d) Coordinate sizes of furniture with architectural drawings. S. Delivery, Inventory and Installation The following describes the scope of services for furniture procurement: a) Develop and maintain a manufacturing, delivery, and installation schedules that align with Project schedule. b) Coordinate with Construction Manager on items related to furniture installation including coordination of building electrical power to system furniture. c) Receive delivery from furniture manufacturer. Inspect products for compliance with order and to verify that items are undamaged and properly protected. Do not install damaged goods, unless approved in writing by the City and under circumstances where damaged part is contingent on continuing the installation and maintaining schedule. Coordinate delivery to Project site with the City and General Contractor. d) Unload and unpack all furniture items. e) Provide protection for all building finish surfaces (including elevators). Consultant will be responsible for protecting existing finishes from damage during furniture installation and will be charged with any damage created by its installers. f) Load furniture into the building. g) Assemble/Install all furniture items as required. h) Arrange furniture in correct layout. Adjust floor levelers for level installation. i) Rent or provide temporary furniture as needed for furniture delivery not made on schedule. 4 j) Protect installed goods from damage caused by moisture, heat, staining, dirt, abrasion, or any other condition that may adversely affect appearance. k) Coordinate keying with City. 1) Perform initial punch walk with the City. m) Resolve all punch list items. n) Perform final punch walk with the City. 9. Cleaning The following describes the scope of services for cleaning: a) Space should be cleared of all packing materials and debris at the end of each day. b) Use of Construction Manager's dumpster is not permitted without prior approval. c) Remove all labels that are not permanent. d) Clean transparent surfaces. Replace chipped or broken glass. e) Clean exposed finishes to a dust -free condition, free of stains, films, fingerprints, and foreign substances. f) Vacuum carpet. g) Vacuum upholstered surfaces. 10. Project Closeout The following describes the scope of services for Project closeout: a) Mark a set of drawings to show any installation that varies from the work originally shown. b) Mark product specs/data sheets to show any variations from original specs. c) Operation and Maintenance Data: organize data into three ring binders. Identify each binder on front and spine with title "OPERATION AND MAINTENANCE DATA", Project name and name of furniture dealer. Include the following: i. Spare parts list, ii. Copies of warranties, iii. Wiring diagrams, iv. Drawings and product data/specs, v. Maintenance and appearance retention procedures, and vi. Contact info for maintenance supplier. d) Deliver unused materials, spare parts and similar items to City. e) Remove temporary protection. f) Arrange for installer of any furniture that requires operation and maintenance to also provide instructions to City's personnel. 5 D. Schedule, Completion Date, and Term of Agreement Consultant warrants and represents that it will perform its services in a prompt and timely manner, which shall not impose delays on the progress of the Work. This Agreement shall commence as of the date first written above, and the Work shall be completed on or before March 1, 2017. If the Term of this Agreement is longer than one year, the Parties agree that this Agreement, as required by O.C.G.A. § 36-60-13, shall terminate absolutely and without further obligation on the part of the City on December 31 each calendar year of the Term [ ❑ unless this box is checked, in which case the Agreement shall terminate absolutely and without further obligation on the part of the City at the end of the City's fiscal year each year of the Term], and further, that this Agreement shall automatically renew on January 1 of each subsequent calendar year [ ❑ unless this box is checked, in which case the Agreement shall automatically renew on the first day of each subsequent City fiscal year of the Term] absent the City's provision of written notice of non -renewal to Consultant at least five (5) days prior to the end of the then current calendar year [or fiscal year, as applicable]. Title to any supplies, materials, equipment, or other personal property shall remain in Consultant until fully paid for by the City. II. WORK CHANGES A. The City reserves the right to order changes in the Work to be performed under this Agreement by altering, adding to, or deducting from the Work. All such changes shall be incorporated in written change orders executed by the Consultant and the City. Such change orders shall specify the changes ordered and any necessary adjustment of compensation and completion time. If the Parties cannot reach an agreement on the terms for performing the changed work within a reasonable time to avoid delay or other unfavorable impacts as determined by the City in its sole discretion, the City shall have the right to determine reasonable terms, and the Consultant shall proceed with the changed work. B. Any work added to the scope of this Agreement by a change order shall be executed under all the applicable conditions of this Agreement. No claim for additional compensation or extension of time shall be recognized, unless contained in a written change order duly executed on behalf of the City and the Consultant. III. COMPENSATION AND METHOD OF PAYMENT A. City agrees to pay the Consultant for the Work performed and costs incurred by Consultant upon certification by the City that the Work was actually performed and costs actually incurred in accordance with the Agreement. Compensation for Work performed and reimbursement for costs incurred shall be paid to the Consultant upon receipt and approval by the City of invoices, setting forth in detail the services performed and costs incurred, along with all supporting documents requested by the City to process the invoice. Invoices shall be submitted on a monthly basis, and such invoices shall reflect costs incurred versus costs budgeted. Any material deviations in tests or inspections performed, or times or locations required to complete such tests or inspections, and like deviations from the Work described in this Agreement shall be clearly communicated to the City before charges are incurred and shall 0 be handled through change orders as described in Section II above. The City shall pay the Consultant within thirty (30) days after approval of the invoice by City staff. B. The total amount paid under this Agreement as compensation for Work performed and reimbursement for costs incurred shall not, in any case, exceed $350,000, except as outlined in Section II above, and the Consultant represents that this amount is sufficient to perform all of the Work set forth in and contemplated by this Agreement. The compensation for Work performed shall be based upon a flat fee of $50,000 for the services described in Section I(C) above. The not to exceed amount provided above includes a $300,000 budget for the purchase of furniture and fixtures; provided that Consultant must document and provide invoices to the City of the actual cost to purchase the furniture and fixtures, and Consultant will only be reimbursed for such actual costs. Actual costs for furniture and fixtures will be based on pricing established in the Georgia Statewide contract for Furniture, Office, Computer and Education supplies. C. The maximum price set forth in Section III(B) above includes all costs, direct and indirect, needed to perform the Work and complete the Project, and reimbursement for costs incurred shall be limited as follows. Consultant shall invoice in accordance with the following schedule: 50% of the cost for furniture and fixtures and 50% of compensation for services will be paid at the time a Purchase Order for furniture and fixtures is issued by the City, 40% of the cost for furniture and fixtures and 40% of compensation for services will be paid at the time of product delivery to the Project site, Final 10% of the cost for furniture and fixtures and final 10% of compensation for services will be paid at the time of final completion of the services related to this Agreement. IV. COVENANTS OF CONSULTANT A. Expertise of Consultant; Licenses, Certification and Permits Consultant accepts the relationship of trust and confidence established between it and the City, recognizing that the City's intention and purpose in entering into this Agreement is to engage an entity with the requisite capacity, experience, and skill and judgment to provide the Work in pursuit of the timely and competent completion of the Work undertaken by Consultant under this Agreement. The Consultant shall employ only persons duly qualified in the appropriate area of expertise to perform the Work described in this Agreement. The Consultant covenants and declares that it has obtained all diplomas, certificates, licenses, permits or the like, if any, required of the Consultant by any and all national, state, regional, county, or local boards, agencies, commissions, committees or other regulatory bodies in order to perform the Work contracted for under this Agreement. All Work performed by Consultant under this Agreement shall be in accordance with applicable legal requirements. B. Consultant's Reliance on Submissions by the City Consultant must have timely information and input from the City in order to perform the Work required under this Agreement. Consultant is entitled to rely upon information provided by the City, but Consultant shall be required to provide immediate written notice to the City if Consultant knows or reasonably should know that any information provided by the City is erroneous, inconsistent, or otherwise problematic. C. Consultant's Representative Kate Wilson shall be authorized to act on Consultant's behalf with respect to the Work as Consultant's designated representative. D. Assignment of Agreement The Consultant covenants and agrees not to assign or transfer any interest in, or delegate any duties of this Agreement, without the prior express written consent of the City. As to any approved subcontractors, the Consultant shall be solely responsible for reimbursing them, and the City shall have no obligation to them. E. Responsibility of Consultant and Indemnification of City The Consultant covenants and agrees to take and assume all responsibility for the Work rendered in connection with this Agreement. The Consultant shall bear all losses and damages directly or indirectly resulting to it and/or the City on account of the performance or character of the Work rendered pursuant to this Agreement. Consultant shall defend, indemnify and hold harmless the City and the City's elected and appointed officials, officers, boards, commissions, employees, representatives, consultants, servants, agents and volunteers (individually an "Indemnified Party" and collectively the "Indemnified Parties") from and against any and all claims, suits, actions, judgments, injuries, damages, losses, costs, expenses and liability of any kind whatsoever, including but not limited to attorney's fees and costs of defense ("Liabilities"), which may arise from or be the result of alleged willful, negligent or tortious conduct arising out of the Work, performance of contracted services, or operations by the Consultant, any subcontractor, anyone directly or indirectly employed by the Consultant or subcontractor or anyone for whose acts the Consultant or subcontractor may be liable, regardless of whether or not the act or omission is caused in part by a party indemnified hereunder. This indemnity obligation does not include Liabilities caused by or resulting from the sole negligence of an Indemnified Party. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this provision. In any and all claims against an Indemnified Party, by any employee of the Consultant, its subcontractor, anyone directly or indirectly employed by the Consultant or subcontractor or anyone for whose acts the Consultant or subcontractor may be liable, the indemnification obligation set forth in this provision shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Consultant or any subcontractor under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts. This obligation to indemnify, defend, and hold harmless the Indemnified Party(ies) shall survive expiration or termination of this Agreement, provided that the claims are based upon or arise out of actions or omissions that occurred during 0 the performance of this Agreement. F. Independent Contractor Consultant hereby covenants and declares that it is engaged in an independent business and agrees to perform the Work as an independent contractor and not as the agent or employee of the City. Nothing in this Agreement shall be construed to make the Consultant or any of its employees, servants, or subcontractors an employee, servant or agent of the City for any purpose. The Consultant agrees to be solely responsible for its own matters relating to the time and place the Work is performed and the method used to perform such Work; the instrumentalities, tools, supplies and/or materials necessary to complete the Work; hiring of consultants, agents or employees to complete the Work; and the payment of employees, including benefits and compliance with Social Security, withholding and all other regulations governing such matters. The Consultant agrees to be solely responsible for its own acts and those of its subordinates, employees, and subcontractors during the life of this Agreement. There shall be no contractual relationship between any subcontractor or supplier and the City by virtue of this Agreement with Consultant. Any provisions of this Agreement that may appear to give the City the right to direct Consultant as to the details of the services to be performed by Consultant or to exercise a measure of control over such services will be deemed to mean that Consultant shall follow the directions of the City with regard to the results of such services only. It is further understood that this Agreement is not exclusive, and the City may hire additional entities to perform the Work related to this Agreement. G. Insurance (1) Requirements. The Consultant shall have and maintain in full force and effect for the duration of this Agreement, insurance insuring against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work by the Consultant, its agents, representatives, employees or subcontractors. All policies shall be subject to approval by the City to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. (2) Minimum Limits of Insurance: Consultant shall maintain the following insurance policies with coverage and limits no less than: (a) Commercial General Liability coverage of at least $1,000,000 (one million dollars) combined single limit per occurrence and $2,000,000 (two million dollars) aggregate for comprehensive coverage including for bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting therefrom. (b) Commercial Automobile Liability (owned, non -owned, hired) coverage of at least $1,000,000 (one million dollars) combined single limit per occurrence for comprehensive coverage including bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting therefrom. (c) Workers' Compensation limits as required by the State of Georgia and Employers' Liability limits of $1,000,000 (one million dollars) per occurrence or disease. (If Consultant is a sole proprietor, who is otherwise not entitled to coverage under Georgia's Workers' Compensation Act, Consultant must secure Workers' Compensation coverage approved by both the State Board of Workers' Compensation and the Commissioner of Insurance. The amount of such coverage shall be the same as what is otherwise required of employers entitled to coverage under the Worker's Compensation Act. Further, the Consultant shall provide a certificate of insurance indicating that such coverage has been secured and that no individual has been excluded from coverage.) (3) Deductibles and Self -Insured Retentions: Any deductibles or self-insured retentions must be declared to and approved by the City in writing. (4) Other Insurance Provisions: Each policy shall contain, or be endorsed to contain, the following provisions respectively: (a) General Liability, Automobile Liability and Umbrella Liability Coverage. (i) Additional Insured Requirement. The City and the City's elected and appointed officials, officers, boards, commissions, employees, representatives, consultants, servants, agents and volunteers (individually "Insured Party" and collectively "Insured Parties") are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, leased, or used by the Consultant; automobiles owned, leased, hired, or borrowed by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to the Insured Parties. (ii) Primary Insurance Requirement. The Consultant's insurance coverage shall be primary noncontributing insurance as respects to any other insurance or self-insurance available to the Insured Iff Parties. Any insurance or self-insurance maintained by the Insured Parties shall be in excess of the Consultant's insurance and shall not contribute with it. (iii) Reporting Requirement. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Insured Parties. (iv) Separate Coverage. Coverage shall state that the Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought. (v) Defense Costs/Cross Liability. Coverage shall be provided on a "pay on behalf' basis, with defense costs payable in addition to policy limits. There shall be no cross liability exclusion. (vi) Subrogation. The insurer shall agree to waive all rights of subrogation against the Insured Parties for losses arising from Work performed by the Consultant for the City. (b) Workers' Compensation Coverage. The insurer providing Workers' Compensation Coverage will agree to waive all rights of subrogation against the Insured Parties for losses arising from Work performed by the Consultant for the City. (c) All Coverages. (i) Notice Requirement. Each insurance policy required by this Agreement shall be endorsed to state that coverage shall not be suspended, voided, or canceled except after thirty (30) days prior written notice (or 10 days if due to non-payment) has been given to the City. The City reserves the right to accept alternate notice terms and provisions, provided they meet the minimum requirements under Georgia law. (ii) Starting and Ending Dates. Policies shall have concurrent starting and ending dates. (5) Acceptability of Insurers: The insurance to be maintained by Consultant must be placed with insurers with an A.M. Best Policyholder's rating of no less than "A-" and with a financial rating of Class VII or greater. (6) Verification of Coverage: Consultant shall furnish the City with certificates of insurance and endorsements to the policies evidencing all coverage required by this Agreement. The certificates of insurance and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf, unless alternate sufficient evidence of their validity and incorporation into the policy is provided. The certificates of insurance, endorsements and declarations page shall be furnished on a form utilized by Consultant's insurer in its normal course of business. The City reserves the right to require complete, certified copies of all required insurance policies at any time. The Consultant shall provide proof that any expiring coverage has been renewed or replaced prior to the expiration of the coverage. (7) Subcontractors: Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated in this Agreement, including, but not limited to, naming the Insured Parties as additional insureds. (8) Claims -Made Policies: Consultant shall extend any claims -made insurance policy for at least six (6) years after termination or final payment under the Agreement, whichever is later. H. Employment of Unauthorized Aliens Prohibited — E -Verify Affidavit Pursuant to O.C.G.A. § 13-10-91, the City shall not enter into a contract for the physical performance of services unless: (1) the Consultant shall provide evidence on City -provided forms, attached hereto as Exhibits "A" and "B" (affidavits regarding compliance with the E -Verify program to be sworn under oath under criminal penalty of false swearing pursuant to O.C.G.A. § 16-10-71), that it and Consultant's subcontractors have registered with, are authorized to use and use the federal work authorization program commonly known as E -Verify, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A. § 13-10-91, and that they will continue to use the federal work authorization program throughout the contract period, or (2) the Consultant provides evidence that it is not required to provide an affidavit because it is licensed pursuant to Title 26 or Title 43 or by the State Bar of Georgia and is in good standing. The Consultant hereby verifies that it has, prior to executing this Agreement, executed a notarized affidavit, the form of which is provided in Exhibit "A", and submitted such affidavit to 12 City or provided the City with evidence that it is an individual not required to provide such an affidavit because it is licensed and in good standing as noted in subsection (2) above. Further, Consultant hereby agrees to comply with the requirements of the federal Immigration Reform and Control Act of 1986 (IRCA), P.L. 99-603, O.C.G.A. § 13-10-91 and Rule 300-10-1-.02. In the event the Consultant employs or contracts with any subcontractor(s) in connection with the covered contract, the Consultant agrees to secure from such subcontractor(s) attestation of the subcontractor's compliance with O.C.G.A. § 13-10-91 and Rule 300-10-1-.02 by the subcontractor's execution of the subcontractor affidavit, the form of which is attached hereto as Exhibit `B", which subcontractor affidavit shall become part of the contractor/subcontractor agreement, or evidence that the subcontractor is not required to provide such an affidavit because it is licensed and in good standing as noted in subsection (2) above. If a subcontractor affidavit is obtained, Consultant agrees to provide a completed copy to the City within five (5) business days of receipt from any subcontractor. Where Consultant is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the City Manager or his/her designee shall be authorized to conduct an inspection of the Consultant's and Consultant's subcontractors' verification process at any time to determine that the verification was correct and complete. The Consultant and Consultant's subcontractors shall retain all documents and records of their respective verification process for a period of five (5) years following completion of the contract. Further, where Consultant is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the City Manager or his/her designee shall further be authorized to conduct periodic inspections to ensure that no City Consultant or Consultant's subcontractors employ unauthorized aliens on City contracts. By entering into a contract with the City, the Consultant and Consultant's subcontractors agree to cooperate with any such investigation by making their records and personnel available upon reasonable notice for inspection and questioning. Where a Consultant or Consultant's subcontractors are found to have employed an unauthorized alien, the City Manager or his/her designee may report same to the Department of Homeland Security. The Consultant's failure to cooperate with the investigation may be sanctioned by termination of the contract, and the Consultant shall be liable for all damages and delays occasioned by the City thereby. Consultant agrees that the employee -number category designated below is applicable to the Consultant. [Information only required if a contractor affidavit is required pursuant to O.C.G.A. § 13-10-91.1 500 or more employees. 100 or more employees. Fewer than 100 employees. Consultant hereby agrees that, in the event Consultant employs or contracts with any subcontractor(s) in connection with this Agreement and where the subcontractor is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the Consultant will secure from the 13 subcontractor(s) such subcontractor(s') indication of the above employee -number category that is applicable to the subcontractor. The above requirements shall be in addition to the requirements of State and federal law, and shall be construed to be in conformity with those laws. I. Records, Reports and Audits (1) Records: (a) Books, records, documents, account legers, data bases, and similar materials relating to the Work performed for the City under this Agreement ("Records") shall be established and maintained by the Consultant in accordance with requirements prescribed by the City with respect to all matters covered by this Agreement. Except as otherwise authorized or required, such Records shall be maintained for at least three (3) years from the date that final payment is made to Consultant by City under this Agreement. Furthermore, Records that are the subject of audit findings shall be retained for three (3) years or until such audit findings have been resolved, whichever is later. (b) All costs claimed or anticipated to be incurred in the performance of this Agreement shall be supported by properly executed payrolls, time records, invoices, contracts, or vouchers, or other official documentation evidencing in proper detail the nature and propriety of the charges. All checks, payrolls, invoices, contracts, vouchers, orders or other accounting documents pertaining in whole or in part to this Agreement shall be clearly identified and readily accessible. (2) Reports and Information: Upon request, the Consultant shall furnish to the City any and all Records related to matters covered by this Agreement in the form requested by the City. All Records stored on a computer database must be in a format compatible with the City's computer systems and software. (3) Audits and Inspections: At any time during normal business hours and as often as the City may deem necessary, Consultant shall make available to the City or City's representative(s) for examination all Records with respect to all matters covered by this Agreement. The Consultant will permit the City or City's representative(s) to audit, examine, and make excerpts or transcripts from such Records, and to audit all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and/or data relating to all matters covered by this Agreement. 14 J• Conflicts of Interest Consultant agrees that it shall not engage in any activity or conduct that would result in a violation of the City of Milton Code of Ethics. K. Confidentiality Consultant acknowledges that it may receive confidential information of the City and that it will protect the confidentiality of any such confidential information and will require any of its subcontractors, consultants, and/or staff to likewise protect such confidential information. The Consultant agrees that confidential information it receives or such reports, information or opinions that Consultant creates or provides under this Agreement shall not be made available to, or discussed with, any individual or organization, including the news media, without prior written approval of the City. The Consultant shall exercise reasonable precautions to prevent the unauthorized disclosure and use of City information whether specifically deemed confidential or not. Consultant acknowledges that the City's disclosure of documentation is governed by Georgia's Open Records Act, and Consultant further acknowledges that if Consultant submits records containing trade secret information, and if Consultant wishes to keep such records confidential, Consultant must submit and attach to such records an affidavit affirmatively declaring that specific information in the records constitutes trade secrets pursuant to Article 27 of Chapter 1 of Title 10, and the Parties shall follow the requirements of O.C.G.A. § 50-18- 72(a)(34) related thereto. L. Key Personnel All of the individuals identified in Exhibit "C" are necessary for the successful completion of the Work due to their unique expertise and depth and breadth of experience. There shall be no change in Consultant's Project Manager or members of the Design Team, as listed in Exhibit "C", without written approval of the City. Consultant recognizes that the composition of this team was instrumental in the City's decision to award the Work to Consultant and that compelling reasons for substituting these individuals must be demonstrated for the City's consent to be granted. Any substitutes shall be persons of comparable or superior expertise and experience. Failure to comply with the provisions of this section shall constitute a material breach of Consultant's obligations under this Agreement and shall be grounds for termination. Consultant shall not subcontract with any third party for the performance of any portion of the Work without the prior written consent of the City. Consultant shall be solely responsible for any such subcontractors in terms of performance and compensation. M. Authority to Contract The Consultant covenants and declares that it has obtained all necessary approvals of its board of directors, stockholders, general partners, limited partners or similar authorities to simultaneously execute and bind Consultant to the terms of this Agreement, if applicable. 15 N. Ownership of Work All reports, designs, drawings, plans, specifications, schedules, work product and other materials prepared or in the process of being prepared for the Work to be performed by the Consultant ("Materials") shall be the property of the City, and the City shall be entitled to full access and copies of all such Materials. Any such Materials remaining in the hands of the Consultant or subcontractor upon completion or termination of the Work shall be delivered immediately to the City; provided that Consultant may retain a copy of any deliverables for its records. The Consultant assumes all risk of loss, damage or destruction of or to such Materials. If any Materials are lost, damaged or destroyed before final delivery to the City, the Consultant shall replace them at its own expense. Any and all copyrightable subject matter in all Materials is hereby assigned to the City, and the Consultant agrees to execute any additional documents that may be necessary to evidence such assignment. O. Nondiscrimination In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and all other provisions of Federal law, the Consultant agrees that, during performance of this Agreement, Consultant, for itself, its assignees and successors in interest, will not discriminate against any employee or applicant for employment, any subcontractor, or any supplier because of race, color, creed, national origin, gender, age or disability. In addition, Consultant agrees to comply with all applicable implementing regulations and shall include the provisions of this Section IV(0) in every subcontract for services contemplated under this Agreement. V. COVENANTS OF THE CITY A. Right of Entry The City shall provide for right of entry for Consultant as required for Consultant to complete the Work. B. City's Representative Bob Buscemi shall be authorized to act on the City's behalf with respect to the Work as the City's designated representative; provided that any changes to the Work or the terms of this Agreement must be approved as provided in Section II above. VI. TERMINATION A. The City shall have the right to terminate this Agreement for convenience or for cause by providing written notice thereof at least five (5) calendar days in advance of the termination date. The Consultant shall have no right to terminate this Agreement prior to completion of the Work, except in the event of the City's failure to pay the Consultant within thirty (30) days of Consultant providing the City with notice of a delinquent payment and an OR opportunity to cure. B. Upon termination, the City shall provide for payment to the Consultant for services rendered and expenses incurred prior to the termination date. C. Upon termination, the Consultant shall: (1) promptly discontinue all services, cancel as many outstanding obligations as possible, and not incur any new obligations, unless the notice directs otherwise; and (2) promptly deliver to the City all data, drawings, reports, summaries, and such other information and materials as may have been generated or used by the Consultant in performing this Agreement, whether completed or in process, in the form specified by the City. D. The rights and remedies of the City and the Consultant provided in this Article are in addition to any other rights and remedies provided under this Agreement or at law or in equity. VII. NO PERSONAL LIABILITY Nothing herein shall be construed as creating any individual or personal liability on the part of any of City's elected or appointed officials, officers, directors or employees. No such individual shall be personally liable to the Consultant or any successor in interest in the event of any default or breach by the City or for any amount which may become due to the Consultant or successor or on any obligation under the terms of this Agreement. The Consultant agrees that its sole and exclusive remedy, claim, demand or suit shall be directed and/or asserted only against the City and not against its elected or appointed officials, officers, directors, or employees. VIII. ENTIRE AGREEMENT This Agreement constitutes the complete agreement between the Parties and supersedes any and all other agreements, either oral or in writing, between the Parties with respect to the subject matter of this Agreement. No other agreement, statement or promise relating to the subject matter of this Agreement not contained in this Agreement shall be valid or binding. This Agreement may be modified or amended only by a written document signed by representatives of both Parties with appropriate authorization. IX. SUCCESSORS AND ASSIGNS Subject to the provision of this Agreement regarding assignment, this Agreement shall be binding on the heirs, executors, administrators, successors and assigns of the respective Parties, provided that no Party may assign this Agreement without prior written approval of the other Party. X. APPLICABLE LAW This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia. If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement, the rules, regulations, statutes and laws of the State of Georgia will 17 control. Any action or suit related to this Agreement shall be brought in the Superior Court of Fulton County, Georgia, and Consultant submits to the jurisdiction and venue of such court. XI. CAPTIONS AND SEVERABILITY The caption or headnote on articles or sections of this Agreement are intended for convenience and reference purposes only and in no way define, limit or describe the scope or intent thereof, or of this Agreement nor in any way affect this Agreement. Should any article(s) or section(s), or any part thereof, later be deemed illegal, invalid or unenforceable by a court of competent jurisdiction, the offending portion of the Agreement should be severed, and the remainder of this Agreement shall remain in full force and effect to the extent possible, as the Parties declare they would have agreed to the remaining parts of this Agreement if they had known that the severed provisions or portions thereof would be determined illegal, invalid or unenforceable . XII. BUSINESS LICENSE Prior to commencement of the services to be provided hereunder, Consultant shall apply obtain a business license, pay the applicable business license fee, and maintain said business license during the term of this Agreement, unless Consultant provides evidence that no such license is required. XIII. NOTICES A. Communications Relating to Day -to -Day Activities All communications relating to the day-to-day activities of the Work shall be exchanged between Bob Buscemi for the City and Kate Wilson for the Consultant with copies to Sean McLendon of Cooper Carry. B. Official Notices All other notices, requests, demands, writings, or correspondence, as required by this Agreement, shall be in writing and shall be deemed received, and shall be effective, when: (1) personally delivered, or (2) on the third day after the postmark date when mailed by certified mail, postage prepaid, return receipt requested, or (3) upon actual delivery when sent via national overnight commercial carrier to the Party at the addresses given below, or at a substitute address previously furnished to the other Party by written notice in accordance herewith: NOTICE TO THE CITY shall be sent to: City Manager City of Milton, Georgia 13000 Deerfield Parkway, Suite 107F Milton, Georgia 30004 [EV NOTICE TO THE CONSULTANT shall be sent to: Office Images, Inc. 1515 Holcomb Woods Parkway Roswell, Georgia 30076 Attn: Kate Wilson XIV. WAIVER OF AGREEMENT No failure by the City to enforce any right or power granted under this Agreement, or to insist upon strict compliance by Consultant with this Agreement, and no custom or practice of the City at variance with the terms and conditions of this Agreement shall constitute a general waiver of any future breach or default or affect the City's right to demand exact and strict compliance by Consultant with the terms and conditions of this Agreement. Further, no express waiver shall affect any term or condition other than the one specified in such waiver, and that one only for the time and manner specifically stated. XV. NO THIRD PARTY RIGHTS This Agreement shall be exclusively for the benefit of the Parties and shall not provide any third parties with any remedy, claim, liability, reimbursement, cause of action or other right. XVI. SOVEREIGN IMMUNITY Nothing contained in this Agreement shall be construed to be a waiver of the City's sovereign immunity or any individual's qualified good faith or official immunities. XVII. AGREEMENT CONSTRUCTION AND INTERPRETATION Consultant represents that it has reviewed and become familiar with this Agreement and has notified the City of any discrepancies, conflicts or errors herein. The Parties hereto agree that, if an ambiguity or question of intent or interpretation arises, this Agreement is to be construed as if the Parties had drafted it jointly, as opposed to being construed against a Party because it was responsible for drafting one or more provisions of the Agreement. XVIII. FORCE MAJEURE Neither the City nor Consultant shall be liable for its respective non -negligent or non - willful failure to perform or shall be deemed in default with respect to the failure to perform (or cure a failure to perform) any of its respective duties or obligations under this Agreement or for any delay in such performance due to: (a) any cause beyond its respective reasonable control; (b) any act of God; (c) any change in applicable governmental rules or regulations rendering the performance of any portion of this Agreement legally impossible; (d) earthquake, fire, explosion or flood; (e) strike or labor dispute, excluding strikes or labor disputes by employees and/or H agents of CONSULTANT; (f) delay or failure to act by any governmental or military authority; or (g) any war, hostility, embargo, sabotage, civil disturbance, riot, insurrection or invasion. In such event, the time for performance shall be extended by an amount of time equal to the period of delay caused by such acts, and all other obligations shall remain intact. XIX. MATERIAL CONDITION Each term of this Agreement is material, and Consultant's breach of any term of this Agreement shall be considered a material breach of the entire Agreement and shall be grounds for termination or exercise of any other remedies available to the City at law or in equity. IN WITNESS WHEREOF the City and the Consultant have executed this Agreement, which is effective as of the Effective Date provided above. [SIGNATURES ON FOLLOWING PAGE] 20 CONSULTANT: [CORPORATE SEAL] BY: 1 1 _r ---- Its: Gr.er,�.G_-. _m_ i r -,(Assistant) C porate Sdcretary (circle one) CITY: CITY OF MILTON, GEORGIA, acting by and through its governing authority, the Mayor and City Council By: Joe Lockwood Its: Mayor [CITY SEAL] Attest: Its: City Clerk EXHIBIT "A" STATE OF GEORGIA COUNTY OF FULTON CONTRACTOR AFFIDAVIT AND AGREEMENT By executing this affidavit, the undersigned contractor verifies its compliance with O.C.G.A. § 13-10-91, stating affirmatively that the individual, firm, or corporation which is engaged in the physical performance of services on behalf of the City of Milton, Georgia has registered with, is authorized to use and uses the federal work authorization program commonly known as E -Verify, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A. § 13-10-91. Furthermore, the undersigned contractor will continue to use the federal work authorization program throughout the contract period and the undersigned contractor will contract for the physical performance of services in satisfaction of such contract only with subcontractors who present an affidavit to the contractor with the information required by O.C.G.A. § 13-10- 91(b). Contractor hereby attests that its federal work authorization user identification number and date of authorization are as follows: y7p e-Z?,Il^t , �b;4� Federal Work Aut onzation User Identification Number I c/: /��.s Date of Authorization OfficeImages, Inc. Name of Contractor City of Milton FFE Name of Project City of Milton Name of Public Employer 22 I hereby declare under penalty of perjury that the foregoing is true and correct. Executed on Jt� S , 201 to in e- (city), c A (state). tre of Aut rized Officer or Agent Printed Name and Title of Authorized Officer or Agent SUBSCRIBED AND SWORN BEFORE ME ON THIS THE , DAY OF . ;201. ,2 ARy-PtlBLic - [NOTAMAKA na Cy Cobb County, GEORGIA My Commission Expires 423-2019 My Commission Expires: 6/ /-)—. / EXHIBIT "B" STATE OF GEORGIA COUNTY OF FULTON SUBCONTRACTOR AFFIDAVIT By executing this affidavit, the undersigned subcontractor verifies its compliance with O.C.G.A. § 13-10-91, stating affirmatively that the individual, firm or corporation which is engaged in the physical performance of services under a contract with Officelmages, Inc. on behalf of the City of Milton, Georgia has registered with, is authorized to use and uses the federal work authorization program commonly known as E -Verify, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A. § 13-10-91. Furthermore, the undersigned subcontractor will continue to use the federal work authorization program throughout the contract period, and the undersigned subcontractor will contract for the physical performance of services in satisfaction of such contract only with sub -subcontractors who present an affidavit to the subcontractor with the information required by O.C.G.A. § 13-10-91(b). Additionally, the undersigned subcontractor will forward notice of the receipt of an affidavit from a sub -subcontractor to the contractor within five (5) business days of receipt. If the undersigned subcontractor receives notice that a sub -subcontractor has received an affidavit from any other contracted sub -subcontractor, the undersigned subcontractor must forward, within five (5) business days of receipt, a copy of the notice to the contractor. Subcontractor hereby attests that its federal work authorization user identification number and date of authorization are as follows: Federal Work Authorization User Identification Number Date of Authorization Name of Subcontractor City of Milton FFE Name of Project City of Milton Name of Public Employer 23 I hereby declare under penalty of perjury that the foregoing is true and correct. Executed on , _, 201_ in (city), (state). Signature of Authorized Officer or Agent Printed Name and Title of Authorized Officer or Agent SUBSCRIBED AND SWORN BEFORE ME ON THIS THE DAY OF NOTARY PUBLIC [NOTARY SEAL] My Commission Expires: 1. Bryan Roberts 2. Kate Wilson 3. David Stella 4. Liz Bittner 5. Kirsten Gandy EXHIBIT "C" Key Personnel pursuant to Section IV(L) 24 HOME OF ' 7 ESTABLISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: January 21, 2016 FROM: City Manager AGENDA ITEM: Approval of a Construction Services Agreement between the City of Milton and Design -Build Solutions, Inc./The Garland Company, Inc., dba Garland/DBS, Inc. for Emergency Roof Repairs at the Thomas Byrd Sr. House. MEETING DATE: Monday, February 1, 2016 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: KAPPROVED () NOT APPROVED CITY ATTORNEY APPROVAL REQUIRED: VYES () NO CITY ATTORNEY REVIEW REQUIRED: 4 YES () NO APPROVAL BY CITY ATTORNEY V APPROVED (J NOT APPROVED PLACED ON AGENDA FOR: 0 2 d 1 1 b REMARKS P Your _ PHONE: 678.242.25001 FAX: 678.242.2499 ree n : * rfifi*: info0acityofmiltonga.us I www.cityofmiltonga.us Community 13000 Deerfield Parkway, Suite 107 I Milton GA 30004 �, ®<< Page 1 of 2 To: Honorable Mayor and City Council Members From: Jim Cregge, Parks and Recreation Director Date: Submitted on January 19, 2016 for the February 1, 2016 Regular Council Meeting Agenda Item: Approval of a Construction Services Agreement between the City of Milton and Garland/DBS, Inc. for the Emergency Roof Repairs at the Thomas Byrd Sr. House. ____________________________________________________________________________ Department Recommendation: Staff is recommending the approval of a Construction Services Agreement between the City of Milton and Garland/DBS, Inc. for the Emergency Roof Repairs at the Thomas Byrd Sr. House. Executive Summary: The City has been operating a Senior Service program out of the Thomas Byrd Sr. house since June of 2015. In November, we developed a roof leak which we attempted to repair. In December, the roof leak became more pronounced and there is now interior damage as well. The City contacted our insurance company and they have provided a settlement of $14,399 to effect the repairs to the roof and interior. Funding and Fiscal Impact: The fee of $14,117.00 is well within the funds that were received as an insurance settlement. The insurance settlement has already been received and is available now to fund this project. Page 2 of 2 Alternatives: This work must be completed to maintain the building. The only alternative is to go back to the market and rebid this. Legal Review: Sam VanVolkenburgh – Jarrard & Davis (January 8, 2016) Concurrent Review: Chris Lagerbloom, City Manager Attachment(s): 1) Construction Services Agreement Contract HOME OF MILTON ESTABLISHED 2006 CONSTRUCTION SERVICES AGREEMENT EMERGENCY ROOF REPAIRS AT THE THOMAS BYRD SR. HOUSE This Services Agreement (the "Agreement") is made and entered into this day of , 201_, by and between the CITY OF MILTON, GEORGIA (the "City"), a municipal corporation of the State of Georgia, acting by and through its governing authority, the Mayor and City Council, and having its principal place of business at 13000 Deerfield Parkway Suite 107F, Milton GA 30004, and Design -Build Solutions, Inc./The Garland Company, Inc., dba Garland/DBS, Inc. (the "Contractor") having its principal place of business at 3800 East 915 Street, Cleveland, OH 44105. WITNESSETH THAT: WHEREAS, the City desires to employ a contractor to perform the services described herein (the "Work"); and WHEREAS, Contractor has familiarized itself with the Contract Documents, as defined below, the Work, and with all local conditions and applicable federal, state and local laws, ordinances, rules and regulations. NOW THEREFORE, the City and Contractor, in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency of which is hereby acknowledged, agree as follows: Section 1. Contract Documents: This Agreement and the following named Exhibits, attached hereto and incorporated herein by reference, constitute the "Contract Documents": A. This Agreement (10 Pages) B. Scope of Work, attached hereto as Exhibit "A" C. Insurance Certificate, attached hereto as Exhibit `B" D. Contractor Affidavit and Agreement, attached hereto as Exhibit "C" E. Subcontractor Affidavit, attached hereto as Exhibit "D" Section 2. The Work: Contractor shall provide all Work described in the Contract Documents. In the event of any discrepancy among the Contract Documents, the provision operating most to the benefit of the City, as determined by the City in its sole discretion, shall govern. Unless otherwise stated in the Contract Documents, the Work shall include Contractor's provision of materials, labor, expenses, and any other cost or item necessary to complete the Work, which is generally described as the repair of leaks in the roof, the repair of resultant interior damage and the installation of gutters. Section 3. Contract Time: Contractor understands that time is of the essence of this Agreement and warrants that it will perform the Work in a prompt manner, which shall not impose delays on the progress of the Work. It shall commence Work pursuant to this Agreement on or before a date to be specified on a written "Notice to Proceed" from the City, and shall fully complete the Work within twenty (20) business days of the "Notice to Proceed". Section 4. Work Changes: Any changes to the Work requiring an increase in the Contract Price, as defined below, shall require a written change order executed by the City in accordance with its purchasing regulations. Section 5. Compensation and Method of Payment: City agrees to pay Contractor the lump sum of $14,117.00 for the Work. Compensation shall be paid to Contractor upon the City's receipt and approval of an invoice, submitted upon completion of the Work. Contractor shall take no calculated risk in the performance of the Work. Specifically, Contractor agrees that in the event it cannot perform the Work within the budgetary limitations established without disregarding sound principles of Contractor's industry, Contractor will give written notice thereof immediately to the City. Section 6. Covenants of Contractor A. Assignment of Agreement; Subcontractors: Contractor covenants and agrees not to assign or transfer any interest in, nor delegate any duties of this Agreement, without the prior express written consent of the City. Contractor shall not subcontract with any third party for the performance of any portion of the Work without the prior written consent of the City. Contractor shall be solely responsible for any such subcontractors in terms of performance and compensation. B. Responsibility of Contractor and Indemnification of City: Contractor covenants and agrees to take and assume all responsibility for the services rendered in connection with the Work. Contractor shall bear all losses and damages directly or indirectly resulting to it on account of the performance or character of the services rendered pursuant to this Agreement. Contractor shall defend, indemnify and hold harmless the City, its officers, boards, commissions, elected and appointed officials, employees and agents from and against any and all claims, suits, actions, liability, judgments, damages, losses, and expenses, including but not limited to, attorney's fees, which may be the result of willful, negligent or tortious conduct arising out of the Work, performance of contracted services, or operations by Contractor, any subcontractor, anyone directly or indirectly employed by Contractor or subcontractor or anyone for whose acts or omissions Contractor or subcontractor may be liable, regardless of whether or not the negligent act or omission is caused in part by a party indemnified hereunder. Contractor shall not be required to indemnify the City or its officers, boards, commissions, elected or appointed officials, employees or agents against liability or claims for damages, losses, or expenses, including attorney fees, arising out of bodily injury to persons, death, or damage to property caused by or resulting from the sole negligence of the City or its officers, boards, commissions, elected or appointed officials, employees or agents. C. Independent Contractor: Contractor hereby covenants and declares that it is engaged in an independent business and agrees to perform the Work as an independent contractor, not as agent or employee of City. Inasmuch as City and Contractor are contractors independent of one another, neither has the authority to bind the other to any third person or otherwise to act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. Contractor agrees not to represent itself as City's agent for any purpose to any party or to allow any employee to do so, unless specifically authorized, in advance and in writing, and then only for the limited purpose stated in such authorization. Contractor shall assume full liability for any contracts or agreements Contractor enters into on behalf of City without the express knowledge and prior written consent of City. D. Insurance: Contractor shall have and maintain in full force and effect for the duration of this Agreement, insurance approved by the City, as exemplified by the certificate attached as Exhibit "B". Notwithstanding anything to the contrary in Exhibit "B," the insurance provided by the Contractor shall comply with the following provisions: Requirements: The Contractor shall have and maintain in full force and effect for the duration of this Agreement, insurance insuring against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work by the Contractor, its agents, representatives, employees 2 or subcontractors. All policies shall be subject to approval by the City Attorney to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. (2) Minimum Limits of Insurance: Contractor shall maintain the following insurance policies with coverage and limits no less than: (a) Commercial General Liability: $1,000,000 (one million dollars) combined single limit per occurrence and $2,000,000 (two million dollars) aggregate comprehensive/extended/enhanced Commercial General Liability policy with coverage including bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting therefrom, damage for premises/operations, products/completed operations, independent consultants and contractual liability (specifically covering the indemnity), broad -form property damage, and underground, explosion and collapse hazard. This coverage may be achieved by using an excess or umbrella policy. The policy or policies must be on "an occurrence" basis ("claims made" coverage is not acceptable). (b) Commercial Automobile Liability (owned, non -owned, hired): $1,000,000 (one million dollars) combined single limit per occurrence for comprehensive Commercial Automobile Liability coverage including bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting therefrom. (c) Professional Liability: $1,000,000 (one million dollars) limit for claims arising out of professional services and caused by the Contractor's errors, omissions, or negligent acts. (d) Commercial Umbrella Liability Coverage: $2,000,000 (two million dollars) per occurrence shall be provided and will apply over all liability policies, without exception, including but not limited to Commercial General Liability, Commercial Automobile Liability, Employers' Liability, and Professional Liability. (3) Deductibles and Self -Insured Retentions: Any deductibles or self-insured retentions must be declared to and approved by the City in writing so that the City may ensure the financial solvency of the Contractor; self-insured retentions should be included on the certificate of insurance. (4) Other Insurance Provisions: The policy shall contain, or be endorsed to contain, the following provisions: (a) General Liability, Automobile Liability, Professional Liability and Umbrella Liability Coverage: (i) Additional Insured Requirement. The City and its elected and appointed officials, officers, boards, commissions, employees, representatives, consultants, servants, agents and volunteers (individually "Insured Party" and collectively "Insured Parties") 3 shall be named as additional insureds as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, leased, or used by the Contractor; automobiles owned, leased, hired, or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the Insured Parties. Nothing contained in this section shall be construed to require the Contractor to provide liability insurance coverage to any Insured Party for claims asserted against such Insured Party for its sole negligence. (ii) Primary Insurance Requitement. The Contractor's insurance coverage shall be primary noncontributing insurance as respects to any other insurance or self-insurance available to the Insured Parties. Any insurance or self-insurance maintained by the Insured Parties shall be in excess of the Contractor's insurance and shall not contribute with it. (iii) Reporting Requirement. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Insured Parties. (iv) Separate Coverage. Coverage shall state that the Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to limits of insurance provided. (v) Defense Costs/Cross Liability. Coverage shall be provided on a "pay on behalf' basis, with defense costs payable in addition to policy limits. There shall be no cross liability exclusion. (vi) Subrogation. The insurer shall agree to waive all rights of subrogation against the Insured Parties for losses arising from Work performed by the Contractor for the City. (vii) Endorsements. All endorsements to policies shall be executed by an authorized representative of the insurer. (b) Workers' Compensation Coverage: The insurer will agree to waive all rights of subrogation against the Insured Parties for losses arising from Work performed by the Contractor for the City. (c) All Coverages. (i) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. 0 (ii) Policies shall have concurrent starting and ending dates. (iii) Policies shall include an endorsement incorporating the Indemnification obligations assumed by the Contractor under the terms of this Agreement, including but not limited to Section 7(I) of this Agreement. (5) Acceptability of Insurers: The insurance to be maintained by Contractor must be issued by a company licensed or approved by the Insurance Commissioner to transact business in the State of Georgia. Such insurance shall be placed with insurers with an A.M. Best Policyholder's rating of no less than "A-" and with a financial rating of Class VII or greater. The Contractor shall be responsible for any delay resulting from the failure of its insurer to provide proof of coverage in the prescribed form. (6) Verification of Coverage: Contractor shall furnish the City with certificates of insurance and endorsements to the policies evidencing all coverage required by this Agreement along with the declarations page for each insurance policy listed on the certificate of insurance prior to submission of this Agreement to the City for execution and must be approved by the City before commencement of the Work. Without limiting the general scope of this requirement, Contractor is specifically required to provide an endorsement naming the City as an additional insured when required. The certificates of insurance and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf, unless alternate sufficient evidence of their validity and incorporation into the policy is provided. The certificates of insurance, endorsements and declarations page shall be furnished on a form utilized by Contractor's insurer in its normal course of business. The City reserves the right to require complete, certified copies of all required insurance policies at any time. The Contractor shall provide proof that any expiring coverage has been renewed or replaced at least two (2) weeks prior to the expiration of the coverage. (7) Subcontractors: Contractor shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated in this Agreement, including but not limited to naming the Insured Parties as additional insureds. (8) Claims -Made Policies: Contractor shall extend any claims -made insurance policy for at least six (6) years after termination or final payment under the Agreement, whichever is later, and have an effective date which is on or prior to the date of the Contractor's initial contract date with the City. (9) City as Additional Insured and Loss Payee: The City shall be named as an additional insured and loss payee on all policies required by this Agreement. E. Licenses Certifications and Permits; Legal Compliance: Contractor covenants and declares that it has obtained and will maintain all diplomas, certificates, licenses, permits or the like required by any national, state, regional, City, and local boards, agencies, commissions, committees or other regulatory bodies to perform the Work. The Contractor shall comply with all applicable local, state and federal requirements, 9 including all laws, rules and regulations of any governmental entity pertaining to its performance under this Agreement. F. Ownership of Work: All reports, drawings, specifications, and other items prepared or in the process of being prepared for the Work by Contractor ("materials") shall be the property of the City and the City shall be entitled to full access and copies of all materials. All copyrightable subject matter in all materials is hereby assigned to the City and Contractor agrees to execute any additional documents necessary to evidence such assignment. G. Contractor's Representative: Mr. Ron Seitz shall be authorized to act on Contractor's behalf with respect to the Work as Contractor's designated representative. H. Confidentiality: Contractor acknowledges that it may receive confidential information of the City and that it will protect the confidentiality of any such confidential information and will require any of its subcontractors, consultants, and/or staff to likewise protect such confidential information. L Meetings: Contractor shall meet with City's personnel or designated representatives to resolve technical or contractual problems that may occur during the term of the contract, at no additional cost to City. J. Acknowledgement of Ethical Restrictions: Further, the Contractor and the City acknowledge that it is prohibited for any person to offer, give, or agree to give any City employee or official, or for any City employee or official to solicit, demand, accept, or agree to accept from another person, a gratuity of more than nominal value or rebate or an offer of employment in connection with any decision, approval, disapproval, recommendation, or preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to any program requirement or a contract or subcontract, or to any solicitation or proposal therefor. The Contractor and the City further acknowledge that it is prohibited for any payment, gratuity, or offer of employment to be made by or on behalf of a sub -consultant under a contract to the Contractor or higher tier sub -consultant, or any person associated therewith, as an inducement for the award of a subcontract or order. Section 7. Warranty: Contractor shall repair all defects in materials, equipment, or workmanship appearing within one year from the date of completion of the Work at no additional cost to the City. Section 8. Termination: The City may terminate this Agreement for convenience at any time upon written notice to Contractor. Provided that no damages are due to the City for Contractor's breach of this Agreement, the City shall pay Contractor for Work performed to date in accordance with Section 5 herein. Section 9. Standard of Care: Contractor shall comply with applicable legal requirements and meet the standard of quality ordinarily expected of its industry. Any additional work or costs incurred as a result of error and/or omission by Contractor as a result of not complying with the Contract Documents or not meeting the applicable standard of care or quality will be provided at Contractor's expense and at no additional cost to the City. This provision shall survive termination of this Agreement. Section 10. Expertise of Contractor: The Contractor accepts the relationship of trust and confidence established between it and the City, recognizing that the City's intention and purpose in entering into this Agreement is to engage an entity with the requisite capacity, experience, and professional skill and G judgment to provide the services in pursuit of the timely and competent completion of the Work undertaken by Contractor under this Agreement. Section 11. Miscellaneous A. Governing Law. This Agreement shall be governed by the laws of the State of Georgia. Any action or suit related to this Agreement shall be brought in the Superior Court of Fulton County, Georgia, and the Contractor submits to the jurisdiction and venue of such court. B. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. C. Sovereign Immunity. Nothing contained in this Agreement shall be construed to be a waiver of the City's sovereign immunity or any individual's qualified good faith or official immunities. D. Employment of Unauthorized Aliens Prohibited: (1) E -Verify Affidavit It is the policy of the City of Milton that unauthorized aliens shall not be employed to perform work on City contracts involving the physical performance of services. Therefore, the City shall not enter into a contract for the physical performance of services unless: (1) the Contractor shall provide evidence on City -provided forms, attached hereto as Exhibits "C" and "D" (affidavits regarding compliance with the E -Verify program to be sworn under oath under criminal penalty of false swearing pursuant to O.C.G.A. § 16-10-71), that it and Contractor's subcontractors have registered with, are authorized to use and use the federal work authorization program commonly known as E -Verify, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A. § 13-10-91, and that they will continue to use the federal work authorization program throughout the contract period, or (2) the Contractor provides evidence that it is not required to provide an affidavit because it is licensed pursuant to Title 26 or Title 43 or by the State Bar of Georgia and is in good standing as of the date when the contract for services is to be rendered. The Contractor hereby verifies that it has, prior to executing this Agreement, executed a notarized affidavit, the form of which is provided in Exhibit "C", and submitted such affidavit to City or provided the City with evidence that it is not required to provide such an affidavit because it is licensed and in good standing as noted in subsection (2) above. Further, Contractor hereby agrees to comply with the requirements of the federal Immigration Reform and Control Act of 1986 (IRCA), P.L. 99-603, O.C.G.A. § 13-10-91 and Rule 300-10-1-.02. In the event the Contractor employs or contracts with any subcontractor(s) in comiection with the covered contract, the Contractor agrees to secure from such subcontractor(s) attestation of the subcontractor's compliance with O.C.G.A. § 13-10-91 and Rule 300-10-1-.02 by the subcontractor's execution of the subcontractor affidavit, the form of which is attached hereto as Exhibit "D", which subcontractor affidavit shall become part of the contractor/subcontractor agreement, or evidence that the subcontractor is not required to provide such an affidavit because it is licensed and in good standing as noted in subsection (2) above. If a subcontractor affidavit is 7 obtained, Contractor agrees to provide a completed copy to the City within five (5) business days of receipt from any subcontractor. Where Contractor is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the City Manager or his/her designee shall be authorized to conduct an inspection of the Contractor's and Contractor's subcontractors' verification process at any time to determine that the verification was correct and complete. The Contractor and Contractor's subcontractors shall retain all documents and records of their respective verification process for a period of five (5) years following completion of the contract. Further, where Contractor is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the City Manager or his/her designee shall further be authorized to conduct periodic inspections to ensure that no City Contractor or Contractor's subcontractors employ unauthorized aliens on City contracts. By entering into a contract with the City, the Contractor and Contractor's subcontractors agree to cooperate with any such investigation by making their records and personnel available upon reasonable notice for inspection and questioning. Where a Contractor or Contractor's subcontractors are found to have employed an unauthorized alien, the City Manager or his/her designee may report same to the Department of Homeland Security. The Contractor's failure to cooperate with the investigation may be sanctioned by termination of the contract, and the Contractor shall be liable for all damages and delays occasioned by the City thereby. Contractor agrees that the employee -number category designated below is applicable to the Contractor. [Information only required if a contractor affidavit is required pursuant to O.C.G.A. § 13-10-91.] 500 or more employees. 100 or more employees. Fewer than 100 employees. Contractor hereby agrees that, in the event Contractor employs or contracts with any subcontractor(s) in connection with this Agreement and where the subcontractor is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the Contractor will secure from the subcontractor(s) such subcontractor(s') indication of the above employee -number category that is applicable to the subcontractor. The above requirements shall be in addition to the requirements of State and federal law, and shall be construed to be in conformity with those laws. E. Nondiscrimination. In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and all other provisions of Federal law, the Contractor agrees that, during performance of this Agreement, Contractor, for itself, its assignees and successors in interest, will not discriminate against any employee or applicant for employment, any subcontractor, or any supplier because of race, color, creed, national origin, gender, age or disability. In addition, Contractor agrees to comply with all applicable implementing regulations and shall include the provisions of this Section E in every subcontract for services contemplated under this Agreement. F. Authority to Contract. The Contractor covenants and declares that it has obtained all necessary approvals of its board of directors, stockholders, general partners, limited partners or similar authorities to simultaneously execute and bind Contractor to the terms of this Agreement. G. Amendments in Writing. No amendment to this Agreement shall be effective unless it is in writing and signed by duly authorized representatives of the parties. H. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter contained herein; all prior agreements, representations, statements, negotiations, and undertakings are suspended hereby. Neither party has relied on any representation, promise, nor inducement not contained herein. Should any article(s) or section(s) of this Agreement, or any part thereof, later be deemed illegal, invalid or unenforceable by a court of competent jurisdiction, the offending portion of this Agreement should be severed, and the remainder of this Agreement shall remain in full force and effect to the extent possible. I. No Personal Liability. No member, official or employee of the City shall be personally liable to the Contractor or any successor in interest in the event of any default or breach by the City or for any amount which may become due to the Contractor or successor or on any obligation under the terms of this Agreement. Likewise, the Contractor's performance of services under this Agreement shall not subject the Contractor's individual employees, officers or directors to any personal liability. The parties agree that their sole and exclusive remedy, claim, demand or suit shall be directed and/or asserted only against the Contractor or the City, respectively, and not against any employee, officer, director, or elected or appointed official. J. Successors and Assigns. Subject to the provision of this Agreement regarding assignment, each party binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives with respect to all covenants, agreements, and obligations contained in the Contract Documents. K. Waiver of Agreement. The City's failure to enforce any provision of this Agreement or the waiver in a particular instance shall not be construed as a general waiver of any future breach or default. L. Notices. All other notices, writings or correspondence as required by this Agreement shall be in writing and shall be deemed received, and shall be effective, when: (1) personally delivered, or (2) on the third day after the postmark date when mailed by certified mail, postage prepaid, return receipt requested, or (3) upon actual delivery when sent via national overnight commercial carrier to the party at the addresses stated at the beginning of this Agreement, unless a substitute address shall first be furnished to the other party by written notice in accordance herewith. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed under seal as of the date first above written. [SIGNATURES ON NEXT PAGE] 9 Design -Build Solutions, Inc./The Garland Company, Inc., dba Garland/DBS, Signature Print Name Date Title (President or Vice President for Corporation) Attest: [CORPORATE SEAL] Signature, /f d �c b sorb Print Name Title ((Assistant) Corporate Secretary) Attest: ! �, L'6k Signature Sud e- /m 6tY4- l Print Name City Clerk Title City of Milton, Georgia Joe Lockwood, Mayor Signature Date 10 EXHIBIT "A" Scope of Work Contractor shall perform all tasks required to repair the roof, install gutters and repair the interior damage to the Thomas Byrd Sr. House as defined in the report "Senior Center Roof Assessment" Report prepared by Blake McClendon of The Garland Company, Inc. and the "Roofing Material and Services" Report prepared by Ron Seitz of The Garland Company, Inc. The specific scopes of work to be included are defined in the Senior Center Roof Assessment as "Leak Repair Option B", "New Gutter, Downspouts and Drainage" and "Interior Damage Repair Scope of Work". R A M Senior Center Roof Assessment By Blake McClendon Jim Cregge and Robert Buscemi Table of Contents Milton Senior Center / Facility Summary Milton Senior Denten / Standing Seam Metal Roos/ Construction Details ............ 4 Milton Senior Center/ Standing Seam Metal Roof/ Roof Section Photo ......... 5 Milton Senior Denten/ Standing Seam Metal Roof/ Roofs Section Drawing ................6 Milton Senior Center/ Standing Sean Metal Roof/ photo Report: Dec 1, 2015 -Leak Area Report _ _ _ _ _ _ _ _ _ _ _ ............... i City of Milton Budget pricing Doc.pd_ _ _ _ _ _ ................. 11 Milton Senior Center Standing Seam Metal Rood/ Solution: Dec 29 2015 .................... 16 Facility Summary since 1 895 Client: City of Milton Facility: Milton Senior Center Data Address 1 15690 Hopewell Rd Address 2 - City Milton State Georgia ZIP 30004 Type of Facility Municipal Contact Person Jim Cregge Asset I nformati on Name Date Installed Square Footage Roof Access Standing Seam Metal Roof Ladder Needed Facility Summary Page 3 of 18 Client: City of Milton Facility: Milton Senior Center Roof Section: Standing Seam Metal Roof Information Year Installed - Slope Dimension - Roof Access Ladder Needed Construction Details Square Footage - Eave Height 15 System Type Metal Construction Details Page 4 of 18 No Text No Text since 1895 Client: City of Milton Facility: Milton Senior Center Roof Section: Standing Seam Metal Roof Photo Report Report Date 12/01/2015 Title Leak Area Report Photo 1 Pricing was requested to install new half -round gutter and downspout on the front eave of the building. Photo 2 The new gutter and downspout will go from this corner to the opposite. On this side it will drain directly into the drain at the bottom of the photo. On the opposite side it will drain into a new inground drainage pipe. Photo Report: Dec 9, 2015 - Leak Area Report Page 7 of 18 Photo 3 New in -ground drainage pipe will be installed here on this downspout as well and ran away from the building. Photo 4 The new drainage will start here. Photo 5 The interior damage from the active leak on the roof. Photo Report: Dec 1, 2015 - Leak area Report page 8 o1 18 IIIIIIIIIIIIIIIIIIN f Photo 6 The ceiling was cut open during the water test to confirm the leak entry point. Photo 7 An overview of the cricket and the leak area. The red panels are an R - Panel exposed fastener style metal roof system and the silver is a concealed clip standing seam metal style panel. Photo 8 This is the valley that was confirmed as the leak entry point during the water test. Photo 9 There are large open laps and holes on this valley due to previous contractors and work completed. Photo Report: Dec 9, 2015 - Leah Area Report Page 9 of 18 Photo 10 Another hole for water penetration. Photo 11 The peak of the valley is also a vulnerable point. Photo Report: Dec 1, 2015 - Leak Area Reoorf Page 10 o118 No Text - --Mft— — `- Aw_ *4+a=. ,�.• `� _ tic ,I'y This is a close up of the existing ?''� : downpout from the photo above. The existing inground drainage is obsolete and will be left in the ground Y New half -round downspout here as well draining left and down with the downspout ending with an elbow pointed toward the drain there Approx. 30' New section of half - round gutter here with downspout here and tie into the r' new inground I!� drainage shown in the first photo INewgutter 'TIM— with DS ending here ltoward drain inground I for. since 1895 Client: City of Milton Facility: Milton Senior Center Roof Section: Standing Seam Metal Roof Solution Option: Repair Square Footage: - Budget: - Solution Options Action Year. 2015 Expected Life Years: - Leak Repair Option A 1. Clean all previous repair materials off the metal in the leak repair area. This includes, the valley, the rake edge, the exposed fasteners within 10' of the leak area. 2. Seal all exposed fasteners with a red urethane sealant. 3. Replace/seal all broken or missing fasteners in the leaking area. 4. Seal all cricket ridge laps using a silver urethane sealant. 5. Seal the transition between the red roof and the silver valley metal using a urethane coating reinforced with a polyester fabric. 6. Seal all valley metal joints with the same repair materials. 7. Provide a one year labor warranty on the leak in this area. 8. Remove all debris from the site. Budget: $2,500.00 Leak Repair Option B 1. Remove the existing metal panels on the silver roof cricket and the red panels on the main roof, on both sides of the leaking valley metal. This included the ridge cap, rake edge, and panels. 2. Remove the existing valley metal. 3. Replace damaged would up to $500 in the project. If additional is needed, it will be approved beforehand and will be at additional costs of $3 per Inft. 4. Install a new self stick Ice and Water Shield over the existing decking. The ice and water shield will be terminated approx 16" on each side of the valley and will cover the valley as well. 5. Install newvalley metal over the new Ice and Water using 24 gauge Kynar coated metal in a similar color to what is removed. 6. Install a water proofing sealant between the newvalley metal and the roof panels when they are reinstalled. 7. Re -install the existing silver and red metal panels. 8. Provide the customer with a 1 yr labor warranty on the leak in this area. This is standard in the industry when tie-ing into the existing and surrounding materials of the existing roof. 9. Remove all repair materials from the site. Budget: $8,100.00 Solution: Dec 2, 2015 Page 16 of 19 New Gutter, Downspouts, and Underground Drainage 1. Dig a new trench from the two identified downspouts to approx 30' away from the building. 2. Install a new black drainage pipe from the two identified downpsouts and run it throughout the 70' of internal drainage. 3. Connect the existing rear downspout next to the stairs, on the right side of the building. 4. Connect the new pipe to the new downspout that will be installed on the front right eave of the building as requested. 5. Install new half round gutter and downspouts on the front eave of this building. 6. Follow the attached report/drainage for exact direction on application. 7. Remove all repair debris form the site. Budget: $3,300.00 Interior Damage Repair Scope of Work: 1. Remove all damaged and molded sheetrock from the leak area on both sides of the doorway. 2. Remove all damaged insulation from the leak area on both sides of the doorway. 3. Remove the delaminating floor tiles from the door wall to approx 4' away from the wall. 4. Cutout and replace the molded floor boards and any molded wood in the walls. 5. Install new insulation in the areas where it was removed. 6. Install new sheetrock to a like height as the existing on both walls and the ceiling in the leak area. 7. Tape, mud, sand, and paint the repaired area with a paint match as close as possible. Where possible the paint will go to an angle change to blend in. 8. Install new floor tiles similar to the existing using adhesive. 9. Provide a one year craftsmanship warranty on all new work installed. 10. Remove all debris from the site. Budget: $2,999.00 Full Roof Restoration Scope of Work 1. Remove all previous repair materials from the roof. 2. Seal all exposed roof fasteners with a urethane sealant. This will not only seal the fasteners but it locks them in place and prevents them from backing out. 3. Seal all valley laps and r -panel laps using a butyl tape with a fabric backing. Coat the fabric backing with a liquid applied coating. 3. Seal all penetrations using the liquid applied coating and reinforcing fabric. 4. Repair and seal all cracks/breaks in the metal ribs. This will sealed with the butyl fabric tape and coated. 5. Seal all rake edges with like materials and steps. 6. Remove and replace all loose or missing fasteners with a larger screw to ensure a watertight seal. 7. Coat the entire roof surface using a urethane top coat in a color matched to the existing metal color. 8. Provide a 2 year labor warranty from the contractor. 9. Provide a 10 year leak free, labor and materials warranty from Garland. Budget Costs: $29,000.00 - $39,000.00 Leak Repair Option A is recommended for the leak repair because it is more economical, less intrusive to the building and now that a water test was succesfull, we are confident that a long term surface repair will fix this leak. Taken apart all of that standing seam metal ad valley could be opening a larger problem and once its removed there is no stopping. It could be more detrimental to the panels by handling them so much during the removal and reinstallation On both repair options, only a 1 yr leak free warranty can be provided because the repairs would be tie-ing into the existing surrounding metal roof which also indicated some maintenance needs during the inspection. A budget restoration price was also givenjust above to show what it might cost for a 10 year leakfree warranty roof Solution: Dec 2, 2015 Page 17 of 18 would look like cost wise. Please let me know what questions you have, Thanks, Blake McClendon The Garland Company 678-332-6169 Solution: Dec 2, 2015 Page 18 of 18 EXHIBIT "B" Insurance Certificate A`C(:>Rr�® \ar_..►". CERTIFICATE OF LIABILITY INSURANCE DATE (12016 YYYY) 01114/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Marsh USA, Inc. 4400 Comerica Bank Tower CONTACT NAME: IFAX A ONE No. Ext): AIC No): E-MAIL ADDRESS: 1717 Main Street Dallas, TX 75201-7357 Attn: dallas.certs@marsh.com INSURERS AFFORDING COVERAGE NAIC # INSURER A: Ironshore Specialty Ins. Company 25445 CN102137489--DBS-15-16 INSURED Garland/DBS, Inc. 3800 East 91st Street INSURER B : Travelers Indemnity Co 25658 INSURER C: Liberty Insurance Underwriters Inc. 19917 INSURER D: Travelers Property Casualty Company of America 25674 Cleveland, OH 44105 INSURER E; Hartford Fire Insurance Company 19682 INSURER F: A AGE ctcur ence $ 500,000 PREM SESOEa occurrence) COVERAGES CERTIFICATE NUMBER: HOU-002734402-01 REVISION NUMBER:1 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF MMIDD/YYYY POLICY EXP MM/DD LIMITS A X COMMERCIAL GENERAL LIABILITY 002589900 12/05/2015 12/05/2016 EACH OCCURRENCE $ 1,000,000 CLAIMS -MADE M OCCUR A AGE ctcur ence $ 500,000 PREM SESOEa occurrence) MED EXP (Any one person) $ 10,000 X SIR -$100,000 PERSONAL & ADV INJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 POLICY � PE� 7 LOC PRODUCTS - COMP/OP AGG $ 2,000,000 $ OTHER: B AUTOMOBILE LIABILITY 610 -5G239979 -IND -15 12/05/2015 12/05/2016 COEa accMBINED SINGLE LIMIT ident $ 1,000,000 BODILY INJURY (Per person) $ X ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS BODILY INJURY (Per accident) $ X HIRED AUTOS AUTOS Per accident C UMBRELLA LIAB X OCCUR 1000021688-06 12/05/2015 12105/2016 EACH OCCURRENCE $ 5,000,000 AGGREGATE $ 5,000,000 X EXCESS LIAB CLAIMS -MADE DED I I RETENTION $ $ D WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? N (Mandatory in NH) N I A UB -5G220236-15 12/05/2015 12/05/2016 X PER oTH- STATUTE ER E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE -EA EMPLOYEE $ 1,000,000 If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ 1,000,000 E Inland Marine 83 MS W9553 K3 (Ded: $50,000) 12/05/2015 12105/2016 Installation Floater 900,000 E Inland Marine 83 MS W9553 K3 (Ded: $2,500) 12/05/2015 12105/2016 Leased/Rented Equip 100,000 DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Certificate Holder is included as additional insured where required by written contract with respect to General Liability and Auto Liability. CERTIFICATE HOLDER CANCELLATION City of Milton SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE 13000 Deerfield Parkway- Suite 107F THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Milton, GA 30004 ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE of Marsh USA Inc. Manashi Mukherjee �La�ri crrs ► rd �, l��ua s r @ 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014101) The ACORD name and logo are registered marks of ACORD orrc�� AGENCY Marsh USA, Inc. POLICY NUMBER CARRIER WDITIONAL REMARKS AGENCY CUSTOMER ID: CN102137489 LOC #: Dallas ADDITIONAL REMARKS SCHEDULE NAIC CODE NAMEDINSURED Garland/DBS, Inc. 3800 East 91st Street Cleveland, OH 44105 EFFECTIVE DATE: THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: Certificate of Liability Insurance Other property deductibles may apply as per policy terms and conditions. Page 2 of 2 ACORD 101 (2008/01) © 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD EXHIBIT "C" CONTRACTOR AFFIDAVIT AND AGREEMENT QA// b STATE OF COUNTY OF By executing this affidavit, the undersigned contractor verifies its compliance with O.C.G.A. § 13-10-91, stating affirmatively that the individual, firm, or corporation which is engaged in the physical performance of services on behalf of the City of Milton has registered with, is authorized to use and uses the federal work authorization program commonly known as E -Verify, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A. § 13-10-91. Furthermore, the undersigned contractor will continue to use the federal work authorization program throughout the contract period and the undersigned contractor will contract for the physical performance of services in satisfaction of such contract only with subcontractors who present an affidavit to the contractor with the information required by O.C.G.A. § 13-10-91(b). Contractor hereby attests that its federal work authorization user identification number and date of authorization are as follows: eVerify Number jo-ISI-o?o/Y/ Date of Authorizatiory G9 �? 14 •� /� CS.S, ac Name of Contractor Emergency Roof Repairs at the Thomas B r House Name of Project City of Milton Name of Public Employer I hereby declare under penalty of perjury that the foregoing is true a d correct. Executed on j , 201 G in (city), Cl/—/6 (state). Signature of Authorized Officer or Agent Printed Name and Title of Authorized Officer or Agent 6O's+iQo l k, P, SUBSCRIBED ASID SWORN BEFORE ME ON THIS THE [_� DAY OF ,201 G NOTAW PUBLIC ��,•,� k [NOTARY SEAL] My Commission Expires: ii _s' • mai G �1 .1 NETTS '*% Io �J rZ �k#�r,ra�rrr�t Heidi Jeanette Dobson STATE OF OHIO County of Cuyahoga My Commission Expires 11-5.2016 EXHIBIT I'D" ,SUBCONTRACTOR AFFIDAVIT STATE OF t;EORGIA COUNTY OF _ f 6_6_ By executing this aff7davit, the undersigned subcontractor verifies its compliance with O.C.G.A. § 13-10-91, statin' aff'umiatively that the individual, firin or corporation t,hich is engaged in the physical performance of services under a contract with Design -Build Solutions, inc. on behalf' of the City of kliiton has registered with, is aUdiorized to use and uses the federal work authorization pro ram coulillonly l.nni'n as L:-Vcrif}, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A. 13-iO-91. furthermore, the undersigned subcontractor will continue to use the federal work authorization 11rogranl 1111-00«lrout the contract period, and the undersigned subcontractor will contact for the physical performance of services in satisfaction of such contract only with sub -subcontractors who present an affidavit to the subcontractor with the information required by O.C.G•A• § 13-10-91(b). Additionally, the undersigned subcontractor will forward notice of life receipt of in affidavit front a sub -subcontractor to the contractor within five (5) business days of receipt. If the undersigned subcontractor receives notice that a sub -subcontractor has received an affidavit fi•om any other contracted sub -subcontractor, the undersigned subcontractor must forward, within five (5) business days of receipt, a copy of the notice to the contractor. Subcontractor hereby attests that its federal .voik authorization user identification number and date of authorization are as follows: g3IZ67 _ eVerify Number Date of Authorization Afq T60 Cr coa, LLC . NaniJ of St bcontractor Emergency Roof Repairs a1the Thomas Bti'r_ii Sr. I_jguse Name of Project Citv of Milton Name of Public Employer MONICA MILLER NOTARY PUBLIC Crawford County State of Georgia My Comm. Expires Mar. 18, 2019 I hereby declare under penalty of perjury that the foregoing is true and correct. Executed on //AA/ , j:;, 201 (v in (city), (state). {st'gs"nature of Authorized Officer or Agent CV �.61yy15 Printed Name and Title of Authorized Officer or Agent SUBSCRIBED AND SWORN BEFORE IviE ON THiS THE � DAY OF �Czr? 201 NPTARY PUBLIC [NOTARY SFAL1 JIy Commilissiorl Expires: J /� �C Corporate Resolution to Ratify Act WHEREAS, David M. Sokol, as President of Garland Industries, Inc. and acting on behalf of Design - Build Solutions, Inc. (DBS) is a subsidiary of Garland Industries, Ine. and be it: RESOLVED, that Garland Industries, Inc. authorizes Prank Pereaciante, Controller, to sign bonds and bind the companies of Design -Build Solutions, Inc. (DBS), Garland/D13S, Inc., and 'file Garland Company, DBA: Design -Build Solutions, Inc. and Garland Industries, Inc. The undersigned hereby certifies that lie is the duty elected President of Garland Industries, Inc., a company duly formed pursuant to the laws of the State of Ohio, and that the foregoing is a true record of a resolution adapted on Deceniber 10, 2008 in accordance with the bylaws of Garland industries, Inc., and that said resolution is now in full force and effect without modification or rescission. IN '4.4'ITNESS WHEREOF, I have Corporate Seal of the above -names AR/3.�llm G. &3ej &?L Sworn to and subscribed before me this ted my name as-1fresident and jave hereunto affixed the ion on this day of , 2014. L0 day of , 2014. i No Public conn tt1 �5 S: Y 11,'IPt�1��1IN Attorney at law Notary Public, State of Ohio MY Commission has no expiration dale. Section 147.03 O.R.C. HOME OF ' ESTABLISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: January 26, 2016 FROM: City Manager AGENDA ITEM: Approval of a Construction Services Agreement between the City of Milton and Strickland Pipeline and Construction, Inc. for "Thompson Road Stormwater System Improvements (Emergency Repairs)" MEETING DATE: Monday, February 1, 2016 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: APPROVED (J NOT APPROVED CITY ATTORNEY APPROVAL REQUIRED: w YES () NO CITY ATTORNEY REVIEW REQUIRED: K YES () NO APPROVAL BY CITY ATTORNEY k APPROVED (J NOT APPROVED PLACED ON AGENDA FOR: 0 2. O 1 1 (o REMARKS ® You0 PHONE: 678.242.25001 FAX: 678.242.2499 " ' Gr- eean° *Certified* infoftityofmiltonga.us 1 www.cityofmiltonga.us "P"�'.' Community 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 ""'"' To: Honorable Mayor and City Council Members From: James Seeba, Stormwater Engineer, Public Works Department Date: Submitted on January 26, 2016 for the February 1, 2016 Regular Council Meeting Agenda Item: Approval of a Construction Services Agreement between the City of Milton and Strickland Pipeline and Construction, Inc. for “Thompson Road Stormwater System Improvements (Emergency Repairs)”. ____________________________________________________________________________ Department Recommendation: Approval. Executive Summary: This project generally consists of repairs to the road shoulder and drainage improvements along a segment of Thompson Road. The existing road shoulder is eroding and has endangered the stability of the road embankment. Repairs will include drainage improvements and grading along the road shoulder. Correcting this problem will allow drainage to flow into existing stormwater structures and provide protection for the affected properties. This is an emergency repair situation. Staff negotiated a scope and price with a local contractor (Strickland Pipeline and Construction, Inc.) that has successfully completed a number of projects for the City. Staff is recommending approval of a Construc tion Services Agreement with Strickland Pipeline and Construction, Inc. in the amount of $8,000.00. Firm Bid Strickland Pipeline & Construction, Inc. $8,000.00 Funding and Fiscal Impact: Funding for this project is available in the Public Works Stormwater Maintenance budget in the Public Works Department. Alternatives: There are no alternatives to this project. Concurrent Review: Chris Lagerbloom, City Manager Attachment(s): Construction Services Agreement HOME OF'THE 8E ST QUALITY OF LIFE IN GEORGIA' MILTON .tr ESTABLISHD 1006 CONSTRUCTION SERVICES AGREEMENT FOR THOMPSON ROAD (14875) STORMWATER SYSTEM IMPROVEMENTS This Agreement (the "Agree ent") to provide sidewalk improvements is made and entered into this 1 `i qday of , , 2016, by and between the CITY OF MILTON, a municipal corporation of the State of Georgia, acting by and through its governing authority, the Milton City Council (hereinafter referred to as the "City"), Strickland Pipeline and Construction, INC. (hereinafter referred to as the "Contractor") having its principal place of business at 2933 Lower Union Hill Road, Canton, Georgia 30115. WITNESSETH: WHEREAS, the City issued an Invitation to Bid for the Thompson Road (14875) Stormwater System Improvements; and WHEREAS, based upon Contractor's bid to complete these drainage improvement, as required by the bid documents, the City has selected Contractor as the winning bidder, and WHEREAS, Contractor has agreed to perform such work as set forth in this Agreement, according to the terms and conditions provided in this Agreement; and WHEREAS, Contractor has familiarized itself with the nature and extent of the Contract Documents, the Project, and the Work, with all local conditions and federal, state and local laws, ordinances, rules and regulations in any manner that may affect cost, progress or performance of work, and Contractor is aware that he must be licensed to do business in the State of Georgia. NOW THEREFORE, the City and Contractor, in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency of which is hereby acknowledged, agree as follows. Section I Contract Documents The following documents are incorporated herein by reference and constitute the Contract Documents: A. This Agreement (18 Pages), B. Invitation to Bid ITB (7 Pages), attached hereto as Exhibit "A"; C. Bid from Contractor dated January 7, 2016 (1 Page), attached hereto as Exhibit 7 D. Performance and Other Bonds, attached hereto collectively as Exhibit "C"; E. Non -collusion Affidavit of Prime Proposer, attached hereto as Exhibit "D", F. Contractor Affidavit and Agreement, attached hereto as Exhibit "E"; G. Subcontractor Affidavit, attached hereto as Exhibit "F"; H. Plans and specifications, attached hereto collectively as Exhibit "G", I. Final Affidavit, attached hereto as Exhibit "H", J. The following which may be delivered or issued after the Effective Date of the Agreement and are not attached hereto: All Written Amendments and other documents amending, modifying, or supplementing the Contract Documents if properly adopted in writing and executed by the Parties; and K. City of Milton Code of Ethics. In the event of any discrepancy among the Contract Documents, that provision that inures most to the benefit of the City, as determined by the City in its sole discretion, shall govern. Section 2 Project Description. The scope of this project generally consists of the installation of a storm drain pipe, grading and shoulder improvements along a segment of the right-of-way on the east side of Thompson Road. Section 3 The Work I The Work is specified and indicated in the Contract Documents (the "Work"). In the event of any discrepancy among the Contract Documents, the provision operating most to the benefit of the City, as determined by the City in its sole discretion, shall govern. The Work previously described includes all material, labor, insurance, tools, equipment, and any other miscellaneous items necessary to complete the Work as described. Contractor shall complete the Work in strict accordance with the Contract Documents. Section 4 Contract Time This Contract shall take effect oriJ f �4tractor agrees to complete the Project within 30 calendar days from the date of Notice to Proceed. Every effort will be made by Contractor to shorten this period. Section 5 Contractor's Compensation; Time and Method of Payment A. The total amount paid under this Agreement shall not, in any case, exceed $8,000.00 except as outlined in Section 6 below. City agrees to pay the Contractor for the work upon certification by the City that the Work was actually performed and costs actually incurred in accordance with the Agreement. This amount shall include all use, lease, or other taxes, and all expenses for personnel and equipment (including fuel) that Contractor will incur to provide the Work. Unless otherwise agreed in writing signed by both Parties, the compensation payable by the City to Contractor is limited to the price amount set forth in the Proposal Submittal Form, and City will not pay any other sum attributable to taxes, costs or expenses that Contractor may incur in providing the Work. B. Compensation for Work performed shall be paid to the Contractor upon receipt and approval by the City of invoices setting forth in detail the Work performed. Invoices shall be submitted on a monthly basis, and such invoices shall reflect charges incurred versus charges budgeted. Each invoice shall be accompanied by an Interim Waiver and Release upon Payment (or a Waiver and Release upon Final Payment in the case of the invoice for final payment) procured by the Contractor from all subcontractors in accordance with O.C.G.A. § 44-14-366. C. City and Contractor shall comply with the provisions of O.C.G.A. § 13-10-80. The Contractor through each invoice may request payment of no more than ninety percent (90%) of that portion of the Work completed during the term covered by such invoice until fifty percent (50%) of the Contract Price, as may be adjusted, is due and the manner of completion of the Work and its progress are reasonably satisfactory to the City. Payment for the remaining ten percent (10%) of Work completed and covered by such invoices shall be retained by the City until Final Completion. Once fifty percent (50%) of the Contract Price, as may be adjusted, is due and the manner of completion of the Work and its progress are reasonably satisfactory to the City, no additional retainage shall be withheld, except as provided below. At the discretion of the City and with the written approval of the Contractor, the retainage of each subcontractor may be released separately as the subcontractor completes his or her work. If, after discontinuing the retention, the City determines that the Work is unsatisfactory or has fallen behind schedule, retention may be resumed at the previous level. If retention is resumed by the City, the Contractor and subcontractors shall be entitled to resume withholding retainage accordingly. At Final Completion of the Work and as the City determines the Work to be reasonably satisfactory, the City shall, within 30 days after the invoice and other appropriate documentation as may be required by the Contract Documents are provided to the City, pay the retainage to the Contractor. If at that time there are 3 any remaining incomplete minor items, an amount equal to 200 percent of the value of each item as determined by the City shall be withheld until such item or items are completed. The reduced retainage shall be shared by the Contractor and subcontractors as their interests may appear. The Contractor shall, within ten (10) days from its receipt of retainage from the City, pass through payments to subcontractors and shall reduce each subcontractor's retainage in the same manner as the Contractor's retainage is reduced by the City; provided, however, that the value of each subcontractor's work complete and in place equals fifty percent (50%) of his or her subcontract value, including approved change orders and other additions to the subcontract value, provided, further, that the work of the subcontractor is proceeding satisfactorily and the subcontractor has provided or provides such satisfactory reasonable assurances of continued performance and financial responsibility to complete his or her work including any warranty work as the Contractor in his or her reasonable discretion may require, including, but not limited to, a payment and performance bond. The subcontractor shall, within ten (10) days from the subcontractor's receipt of retainage from the Contractor, pass through payments to lower tier subcontractors and shall reduce each lower tier subcontractor's retainage in the same manner as the subcontractor's retainage is reduced by the Contractor; provided, however, that the value of each lower tier subcontractor's work complete and in place equals fifty percent (50%) of his or her subcontract value, including approved change orders and other additions to the subcontract value; provided, further, that the work of the lower tier subcontractor is proceeding satisfactorily and the lower tier subcontractor has provided or provides such satisfactory reasonable assurances of continued performance and financial responsibility to complete his or her work including any warranty work as the subcontractor in his or her reasonable discretion may require, including, but not limited to, a payment and performance bond. Neither final payment nor any retained percentage shall become due until the Contractor submits to the City: (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the City or City property might be responsible or encumbered (less amounts withheld by City) have been paid or otherwise satisfied; (2) a certificate evidencing that insurance, required by the Contract Documents to remain in force after final payment, is currently in effect and will not be canceled or allowed to expire until at least 30 calendar days prior written notice has been given to the City; (3) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents; (4) consent of surety, if any, to final payment; (5) a release or waiver of liens, claims, security interests, and encumbrances by all subcontractors and material suppliers; and (6), if required by the City, other data establishing payment or satisfaction of obligations, such as receipts, to the extent and in such form as may be designated by the City. If a subcontractor or material supplier refuses to furnish a release or waiver as required by the City, the Contractor may 51 furnish a bond satisfactory to the City to indemnify the City against such lien. If such lien remains unsatisfied after payments are made, the Contractor shall refund to the City all money that the City may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees. Acceptance of final payment by the Contractor, a subcontractor or material supplier shall constitute a waiver of claims by that payee, except those claims previously made in writing and identified by that payee as unsettled at the time of final application for payment as long as the gross value of the completed work is less than 50% of the total contract amount and/or when satisfactory progress has not been achieved by the Contractor during any period for which payment is to be made, the City may retain a percentage of said payment, not to exceed ten percent (10%) of the maximum Contract Price to ensure performance of the Agreement. Said cause and progress shall be determined by the City, in its sole discretion, based on its assessment of any past performance of the Contractor and likelihood that such performance will continue. Upon completion of all contract requirements, retained amounts shall be paid promptly less any offsets or deductions authorized hereunder or by law. D. Any material deviations in tests or inspections performed, times or locations required to complete such tests or inspections and like deviations from the Work described in this Agreement shall be clearly communicated to the City before charges are incurred and shall be handled through change orders or construction change directives as described in Section 6 below. All invoices should be submitted to Honor Motes (Budget and Procurement Coordinator), for approval. The City shall pay the Contractor within thirty (30) days after approval of the invoice by the City. No payments will be made for unauthorized work. Payment will be sent to the designated address by U.S. Mail only; payment will not be hand -delivered. E. The City may withhold payment or final payment for reasons including, but not limited to, the following: unsatisfactory job performance or progress, defective work, disputed work, failure to comply with material provisions of the Agreement, third party claims filed or reasonable evidence that a claire will be filed or other reasonable cause. Section 6 Work Changes A. The City reserves the right to order changes in the Work to be performed under this Agreement by altering, adding to, or deducting from the Work. All such changes shall be incorporated in written change orders executed by the Contractor and the City. Such change orders shall specify the changes ordered and any necessary adjustment of compensation and completion time. If the Parties cannot reach an agreement on the terms for performing the changed work within a reasonable time to avoid delay or other unfavorable impacts as determined by the City in its sole discretion, the City shall have the right to determine reasonable terms and the Contractor shall proceed with the changed work. B. Any work added to the scope of this Agreement by a change order shall be executed under all the applicable conditions of this Agreement. No claim for additional compensation or extension of time shall be recognized, unless contained in a written change order duly executed on behalf of the City and the Contractor. C_ The City Manager has authority to execute without further action of the Milton City Council, any number of change orders so long as their total effect does not materially alter the terms of this Agreement or materially increase the total amount to be paid under this Agreement. Any such change orders materially altering the terms of this Agreement or increasing the total amount to be paid under this Agreement in excess of $5,000, must be approved by resolution of the Milton City Council. Section 7 Covenants of Contractor. A. Ethics Code Contractor agrees that it shall not engage in any activity or conduct that would be in violation of the City of Milton Code of Ethics. B. Time is of the Essence Contractor specifically acknowledges that TIME IS OF THE ESSENCE for completion of the Project. C. Ex ertise of Contractor Contractor accepts the relationship of trust and confidence established between it and the City, recognizing that the City's intention and purpose in entering into this Agreement is to engage an entity with the requisite capacity, experience, and professional skill and judgment to provide the services in pursuit of the timely and competent completion of the Work undertaken by Contractor under this Agreement. D. Budgetary Limitations Contractor agrees and acknowledges that budgetary limitations are not a justification for breach of sound principals of Contractor's profession and industry_ Contractor shall take no calculated risk in the performance of the Work. Specifically, Contractor agrees that, in the event it cannot perform the Work within the budgetary limitations established without disregarding sound principals of Contractor's profession and industry, Contractor will give written notice immediately to the City. 6 E. City's Reliance on the Work The Contractor acknowledges and agrees that the City does not undertake to approve or pass upon matters of expertise of the Contractor and that; therefore, the City bears no responsibility for Contractor's services performed under this Agreement. The Contractor acknowledges and agrees that the acceptance of Work by the City is limited to the function of determining whether there has been compliance with what is required to be produced under this Agreement. The City will not, and need not, inquire into adequacy, fitness, suitability or correctness of Contractor's performance. Contractor further agrees that no approval of designs, plans, specifications, or work by any person, body or agency shall relieve Contractor of the responsibility for adequacy, fitness, suitability, and correctness of Contractor's professional and industry standards or for performing services under this Agreement in accordance with sound and accepted professional and industry principals. F. Contractor's Reliance of Submissions by the City Contractor must have timely information and input from the City in order to perform the services required under this Agreement. Contractor is entitled to rely upon information provided by the City, but Contractor shall be required to provide immediate written notice to the City if Contractor knows or reasonably should know that any information provided by the City is erroneous, inconsistent, or otherwise problematic. G. Contractor's Representative shall be authorized to act on Contractor's behalf with respect to the Work as Contractor's designated representative. H. Assignment ofAQreement The Contractor covenants and agrees not to assign or transfer any interest in, nor delegate any duties of this Agreement, without the prior express written consent of the City. Responsibility of Contractor and Indemnification of City The Contractor covenants and agrees to take and assume all responsibility for the services rendered in connection with this Agreement. The Contractor shall bear all losses and damages directly or indirectly resulting to it on account of the performance or character of the services rendered pursuant to this Agreement. Contractor shall defend, indemnify and hold harmless the City, its officers, 7 boards, commissions, elected and appointed officials, employees and agents from and against any and all claims, suits, actions, liability, judgments, damages, losses, and expenses, including but not limited to, attorney's fees, which may be the result of willful, negligent or tortuous conduct arising out of the Work, performance of contracted services, or operations by the Contractor, any subcontractor, anyone directly or indirectly employed by the Contractor or subcontractor or anyone for whose acts the Contractor or subcontractor may be liable, regardless of whether or not the negligent act is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this provision. In any and all claims against the City or any of its agents or employees, by any employee of the Contractor, any subcontractor, anyone directly or indirectly employed by the Contractor or subcontractor or anyone for whose acts the Contractor or subcontractor may be liable, the indemnification obligation set forth in this provision shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any subcontractor under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts. This obligation to indemnify and defend the City, its members, officers, agents, employees and volunteers shall survive termination of this Agreement. Contractor shall not be required to indemnify the City or its officers, boards, commissions, elected or appointed officials, employees or agents against liability or claims for damages, losses, or expenses, including attorney fees, arising out of bodily injury to persons, death, or damage to property caused by or resulting from the sole negligence of the City or its officers, boards, commissions, elected or appointed officials, employees or agents. J. Independent Contractor Contractor hereby covenants and declares that it is engaged in an independent business and agrees to perform the services as an independent contractor and not as the agent or employee of the City. The Contractor agrees to be solely responsible for its own matters relating to the time and place the services are performed; the instrumentalities, tools, supplies and/or materials necessary to complete the services; hiring of Contractors, agents or employees to complete the services; and the payment of employees, including compliance with Social Security, withholding and all other regulations governing such matters. The Contractor agrees to be solely responsible for its own acts and those of its subordinates, employees, and subcontractors during the life of this Agreement. Any provisions of this Agreement that may appear to give the City the right to direct Contractor as to the details of the services to be performed by Contractor or 8 to exercise a measure of control over such services will be deemed to mean that Contractor shall follow the directions of the City with regard to the results of such services only. The Contractor shall obtain and maintain, at the Contractor's expense, all permits, licenses, or approvals that may be necessary for the performance of the services. The Contractor shall fumish copies of all such permits, licenses, or approvals to the City of Milton Representative within ten (10) days after issuance. Inasmuch as the City of Milton and the Contractor are contractors independent of one another neither has the authority to bind the other to any third person or otherwise to act in any way as the representative of the other, unless otherwise expressly agreed to in writing signed by both parties hereto. The Contractor agrees not to represent itself as the City's agent for any purpose to any party or to allow any employee of the Contractor to do so, unless specifically authorized, in advance and in writing, to do so, and then only for the limited purpose stated in such authorization. The Contractor shall assume full liability for any contracts or agreements the Contract enters into on behalf of the City of Milton without the express knowledge and prior written consent of the City. K. Insurance (1) Requirements: The Contractor shall have and maintain in full force and effect for the duration of this Agreement, insurance insuring against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work by the Contractor, its agents, representatives, employees or subcontractors. All policies shall be subject to approval by the City Attorney to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. (2) Minimum Limits of Insurance: Contractor shall maintain limits no less than: (a) Comprehensive General Liability of $1,000,000 combined single limit per occurrence for bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting there front. (b) Comprehensive Automobile Liability (owned, non -owned, hired) of $1,000,000 combined single limit per occurrence for bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting there from. (c) Professional Liability of $1,000,000 limit for claims arising out of 0 professional services caused by the Contractor's errors, omissions, or negligent acts. (d) Workers' Compensation limits as required by the State of Georgia and employers Liability limits of $1,000,000 per accident. (3) Deductibles and Self -Insured Retentions: Any deductibles or self-insured retentions must be declared to and approved by the City. (4) Other Insurance Provisions: The policy is to contain, or be endorsed to contain, the following provisions: (a) General Liability and Automobile Liabilily Coverage. (i) The City, its officials, employees, agents and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, leased, or used by the Contractor; automobiles owned, leased, hired, or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officials, employees, agents or volunteers. (ii) The Contractor's insurance coverage shall be primary noncontributing insurance as respects to any other insurance or self-insurance available to the City, its officials, employees, agents or volunteers. Any insurance or self-insurance maintained by the City, its officials, employees or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. (iii) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officials, employees, agents or volunteers. (iv) Coverage shall state that the Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (v) Coverage shall be provided on a "pay on behalf' basis, with defense costs payable in addition to policy limits. There shall be no cross liability exclusion. (vi) The insurer agrees to waive all rights of subrogation against 10 the City, its officials, employees, agents and volunteers for losses arising from work performed by the Contractor for the City. (vii) All endorsements to policies shall be executed by an authorized representative of the insurer. (b) Workers' Compensation Coverage: The insurer will agree to waive all rights of subrogation against the City, its officials, employees, agents and volunteers for losses arising from work performed by the Contractor for the City_ (c) All Coverages: (i) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. (ii) Policies shall have concurrent starting and ending dates. (iii) Policies shall include an endorsement incorporating the Indemnification obligations assumed by the Contractor under the terms of this Agreement, including but not limited to Section 7(I) of this Agreement. (S) Acceptability of Insurers: Insurance is to be placed with insurers with an A.M. Bests' rating of no less than A: VII. (b) Verification of Coverage: Contractor shall furnish the City with certificates of insurance and endorsements to the policies evidencing coverage required by this clause prior to the start of work. The certificates of insurance and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificate of insurance and endorsements shall be on a form utilized by Contractor's insurer in its normal course of business and shall be received and approved by the City prior to execution of this Agreement by the City. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. The Contractor shall provide proof that any expiring coverage has been renewed or replaced at least two (2) weeks prior to the expiration of the coverage. (7) Subcontractors: Contractor shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements 11 for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated in this Agreement, including but not limited to naming the parties as additional insured. (8) Claims -Made Policies: Contractor shall extend any claims -made insurance policy for at least six (6) years after termination or final payment under the Agreement, whichever is later. (9) City as Additional Insured and Loss Payee: The City shall be named as an additional insured and loss payee on all policies required by this Agreement. L. EMployMent of Unauthorized Aliens prohibited E -Verify Affidavits It is the policy of the City of Milton that unauthorized aliens shall not be employed to perform work on City contracts involving the physical performance of services. Therefore, the City shall not enter into a contract for the physical performance of services within the State of Georgia unless: (1) the Contractor shall provide evidence on City -provided forms, attached hereto as Exhibits "E" and "F" (affidavits regarding compliance with the E -Verify program to be sworn under oath under criminal penalty of false swearing pursuant to O.C.G.A. § 16-10-71), that it and Contractor's subcontractors have conducted a verification, under the federal Employment Eligibility Verification ("EEV" or "E -Verify") program, of the social security numbers, or other identifying information now or hereafter accepted by the E -Verify program, of all employees who will perform work on the City contract to ensure that no unauthorized aliens will be employed, or (2) the Contractor provides evidence that it is not required to provide an affidavit because it is licensed pursuant to Title 26 or Title 43 or by the State Bar of Georgia and is in good standing as of the date when the contract for services is to be rendered. The Contractor hereby verifies that it has, prior to executing this Agreement, executed a notarized affidavit, the form of which is provided in Exhibit "E", and submitted such affidavit to City or provided the City with evidence that it is not required to provide such an affidavit because it is licensed and in good standing as noted in subsection (2) above. Further, Contractor hereby agrees to comply with the requirements of the federal Immigration Reform and Control Act of 1986 (IRCA), P.L. 99-603, O.C.G.A. § 13-10-91 and Rule 300-10-1-.02.' In the event the Contractor employs or contracts with any subcontractor(s) in 12 connection with the covered contract, the Contractor agrees to secure from such subcontractor(s) attestation of the subcontractor's compliance with O.C.G.A. § 13-10-91 and Rule 300-10-1-.02 by the subcontractor's execution of the subcontractor affidavit, the form of which is attached hereto as Exhibit "F', which subcontractor affidavit shall become part of the contractor/subcontractor agreement, or evidence that the subcontractor is not required to provide such an affidavit because it is licensed and in good standing as noted in subsection (2) above. If a subcontractor affidavit is obtained, Contractor agrees to provide a completed copy to the City within five (5) business days of receipt from any subcontractor. Where Contractor is required to provide an affidavit pursuant to O.C.G.A. § 13- 10-91, the City Manager or his/her designee shall be authorized to conduct an inspection of the Contractor's and Contractor's subcontractors' verification process at any time to determine that the verification was correct and complete. The Contractor and Contractor's subcontractors shall retain all documents and records of their respective verification process for a period of three (3) years following completion of the contract. Further, where Contractor is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the City Manager or his/her designee shall further be authorized to conduct periodic inspections to ensure that no City Contractor or Contractor's subcontractors employ unauthorized aliens on City contracts. By entering into a contract with the City, the Contractor and Contractor's subcontractors agree to cooperate with any such investigation by making their records and personnel available upon reasonable notice for inspection and questioning. Where a Contractor or Contractor's subcontractors are found to have employed an unauthorized alien, the City Manager or his/her designee may report same to the Department of Homeland Security. The Contractor's failure to cooperate with the investigation may be sanctioned by termination of the contract, and the Contractor shall be liable for all damages and delays occasioned by the City thereby. Contractor agrees that the employee -number category designated below is applicable to the Contractor. [Information only required if a contractor affidavit is required pursuant to O.C.G.A. § 13-10-91.} 500 or more employees. 100 or more employees. Fewer than 100 employees. Contractor hereby agrees that, in the event Contractor employs or contracts with any subcontractor(s) in connection with this Agreement and where the subcontractor is required to provide an affidavit pursuant to 0.C.G.A. § 13-10-91, the Contractor will secure from the subcontractor(s) such subcontractor(s') 13 indication of the above employee -number category that is applicable to the subcontractor. The above requirements shall be in addition to the requirements of State and federal law, and shall be construed to be in conformity with those laws. M. Records, Reports and Audits (1) Records: (a) Records shall be established and maintained by the Contractor in accordance with requirements prescribed by the City with respect to all matters covered by this Agreement. Except as otherwise authorized, such records shall be maintained for a period of three years from the date that final payment is made under this Agreement. Furthermore, records that are the subject of audit findings shall be retained for three years or until such audit findings have been resolved, whichever is later. (b) All costs shall be supported by properly executed payrolls, time records, invoices, contracts, or vouchers, or other official documentation evidencing in proper detail the nature and propriety of the charges. All checks, payrolls, invoices, contracts, vouchers, orders or other accounting documents pertaining in whole or in part to this Agreement shall be clearly identified and readily accessible. (2) Reports and Information: Upon request, the Contractor shall furnish to the City any and all statements, records, reports, data and information related to matters covered by this Agreement in the form requested by the City. (3) Audits and Inspections- At any time during normal business hours and as often as the City may deem necessary, there shall be made available to the City for examination all records with respect to all matters covered by this Agreement. The Contractor will permit the City to audit, examine, and make excerpts or transcripts from such records, and to audit all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and or data relating to all matters covered by this Agreement. N. Conflicts of Interest Contractor agrees that it shall not engage in any activity or conduct that would result in a violation of the City of Milton Code of Ethics. O. Confidentiality 14 Contractor acknowledges that it may receive confidential information of the City and that it will protect the confidentiality of any such confidential information and will require any of its subcontractors, consultants, and/or staff to likewise protect such confidential information. The Contractor agrees that confidential information it receives or such reports, information, opinions or conclusions that Contractor creates under this Agreement shall not be made available to, or discussed with, any individual or organization, including the news media, without prior written approval of the City. The Contractor shall exercise reasonable precautions to prevent the unauthorized disclosure and use of City information whether specifically deemed confidential or not. P. Licenses Certifications and Permits The Contractor covenants and declares that it has obtained all diplomas, certificates, licenses, permits or the like required of the Contractor by any and all national, state, regional, county, local boards, agencies, commissions, committees or other regulatory bodies in order to perform the services contracted for under this Agreement. All work performed by Contractor under this Agreement shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily expected of competent professionals. Q. Key Personnel All of the individuals identified in Exhibit "J" [NEED TO ADD IF USED] are necessary for the successful prosecution of the Work due to their unique expertise and depth and breadth of experience. There shall be no change in Contractor's Project Manager or members of the project team, as listed in Exhibit "J", without written approval of the City. Contractor recognizes that the composition of this team was instrumental in the City's decision to award the Work to Contractor and that compelling reasons for substituting these individuals must be demonstrated for the City's consent to be granted. Any substitutes shall be persons of comparable or superior expertise and experience. Failure to comply with the provisions of this section shall constitute a material breach of Contractor's obligations under this Agreement and shall be grounds for termination. Contractor shall not subcontract with any third party for the performance of any portion of the Work without the prior written consent of the City. Contractor shall be solely responsible for any such subcontractors in terms of performance and compensation. R. Authority to Contract The Contractor covenants and declares that it has obtained all necessary approvals of its board of directors, stockholders, general partners, limited partners or similar authorities to simultaneously execute and bind Contractor to the terms of this Agreement, if applicable. 15 S. Ownership of Work All reports, designs, drawings, plans, specifications, schedules, work product and other materials prepared or in the process of being prepared for the services to be performed by the Contractor ("materials") shall be the property of the City and the City shall be entitled to full access and copies of all such materials. Any such materials remaining in the hands of the Contractor or subcontractor upon completion or termination of the work shall be delivered immediately to the City. The Contractor assumes all risk of loss, damage or destruction of or to such materials. If any materials are lost, damaged or destroyed before final delivery to the City, the Contractor shall replace them at its own expense. Any and all copyrightable subject matter in all materials is hereby assigned to the City and the Contractor agrees to execute any additional documents that may be necessary to evidence such assignment. T. Meetings The Contractor is required to meet with the City's personnel, or designated representatives, to resolve technical or contractual problems that may occur during the term of the contract, at no additional cost to the City. Meetings will occur as problems arise and will be coordinated by the City. The Contractor will be given a minimum of three full working days notice of meeting date, time, and location. Face-to-face meetings are desired. However, at the Contractor's option and expense, a conference call meeting may be substituted. Consistent failure to participate in problem resolution meetings, two consecutive missed or rescheduled meetings, or to make a good faith effort to resolve problems, may result in termination of the contract. Section S Covenants of the City A_ Right of Entry The City shall provide for right of entry for Contractor and all necessary equipment along the right-of-way, in order for Contractor to complete the Work. S_ City's Representative Jim Seeba shall be authorized to act on the City's behalf with respect to the Work as the City's designated representative Section 9 Warranty Except as may be otherwise specified or agreed, the Contractor shall repair all defects in materials, equipment, or workmanship appearing within one year from the date of Final Completion of the Project at no additional cost to the City. An inspection shall be conducted by the City or its representative(s) near the completion of the one-year general warranty period to identify any issues that must be resolved by the Contractor. Section 10 Termination A. The City may terminate this Agreement for convenience at any time upon written notice to Contractor. In the event of a termination for convenience, Contractor shall take immediate steps to terminate work as quickly and effectively as possible and shall terminate all commitments to third -parties unless otherwise instructed by the City. Provided that no damages are due to the City for Contractor's failure to perform in accordance with this Agreement, the City shall pay Contractor for work performed to date in accordance with Section 5 herein. The City shall have no further liability to Contractor for such termination. B. The City may terminate this Agreement for cause if Contractor breaches any material provision of this Agreement. The City shall give Contractor seven (7) days written notice of its intent to terminate the Agreement and the reasons therefore, and, if Contractor, or its Surety, fails to cure the default within that period, the termination shall take place without further notice. The City shall then make alternative arrangements for completion of the Project and deduct the cost of completion from the unpaid Contract Price. The City will make no payment to the Contractor or its Surety until all costs of completing the Project are paid. If the unpaid balance of the amount due the Contractor, according to this agreement, exceeds the cost of finishing the Project, the Contractor or its Surety will receive the applicable funds due. If the costs of completing the Project exceed the unpaid balance, the Contractor or its Surety will pay the difference to the City. C. If the City terminates this Agreement for cause, and it is later determined that the City did not have grounds to do so, the termination will he treated as a termination for convenience under the terms of this Section (A) above. D. Upon termination, the Contractor shall: (1) promptly discontinue all services affected, unless the notice directs otherwise; and (2) promptly deliver to the City all data, drawings, reports, summaries, and such other information and materials as may have been generated or used by the Contractor in performing this Agreement, whether completed or in process, in the form specified by the City. E. The rights and remedies of the City and the Contractor provided in this Section are in addition to any other rights and remedies provided under this Agreement or at law or in equity. 17 Section 11 Miscellaneous A. Complete Agreement. This Agreement contains all of the understandings and agreements of whatsoever kind and nature existing between the parties hereto with respect to the subject matter contained herein. B. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Georgia. C. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. D. Invalidity of Provisions. Should any part of this Agreement for any reason be declared by any court of competent jurisdiction to be invalid, such decision shall not affect the validity of any remaining portion, which remaining portion shall continue in full force and effect as if this Agreement had been executed with the invalid portion hereof eliminated, it being the intention of the parties that they would have executed the remaining portion of this Agreement without including any such part, parts or portions which may for any reason be hereafter declared invalid. E. Notice. All notices requests, demands and other communications hereunder shall be in writing and shall be deemed received, and shall be effective when personally delivered or on the third day after the postmark date when mailed by certified mail, postage prepaid, return receipt requested or upon actual delivery when sent via national overnight commercial carrier to the parties at the addresses given below, unless a substitute address shall first be furnished to the other parties by written notice in accordance herewith: NOTICE TO CITY shall be sent to: City of Milton Attn: City Manager 13000 Deerfield Parkway, Suite 107F Milton, Georgia 30004 NOTICE TO CONTRACTOR shall be sent to: Mr. Newt Strickland, Strickland Pipeline and Construction, Inc., Alpharetta, Georgia. F. Sovereign Immunity. Nothing contained in this Agreement shall be construed to IN be a waiver of the City's sovereign immunity or any individual's qualified good faith or official immunities. G. Force Majeure. Neither the City nor Contractor shall be liable for their respective non -negligent or non -willful failure to perform or shall be deemed in default with respect to the failure to perforin (or cure a failure to perform) any of their respective duties or obligations under this Agreement or for any delay in such performance due to: (i) any cause beyond their respective reasonable control; (ii) any act of God; (iii) any change in applicable governmental rules or regulations rendering the performance of any portion of this Agreement legally impossible; (iv) earthquake, fire, explosion or flood; (v) strike or labor dispute, excluding strikes or labor disputes by employees and/or agents of Contractor; (vi) delay or failure to act by any governmental or military authority; or (vii) any war, hostility, embargo, sabotage, civil disturbance, riot, insurrection or invasion. In such event, the time for performance shall be extended by an amount of time equal to the period of delay caused by such acts and all other obligations shall remain intact. H. Headings. All headings herein are inserted only for convenience and ease of reference and are not to be considered in the construction or interpretation of any provision of this Agreement. Nondiscrimination. In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and all other provisions of Federal law, the Consultant agrees that, during performance of this Agreement, Consultant, for itself, its assignees and successors in interest, will not discriminate against any employee or applicant for employment, any subcontractor, or any supplier because of race, color, creed, national origin, gender, age or disability. In addition, Consultant agrees to comply with all applicable implementing regulations and shall include the provisions of this Section I in every subcontract for services contemplated under this Agreement. During the performance of this Agreement, the Consultant, for itself, its assignees, and successors in interest also agrees as follows: 1. Compliance with Regulations The Consultant shall comply with the Regulations relative to nondiscrimination in federally -assisted programs of the Department of Transportation (hereinafter referred to as DOT), Title 49, Code of Federal Regulations, part 21, as they may be amended from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by refercnce and made a part of this contract. 2. Nondiscrimination The Consultant, with regard to the work performed by it during the contract, shall not discriminate on the grounds of race, color, sex, or national origin in the selection and retention of subcontractors, including procurement of materials and leases of 19 equipment. The Consultant shall not participate either directly or indirectly in discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations. 3. Solicitations for Subcontracts, Including Procurement of Materials and Equipment In all solicitations either by competitive bidding or negotiations made by the Consultant for work to be performed under a subcontract, including procurement of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the Consultant of the Consultant's obligations under this contract and the Regulations relative to nondiscrimination on the ground of race, color, sex, or national origin. 4. Information and Reports The Consultant shall provide all information and reports required by the Regulations or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the (Recipient) or the Federal Highway Administration to be pertinent to ascertain compliance with such Regulations, orders, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish this information, the Consultant shall so certify to the (Recipient), or the Federal Highway Administration as appropriate, and shall set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance In the event of the Consultant's noncompliance with the nondiscrimination provisions of this contract, the (Recipient) shall impose such contract sanctions as it or the Federal Highway Administration may determine to be appropriate, including, but not limited to: a. Withholding of payments to the Consultant under the contract until the Consultant complies; and/or b. Cancellation, termination, or suspension of the contract, in whole or in part. 5. Incorporation of Provisions The Consultant shall include the provisions of paragraphs (1) through (b) in every subcontract, including procurement of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The Consultant shall take such action with respect to any subcontractor or procurement as the (Recipient) or the Federal Highway Administration may direct as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event a Consultant becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the Consultant may request the (Recipient) enter into such litigation to protect the interests of the state and, in addition, the Consultant may request the United States to enter into such litigation to protect the interests of the United States. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed under seal as of the date first above written. [SIGNATURES ON FO �ING PAGE Sir' and ili stru C. Signature Print Mame SIGNED, SEALED, AND DELIVERED In the presence of. Witness (Corporate Secretary ould attest) r ,('L- e4 6;�. ut J Print Name Notary Public [NOTARY SEAL] My Commission Expires: SIGNED SEALED AND DELIVERED In the presence of: Witness Notary Public [NOTARY SEAL] My Commission Expires: 1 Title [AFFIX CORPORATE SEAL] MILTON CITY COUNCIL: Joe Lockwood, Mayor 21 [CITY SEAL] 22 EXHIBIT "A" REQUEST FOR BID Thompsan Road Stomwaler System Impravemean :1 1,20a& BY I-.QUPM mccom till C)m Tie iw"�c Co-.I=cZr Is mq.&W tDOfwt TA �l 727,1. mspws We W LcMj'W-&',,3 W -d COMOUM"Cn 0 Tm bwArMkV Wd CWWM�Y-2 t'V. 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S-t::neC.t+_ PrE C-A.H-E A -,Z? t�l -.'E AMa.MT LPM V"KM Nr- rO[ Fk MIL BE FCXWLV-LY PVALVAM ANO V," ';-i YLIT-L BE UMD TC -rl-F- iaemaT F;RSPQ VN -c ERWWOL -r.&A btle N,2 Fm; rot m VA"mm or Ina ted. axcw at d-& FE%M. OfTle crte, INa petcd ol ShL� fcrj ifms -rpe awo mHbm fflscfm um Kaxto N*dPf a* scam 04 Oft pqec at wylmr- 'at UL wteam a meacdatesl t!&. EXHIBIT "B" BID FROM CONTRACTOR Thompsnm R&A Starmwater System Improvements BIDS OLF iafw�Y 3, 2016 0Y 1:00 PM R=W f35[Grwbw of Plata _LRM- owtmav7 -D GC w T* Y.YiGAd.'^$ sr-cpa. S?oc� is MwMd. 7o- -AV,.. aG s:t.G '�•CI' � Ste=$ GL' �A G�L^11 iCOCY". �F'f1�G4?'i3 �s�€Gde $plJGtf[ f4-.Ot6 SSL O�OIC..�9€1 C1 �`i S�gP4C. E8.•r Kist csri:'i GTissEP W -M. 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C �i"Cffad k3 Sul!r tL�,/ HOME OF' ESTABLISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: January 26, 2016 FROM: City Manager AGENDA ITEM: Approval of a Construction Services Agreement between the City of Milton and Southern Demolition, LLC for the Demolition of Structures MEETING DATE: Monday, February 1, 2016 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: APPROVED (J NOT APPROVED CITY ATTORNEY APPROVAL REQUIRED: J YES (J NO CITY ATTORNEY REVIEW REQUIRED: J YES (J NO APPROVAL BY CITY ATTORNEY APPROVED () NOT APPROVED PLACED ON AGENDA FOR: p Z ollb REMARKS PHONE: 678.242.2500 FAX: 678.242.2499 %reed * Crn+find + 49� �� ii.rii.iHr Community 3 E,h,�s f info@cityofmiltonga.us www.cityofmiltonga.us "oe 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004"�"" To: Honorable Mayor and City Council Members From: Matthew Fallstrom, Capital Projects Manager Date: Submitted on January 25th 2016 for the February 1st 2016 Regular Council Meeting Agenda Item: Approval of a Construction Services Agreement between the City of Milton and Southern Demolition, LLC for the Demolition of Structures ______________________________________________________________________________ Department Recommendation: Approval Executive Summary: The project is to provide construction services for the demolition of city owned structures. The structures are located at the following locations and have been deemed unsafe and unrepairable. o 690 Hickory Flat Rd. o 13440 Providence Park Dr. (Maintenance Building) o 16050 Old Bullpen Rd. (Remains of the two structures destroyed by a fire) In accordance with the city procurement procedures, the project was advertised and the city received sealed bids from qualified contractors. Southern Demolition, LLC was the lowest qualified bidder. Staff is recommending approval of the Construction Services Agreement with Southern Demolition, LLC in the amount of $27,600. Funding and Fiscal Impact: Funding for this project is available in the Parks budget. Alternatives: There are no alternatives to this project. Legal Review: Ken Jarrard – Jarrard & Davis (12-17-15) Concurrent Review: Chris Lagerbloom, City Manager Attachment(s): Construction Services Agreement HOMF OF' i i� ES fA6LIS11f D 2006 CONSTRUCTION SERVICES AGREEMENT FOR FY16 Demolition Project This Agreement (the "Agreement") to provide demolition services is made and entered into this_ day of , 2016, by and between the CITY OF MILTON, a municipal corporation of the State of Georgia, acting by and through its governing authority, the Milton City Council (hereinafter referred to as the "City") and, Southern Demolition, LLC, a Georgia limited liability company with its principal place of business located at 2497 Edwards Dr. Atlanta, Georgia 30318 (hereinafter referred to as the "Contractor"). WITNESSETH: WHEREAS, the City issued an Invitation to Bid for the FY 16 Demolition Project (the "Project") attached hereto as Exhibit "A" and incorporated herein by reference; and WHEREAS, based upon Contractor's bid to complete the Demolition Project, as, which bid is attached hereto as Exhibit "B" and incorporated herein by reference , the City has selected Contractor as the winning bidder; and WHEREAS, Contractor has agreed to perform the Work (defined below) as set forth in this Agreement, according to the terms and conditions provided in this Agreement; and WHEREAS, Contractor has familiarized itself with the nature and extent of the Contract Documents, the Project, and the Work, with all local conditions and federal, state and local laws, ordinances, rules and regulations in any manner that may affect cost, progress or performance of the Work, and Contractor is aware that it must be licensed to do business in the State of Georgia. NOW THEREFORE, the City and Contractor, in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency of which is hereby acknowledged, agree as follows: Section 1 Contract Documents The following documents are incorporated herein by reference and constitute the Contract Documents: A. This Agreement (21 Pages); B. Invitation To Bid (71 Pages), attached hereto as Exhibit "A", C. Bid from Contractor dated December 1, 2015 (81 Pages), attached hereto as Exhibit "B s7. S3 7 D. Exhibit "C" [RESERVED]; E. Exhibit "D" [RESERVED]; F. Contractor Affidavit and Agreement, attached hereto as Exhibit "E"; G. Subcontractor Affidavit, attached hereto as Exhibit "F"; H. Final Affidavit, attached hereto as Exhibit "G"; I. Performance and Payment Bonds, attached hereto as Exhibits "H-1" & "H-217; J. The following which may be delivered or issued after the Effective Date of the Agreement and are not attached hereto: All Written Amendments and other documents amending, modifying, or supplementing the Contract Documents if properly adopted in writing and executed by the Parties; and K. City of Milton Code of Ethics. In the event of any discrepancy among the Contract Documents, that provision that inures most to the benefit of the City, as determined by the City in its sole discretion, shall govern. The scope of this project generally consists of the demolition of structures at 13440 Providence Park Drive, 690 Hickory Flat Road, and 16050 Old Bullpen Road. Section 3 The Work A. The Work. The work to be completed under this Agreement (the "Work") is specified and indicated in the Contract Documents. The Work consists of the removal of all asbestos material, the demolition of the existing structures, the removal of all underground gas tanks and septic tanks, and all erosion and sediment control measures. The Work includes all material, labor, insurance, tools, equipment, and any other miscellaneous items reasonably inferable from the Contract Documents. The term "reasonably inferable" takes into consideration the understanding of the Parties that some details necessary for proper execution and completion of the Work may not be shown on the drawings or included in the specifications or Scope of Work, but they are a requirement of the Work if they are a usual and customary component of the Work or are otherwise necessary for proper and complete the Work. Contractor shall complete the Work in strict accordance with the Contract 2 Documents. B. Notice to Proceed. The City will issue a Notice to Proceed, which Notice to Proceed shall state the date for beginning Work. Section 4 Contract Time This Agreement shall take effect on the date stated on the first page of this Agreement. Contractor agrees to complete the Project within 20 calendar days from the date for beginning Work as set forth in the Notice to Proceed. Every effort will be made by Contractor to shorten this period. If the Term of this Agreement continues beyond the calendar year in which this Agreement is executed, the Parties agree that this Agreement, as required by O.C.G.A. § 36-60-13, shall terminate absolutely and without further obligation on the part of the City on December 31 each calendar year of the Term, and further, that this Agreement shall automatically renew on January 1 of each subsequent calendar year absent the City's provision of written notice of non -renewal to Contractor at least five (5) calendar days prior to the end of the then current calendar year. Further, this Agreement shall terminate immediately and absolutely at such time as appropriated or otherwise unobligated funds are no longer available to satisfy the obligation of the City. Section 5 Contractor's Comasensation; Time and Method of Pay east A. Maximum Contract Price. The total amount paid under this Agreement shall not, in any case, exceed $27,600 (the "Maximum Contract Price") except as outlined in Section b below. The compensation for Work performed shall be based upon the flat fee for demolishing each structure, as set forth in the Bid Schedule in Contractor's bid. This amount shall include all use, lease, or other taxes, and all expenses for personnel and equipment (including fuel) that Contractor will incur to provide the Work, and Contractor represents that this price is sufficient to perform all of the Work set forth in and contemplated by this Agreement. Title to any supplies, materials, equipment, or other personal property shall remain in Consultant until fully paid for by the City. B. Payment for Work Completed and Costs Incurred City agrees to pay the Contractor for the Work upon certification by the City that the Work was actually performed and costs actually incurred in accordance with the Agreement. Compensation for Work performed shall be paid to the Contractor upon receipt and approval by the City of an invoice setting forth in detail the Work performed. The invoice should be submitted to the City's budget and procurement coordinator for approval. The invoice shall reflect charges incurred versus charges 3 budgeted and shall be accompanied by a Waiver and Release upon Final Payment procured by the Contractor from all subcontractors in accordance with O.C.G.A. § 44-14-366. The City shall pay the Contractor within thirty (30) calendar days after approval of the invoice by City staff. Neither final payment nor any retained percentage shall become due until the Contractor submits to the City: (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the City or City property might be responsible or encumbered have been paid or otherwise satisfied; (2) a certificate evidencing that insurance, required by the Contract Documents to remain in force after final payment, is currently in effect and will not be canceled or allowed to expire until at least 30 calendar days prior written notice has been given to the City; (3) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents; (4) consent of surety, if any, to final payment; (5) a release or waiver of liens, claims, security interests, and encumbrances by all subcontractors and material suppliers; and (6), if required by the City, other data establishing payment or satisfaction of obligations, such as receipts, to the extent and in such form as may be designated by the City. If a subcontractor or material supplier refuses to furnish a release or waiver as required by the City, the Contractor may furnish a bond satisfactory to the City to indemnify the City against such lien. If such lien remains unsatisfied after payments are made, the Contractor shall refund to the City all money that the City may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees. Acceptance of final payment by the Contractor, a subcontractor or material supplier shall constitute a waiver of claims by that payee, except those claims previously made in writing and identified by that payee as unsettled at the time of final application for payment No payments will be made for unauthorized work. Payment will be sent to the designated address by U.S. Mail only; payment will not be hand -delivered. C. Withholding of Final Payment. The City may withhold final payment for reasons including, but not limited to, the following: unsatisfactory job performance or progress, defective work, disputed work, failure to comply with material provisions of the Agreement, third party claims filed or reasonable evidence that a claim will be filed or other reasonable cause. Section 6 Work Changes A. Right to Order Changes. The City reserves the right to order changes in the Work to be performed under this Agreement by altering, adding to, or deducting from the Work. All such changes 4 shall be incorporated in written change orders executed by the Contractor and the City. Such change orders shall specify the changes ordered and any necessary adjustment of compensation and completion time. If the Parties cannot reach an agreement on the terms for performing the changed work within a reasonable time to avoid delay or other unfavorable impacts as determined by the City in its sole discretion, the City shall have the right to determine reasonable terms and the Contractor shall proceed with the changed work. B. Change Order Requirement. Any work added to the scope of this Agreement by a change order shall be executed under all the applicable conditions of this Agreement. No claim for additional compensation or extension of time shall be recognized, unless contained in a written change order duly executed on behalf of the City and the Contractor. C. Authority to Execute Change Order. The City Manager has authority to execute without further action of the Milton City Council, any number of change orders so long as their total effect does not materially alter the terms of this Agreement or materially increase the total amount to be paid under this Agreement. Any such change orders materially altering the terms of this Agreement or increasing the total amount to be paid under this Agreement in excess of $50,000, must be approved by resolution of the Milton City Council. Section 7 Covenants of Contractor. A. Ethics Code Contractor agrees that it shall not engage in any activity or conduct that would be in violation of the City of Milton Code of Ethics. B. Time is of the Essence Contractor specifically acknowledges that TIME IS OF THE ESSENCE for completion of the Project. C. Expertise of Contractor Contractor accepts the relationship of trust and confidence established between it and the City, recognizing that the City's intention and purpose in entering into this Agreement is to engage an entity with the requisite capacity, experience, and professional skill and judgment to provide the services in pursuit of the timely and competent completion of the Work undertaken by Contractor under this Agreement. E D. Budgetary Limitations Contractor agrees and acknowledges that budgetary limitations are not a justification for breach of sound principles of Contractor's profession and industry. Contractor shall take no calculated risk in the performance of the Work. Specifically, Contractor agrees that, in the event it cannot perforin the Work within the budgetary limitations established without disregarding sound principles of Contractor's profession and industry, Contractor will give written notice immediately to the City. The Contractor agrees to use its best efforts, skill, judgment, and abilities to perform its obligations and to further the interests of City and the Project in accordance with the City's requirements and procedures, and Contractor shall employ only persons duly qualified in the appropriate area of expertise to perform the Work described in this Agreement. E. City's Reliance on the Work The Contractor acknowledges and agrees that the City does not undertake to approve or pass upon matters of expertise of the Contractor and that; therefore, the City bears no responsibility for Contractor's services performed under this Agreement. The Contractor acknowledges and agrees that the acceptance of Work by the City is limited to the function of determining whether there has been compliance with what is required to be produced under this Agreement. The City will not, and need not, inquire into adequacy, fitness, suitability or correctness of Contractor's performance_ Contractor further agrees that no approval of designs, plans, specifications, or work by any person, body or agency shall relieve Contractor of the responsibility for adequacy, fitness, suitability, and correctness of Contractor's professional and industry standards or for performing services under this Agreement in accordance with sound and accepted professional and industry principles. F. Contractor's Reliance of Submissions y the City Contractor must have accurate information from the City in order to perform the services required under this Agreement. Contractor is entitled to rely upon information provided by the City, but Contractor shall be required to provide immediate written notice to the City if Contractor knows or reasonably should know that any information provided by the City is erroneous, inconsistent, or otherwise problematic. G. Contractor's Representative A4q--2-!JJgl ' shall be authorized to act on Contractor's behalf with respect to the Work as Contractor's designated representative. H. Assignment of Agreement M The Contractor covenants and agrees not to assign or transfer any interest in, nor delegate any duties of this Agreement, without the prior express written consent of the City. I. Responsibility of Contractor and Indemnification of City The Contractor covenants and agrees to take and assume all responsibility for the services rendered in connection with this Agreement. The Contractor shall bear all losses and damages directly or indirectly resulting to it on account of the performance or character of the services rendered pursuant to this Agreement. Contractor shall defend, indemnify and hold harmless the City, its officers, boards, commissions, elected and appointed officials, employees and agents from and against any and all claims, suits, actions, liability, judgments, damages, losses, and expenses, including but not limited to, attorney's fees, which may be the result of willful, negligent or tortious conduct arising out of the Work, performance of contracted services, or operations by the Contractor, any subcontractor, anyone directly or indirectly employed by the Contractor or subcontractor or anyone for whose acts or omissions the Contractor or subcontractor may be liable, regardless of whether or not the negligent act or omission is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this provision. In any and all claims against the City or any of its agents or employees, by any employee of the Contractor, any subcontractor, anyone directly or indirectly employed by the Contractor or subcontractor or anyone for whose acts or omissions the Contractor or subcontractor may be liable, the indemnification obligation set forth in this provision shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any subcontractor under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts. This obligation to indemnify and defend the City, its members, officers, agents, employees and volunteers shall survive termination of this Agreement. Contractor shall not be required to indemnify the City or its officers, boards, commissions, elected or appointed officials, employees or agents against liability or claims for damages, losses, or expenses, including attorney fees, arising out of bodily injury to persons, death, or damage to property caused by or resulting from the sole negligence of the City or its officers, boards; commissions, elected or appointed officials, employees or agents. J. Independent Contractor Il Contractor hereby covenants and declares that it is engaged in an independent business and agrees to perform the services as an independent contractor and not as the agent or employee of the City. The Contractor agrees to be solely responsible for its own matters relating to the time and place the services are performed; the instrumentalities, tools, supplies and/or materials necessary to complete the services; hiring of sub -contractors, agents or employees to complete the services; and the payment of employees, including compliance with Social Security, withholding and all other regulations governing such matters. The Contractor agrees to be solely responsible for its own acts and those of its subordinates, employees, and subcontractors during the life of this Agreement. Any provisions of this Agreement that may appear to give the City the right to direct Contractor as to the details of the services to be performed by Contractor or to exercise a measure of control over such services will be deemed to mean that Contractor shall follow the directions of the City with regard to the results of such services only. Inasmuch as the City of Milton and the Contractor are contractors independent of one another neither has the authority to bind the other to any third person or otherwise to act in any way as the representative of the other, unless otherwise expressly agreed to in writing signed by both parties hereto. The Contractor agrees not to represent itself as the City's agent for any purpose to any party or to allow any employee of the Contractor to do so, unless specifically authorized, in advance and in writing, to do so, and then only for the limited purpose stated in such authorization. The Contractor shall assume full liability for any contracts or agreements the Contract enters into on behalf of the City of Milton without the express knowledge and prior written consent of the City. K. insurance (1) Requirements: The Contractor shall have and maintain in full force and effect for the duration of this Agreement, insurance insuring against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work by the Contractor, its agents, representatives, employees or subcontractors. All policies shall be subject to approval by the City Attorney to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. (2) Minimum Limits of Insurance: Contractor shall maintain the following insurance policies with coverage and limits no less than: (a) Commercial General Liability: $1,000,000 (one million dollars) combined single limit per occurrence and $2,000,000 (two million dollars) aggregate comprehensive/extended/enhanced Commercial .General Liability policy with coverage including bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting therefrom, damage for premises/operations, products/completed operations, independent 8 consultants and contractual liability (specifically covering the indemnity), broad -form property damage, and underground, explosion and collapse hazard. This coverage may be achieved by using an excess or umbrella policy. The policy or policies must be on "an occurrence" basis ("claims made" coverage is not acceptable). (b) Commercial Automobile Liability (owned, non -owned, hired): $1,000,000 (one million dollars) combined single limit per occurrence for comprehensive Commercial Automobile Liability coverage including bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting therefrom. (e) Demolition Contractor's Liability Insurance: $1,000,000 (one million dollars) limit for claims arising out of demolition and caused by the Contractor's errors, omissions, or negligent acts.(d) Workers' Compensation and Employers Liability: Workers' Compensation limits as required by the State of Georgia and Employers Liability limits of $1,000,000 (one million dollars) per occurrence or disease. (e) Commercial Umbrella Liability Coverage: $2,000,000 (two million dollars) per occurrence shall be provided and will apply over all liability policies, without exception, including but not limited to Commercial General Liability, Commercial Automobile Liability, Employers' Liability, and Demolition Contractor's Liability. (3) Deductibles and Self -Insured Retentions: Any deductibles or self-insured retentions must be declared to and approved by the City in writing so that the City may ensure the financial solvency of the Contractor; self-insured retentions should be included on the certificate of insurance. (4) Other Insurance Provisions: The policy shall contain, or be endorsed to contain, the following provisions: (a) General Liability, Automobile Liability, Demolition Contractor's Liabili y and Umbrella Liability Coverage: (i) Additional Insured Requirement. The City and its elected and appointed officials, officers, boards, commissions, employees, representatives, consultants, servants, agents and volunteers (individually "Insured Party" and collectively "Insured Parties' } shall be named as additional insureds as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, leased, or used by the 9 Contractor; automobiles owned, leased, hired, or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the Insured Parties. Nothing contained in this section shall be construed to require the Contractor to provide liability insurance coverage to any Insured Party for claims asserted against such Insured Party for its sole negligence. (ii) Primary .Insurance Requirement. The Contractor's insurance coverage shall be primary noncontributing insurance as respects to any other insurance or self-insurance available to the Insured Parties. Any insurance or self- insurance maintained by the Insured Parties shall be in excess of the Contractor's insurance and shall not contribute with it. (iii) Reporting Requirement. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Insured Parties. (iv) Separate Coverage. Coverage shall state that the Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to limits of insurance provided. (v) Defense Costs/Cross Liability. Coverage shall be provided on a "pay on behalf' basis, with defense costs payable in addition to policy limits. There shall be no cross liability exclusion. (vi) Subrogation. The insurer shall agree to waive all rights of subrogation against the Insured Parties for losses arising from Work performed by the Contractor for the City. (vii) Endorsements. All endorsements to policies shall be executed by an authorized representative of the insurer. (b) Workers' Compensation Coverage: The insurer will agree to waive all rights of subrogation against the Insured Parties for losses arising from Work performed by the Contractor for the City. (c) All Coverages (i) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except 10 after thirty (3€1) days prior written notice by certified mail, return receipt requested, has been given to the City. (ii) Policies shall have concurrent starting and ending dates. (iii) Policies shall include an endorsement incorporating the Indemnification obligations assumed by the Contractor under the terms of this Agreement, including but not limited to Section 7(I) of this Agreement. (5) Acceptability of lnsurers: The insurance to be maintained by Contractor must be issued by a company licensed or approved by the Insurance Commissioner to transact business in the State of Georgia. Such insurance shall be placed with insurers with an A.M. Best Policyholder's rating of no less than "A-" and with a financial rating of Class VII or greater. The Contractor shall be responsible for any delay resulting from the failure of its insurer to provide proof of coverage in the prescribed form. (6) Verification of Coverage: Contractor shall furnish the City with certificates of insurance and endorsements to the policies evidencing all coverage required by this Agreement along with the declarations page for each insurance policy listed on the certificate of insurance prior to submission of this Agreement to the City for execution and must be approved by the City before commencement of the Work. Without limiting the general scope of this requirement, Contractor is specifically required to provide an endorsement naming the City as an additional insured when required. The certificates of insurance and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf, unless alternate sufficient evidence of their validity and incorporation into the policy is provided. The certificates of insurance, endorsements and declarations page shall be furnished on a form utilized by Contractor's insurer in its normal course of business. The City reserves the right to require complete, certified copies of all required insurance policies at any time. The Contractor shall provide proof that any expiring coverage has been renewed or replaced at least two (2) weeks prior to the expiration of the coverage. (7) Subcontractors: Contractor shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject. to all of the requirements stated in this Agreement, including but not limited to naming the Insured Parties as additional insureds. (8) Claims -Made Policies: Contractor shall extend any claims -made insurance policy for at least six (6) years after termination or final payment under the Agreement, whichever is later, and have an effective date which is on or prior to the date of the Contractor's initial contract date with the City. 11 (9) City as Additional Insured and Loss Payee: The City shall be named as an additional insured and loss payee on all policies required by this Agreement_ L. EmRloyment of Unauthorized Aliens Prohibited E -Verify Affidavits It is the policy of the City of Milton that unauthorized aliens shall not be employed to perform Work on City contracts involving the physical performance of services. Therefore, the City shall not enter into a contract for the physical performance of services unless: (1) the Contractor shall provide evidence on City -provided forms, attached hereto as Exhibits "E" and "F" (affidavits regarding compliance with the E -Verify program to be sworn under oath under criminal penalty of false swearing pursuant to O.C.G.A. § 16-10-71), that it and Contractor's subcontractors have conducted a verification, under the federal Employment Eligibility Verification CTEV" or "E -Verify") program, of the social security numbers, or other identifying information now or hereafter accepted by the E -Verify program, of all employees who will perform Work on the City contract to ensure that no unauthorized aliens will be employed, or (2) the Contractor provides evidence that it is not required to provide an affidavit because it is licensed pursuant to Title 26 or Title 43 or by the State Bar of Georgia and is in good standing as of the date when the contract for services is to be rendered. The Contractor hereby verifies that it has, prior to executing this Agreement, executed a notarized affidavit, the form of which is provided in Exhibit "E", and submitted such affidavit to City or provided the City with evidence that it is not required to provide such an affidavit because it is licensed and in good standing as noted in subsection (2) above. Further, Contractor hereby agrees to comply with the requirements of the federal Immigration Reform and Control Act of 1986 (IRCA), P.L. 99-603, O,C.G.A. § 13-10-91 and Rule 300-10-1-.02. In the event the Contractor employs or contracts with any subcontractor(s) in connection with the covered contract, the Contractor agrees to secure from such subcontractor(s) attestation of the subcontractor's compliance with O.C.G.A. § 13- 10-91 and Rule 300-10-1-.02 by the subcontractor's execution of the subcontractor affidavit, the form of which is attached hereto as Exhibit "F", which subcontractor affidavit shall become part of the contractor/subcontractor agreement, or evidence that the subcontractor is not required to provide such an affidavit because it is licensed and in good standing as noted in subsection (2) above. If a subcontractor affidavit is obtained, Contractor agrees to provide a completed copy to the City 12 within five (5) business days of receipt from any subcontractor. Where Contractor is required to provide an affidavit pursuant to O.C.G.A. § 13-10- 91, the City Manager or his/her designee shall be authorized to conduct an inspection of the Contractor's and Contractor's subcontractors' verification process at any time to determine that the verification was correct and complete. The Contractor and Contractor's subcontractors shall retain all documents and records of their respective verification process for a period of five (5) years following completion of the contract. Further, where Contractor is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the City Manager or his/her designee shall further be authorized to conduct periodic inspections to ensure that no City Contractor or Contractor's subcontractors employ unauthorized aliens on City contracts. By entering into a contract with the City, the Contractor and Contractor's subcontractors agree to cooperate with any such investigation by making their records and personnel available upon reasonable notice for inspection and questioning. Where a Contractor or Contractor's subcontractors are found to have employed an unauthorized alien, the City Manager or his/her designee may report same to the Department of Homeland Security. The Contractor's failure to cooperate with the investigation may be sanctioned by termination of the contract, and the Contractor shall be liable for all damages and delays occasioned to the City thereby. Contractor agrees that the employee -number category designated below is applicable to the Contractor. [Information only required if a contractor affidavit is required pursuant to O.C.G.A. § 13-10-91.1 500 or more employees. 100 or more employees. V Fewer than 100 employees. Contractor hereby agrees that, in the event Contractor employs or contracts with any subcontractor(s) in connection with this Agreement and where the subcontractor is required to provide an affidavit pursuant to O.C.G.A. § 13-10-91, the Contractor will secure from the subcontractor(s) such subcontractor(s') indication of the above employee -number category that is applicable to the subcontractor. The above requirements shall be in addition to the requirements of State and federal law, and shall be construed to be in conformity with those laws. M. Records, Reports and Audits (1) Records: 13 (a) Boobs, records, documents, account legers, data bases, and- similar materials relating to the Work performed for the City under this Agreement C Records") shall be established and maintained by the Contractor in accordance with requirements prescribed by the City with respect to all matters covered by this Agreement. Except as otherwise authorized or required, such Records shall be maintained for at least three (3) years from the date that final payment is made to Contractor by City under this Agreement. Furthermore, Records that are the subject of audit findings shall be retained for three (3) years or until such audit findings have been resolved, whichever is later. (b) All costs shall be supported by properly executed payrolls, time records, invoices, contracts, or vouchers, or other official documentation evidencing in proper detail the nature and propriety of the charges. All checks, payrolls, invoices, contracts, vouchers, orders or other accounting documents pertaining in whole or in part to this Agreement shall be clearly identifier) and readily accessible. (2) Reports and information: Upon request, the Contractor shall furnish to the City any and all statements, records, reports, data and information related to matters covered by this Agreement in the form requested by the City. (3) Audits and inspections: At any time during normal business hours and as often as the City may deem necessary, Contractor shall make available to the City or City's representative(s) for examination all Records with respect to all matters covered by this Agreement. The Contractor will permit the City or City's representative(s) to audit, examine, and make excerpts or transcripts from such Records, and to audit all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and or data relating to all matters covered by this Agreement. N. Bonds. The Contractor shall provide Performance and Payment bonds, on the forms attached hereto as "Exhibit H-1 and -2," both in amounts equal to one hundred percent (100%) of the contract price. Bonds shall be issued by a corporate surety appearing on the Treasury Department's most current list (Circular 570 as amended) and be authorized to do business in the Mate of Georgia. Bonds shall be on the forms provided by the City and subject to the review and approval of the City Attorney. Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Contract, the Contractor shall promptly furnish a copy of the bonds or shall permit a copy to be made. 14 O. Confidentiality Contractor acknowledges that it may receive confidential information of the City and that it will protect the confidentiality of any such confidential information and will require any of its subcontractors, consultants, and/or staff to likewise protect such confidential information. The Contractor agrees that confidential information it receives or such reports, information, opinions or conclusions that Contractor creates under this Agreement shall not be made available to, or discussed with, any individual or organization, including the news media, without prior written approval of the City. The Contractor shall exercise reasonable precautions to prevent the unauthorized disclosure and use of City information whether specifically deemed confidential or not. Contractor acknowledges that the City's disclosure of documentation is governed by Georgia's Open Records Act, and Contractor further acknowledges that, if Contractor submits records containing trade secret information and if Contractor wishes to keep such records confidential, Contractor must submit and attach to such records an affidavit affirmatively declaring that specific information in the records constitutes trade secrets pursuant to Article 27 of Chapter 1 of Title 10, and the Parties shall follow the requirements of O.C.G.A. § 50-18-72(a)(34) related thereto. P. Licenses Certifications and Permits The Contractor covenants and declares that it has obtained all diplomas, certificates, licenses, permits or the like required of the Contractor by any and all national, state, regional, county, local boards, agencies, commissions, committees or other regulatory bodies in order to perform the services contracted for under this Agreement. Further, the Contractor shall obtain and maintain, at the Contractor's expense, all permits, licenses, or approvals that may be necessary for the performance of the Work. The Contractor shall furnish copies of all such permits, licenses, or approvals to the City of Milton Representative within ten (10) days after issuance. The Contractor agrees that it will perform its services in accordance with the usual and customary standards of the Contractor's profession or business and in compliance with all applicable federal, state, and local laws, regulations, codes, ordinances, or orders applicable to the Project, including, but not limited to, O.C.G.A. § 50-5-63. Any additional work or costs incurred as a result of error and/or omission by Contractor as a result of not complying with the Contract Documents or not meeting the applicable standard of care or quality will be provided at Contractor's expense and at no additional cost to the City. This provision shall survive termination of this Agreement. It is the Contractor's responsibility to be reasonably aware of all applicable laws, statutes, ordinances, building codes, and rules and regulations. If the Contractor observes that portions of the Contract Documents are at variance therewith, the 15 Contractor shall promptly notify the City in writing of any portions of the Contract Documents that are at variance with the applicable laws, statutes, ordinances, building codes, and rules and regulations. Q. MESERVED1 R. Authority to Contract The Contractor covenants and declares that it has obtained all necessary approvals of its board of directors, stockholders, general partners, limited partners or similar authorities to simultaneously execute and bind Contractor to the terms of this Agreement, if applicable. S. Ownership of Work All reports, designs, drawings, plans, specifications, schedules, work product and other materials prepared or in the process of being prepared for the Mork to be performed by the Contractor ("materials') shall be the property of the City and the City shall be entitled to full access and copies of all such materials. Any such materials remaining in the hands of the Contractor or subcontractor upon completion or termination of the Work shall be delivered immediately to the City. The Contractor assumes all risk of loss, damage or destruction of or to such materials. If any materials are lost, damaged or destroyed before final delivery to the City, the Contractor shall replace theta at its own expense. Any and all copyrightable subject matter in all materials is hereby assigned to the City and the Contractor agrees to execute any additional documents that may be necessary to evidence such assignment. T. Meetings The Contractor is required to meet with the City's personnel, or designated representatives, to resolve technical or contractual problems that may occur during the term of the Agreement, at no additional cost to the City. Meetings will occur as problems arise and will be coordinated by the City. The Contractor will be given a minimum of three full working days' notice of meeting date, time, and location. Face-to-face meetings are desired. However, at the Contractor's option and expense, a conference call meeting may be substituted. Consistent failure to participate in problem resolution meetings, two consecutive missed or rescheduled meetings, or to mare a good faith effort to resolve problems, may result in termination of the contract. Section g Covenants of the City A. Right of Entry The City shall provide for right of entry to the three (3) properties for Contractor in 16 order for Contractor to complete the Work. 13_ City's RWresentative Matthew Fallstrom shall be authorized to act on the City's behalf with respect to the Work as the City's designated representative; provided that any changes to the Work or the terms of this Agreement must be approved as provided in Section 6 above. Section 9 Warranty Except as may be otherwise specified or agreed, the Contractor shall repair all defects in materials, equipment, or workmanship appearing within one year from the date of Final Completion of the Project at no additional cost to the City. An inspection may be conducted by the City or its representative(s) to identify any issues that must be resolved by the Contractor. Section 1.0 Termination A. For Convenience. The City may terminate this Agreement for convenience at any time upon providing written notice thereof to Contractor. In the event of a termination for convenience, Contractor shall take immediate steps to terminate work as quickly and effectively as possible and shall terminate all commitments to third -parties unless otherwise instructed by the City. Provided that no damages are due to the City for Contractor's failure to perform in accordance with this Agreement, the City shall pay Contractor the same fraction of the Maximum Contract Price as the fraction of the Work performed to date. The City shall have no further liability to Contractor for such termination. For Cause. The City may terminate this Agreement for cause if Contractor breaches any material provision of this Agreement. The Contractor shall have no right to terminate this Agreement prior to completion of the Work, except in the event of City's failure to pay the Contractor within thirty (30) calendar days of Contractor providing the City with notice of a delinquent payment and an opportunity to cure. In the event that the City may terminates this Agreement for cause, it shall give Contractor at least seven (7) calendar days written notice of its intent to terminate the Agreement for cause and the reasons therefore, and if Contractor, or its Surety, fails to cure the default within that period, the termination shall take place without further notice. The City shall then make alternative arrangements for completion of the Project and deduct the cost of completion from the unpaid Contract Price. The City will make no payment to the Contractor or its Surety until all costs of completing the Project are paid. If the unpaid balance of the amount due the Contractor, according to this agreement, exceeds the cost of finishing the Project, the Contractor or its Surety will receive the applicable fimds due. If the costs of completing the Project exceed the unpaid balance, the Contractor or its Surety will pay the difference to the City. C. Conversion to Termination for Convenience. If the City terminates this Agreement 17 for cause, and it is later determined that the City did not have grounds to do so, the termination will be treated as a termination for convenience under the terms of this Section (A) above. D. Requirements Upon Termination. Upon termination, the Contractor shall: (1) promptly discontinue all services affected, unless the notice directs otherwise; and (2) promptly deliver to the City all data, drawings, reports, summaries, and such other information and materials as may have been generated or used by the Contractor in performing this Agreement, whether completed or in process, in the form specified by the City. E. Reservation of Ruts and Remedies. The rights and remedies of the City and the Contractor provided in this Section are in addition to any other rights and remedies provided under this Agreement or at law or in equity. Seeflon li l Miscellaneous A. Complete Agreement. This Agreement, including all of the Contract Documents, constitutes the complete agreement between the Parties and supersedes any and all other agreements, either oral or in writing, between the Parties with respect to the subject matter of this Agreement. No other agreement, statement, or promise relating to the subject matter of this Agreement not contained in this Agreement or the Contract Documents shall be valid or binding. This Agreement may be modified or amended only by a written document signed by representatives of both Parties with appropriate authorization. B. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Georgia. Any action or suit related to this Agreement shall be brought in the Superior Court of Fulton County, Georgia, and Contractor submits to the jurisdiction and venue of such court. C. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. D. Invalidily of Provisions. Should any part of this Agreement for any reason be declared by any court of competent jurisdiction to be invalid, such decision shall not affect the validity of any remaining portion, which ruining portion shall continue in full force and effect as if this Agreement had been executed with the invalid portion hereof eliminated, it being the intention of the parties that they would have executed the remaining portion of this Agreement without including any such part, parts or portions which may for any reason be hereafter declared invalid. E. Notice. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed received, and shall be effective when personally delivered or on the third day after the postmark date when mailed by certified mail, postage prepaid, return receipt requested or upon actual delivery when sent via national overnight commercial carrier to the parties at the addresses given below, unless a substitute address shall first be furnished to the other parties by written notice in accordance herewith: NOTICE TO CITY shall be sent to: City of Milton Attn: City Manager 13000 Deerfield Parkway, Suite 107F Milton, Georgia 30004 NOTICE TO CONTRACTOR shall be sent to: Southern Demolition LLC. 2497 Edwards Road Atlanta, Georgia 30318 F. Waiver of Agreement. No failure by the City to enforce any right or power granted under this Agreement, or to insist upon strict compliance by Contractor with this Agreement, and no custom or practice of the City at variance with the terms and conditions of this Agreement shall constitute a general waiver of any future breach or default or affect the City's right to demand exact and strict compliance by Contractor with the terms and conditions of this Agreement. Further, no express waiver shall affect any term or condition other than the one specified in such waiver, and that one only for the time and manner specifically stated. G. Sovereign Immunity. Nothing contained in this Agreement shall be construed to be a waiver of the City's sovereign immunity or any individual's qualified good faith or official immunities. H. Force Majeure. Neither the City nor Contractor shall be liable for their respective non -negligent or non -willful failure to perform or shall be deemed in default with respect to the failure to perform (or cure a failure to perform) any of their respective duties or obligations under this Agreement or for any delay in such performance due to: (i) any cause beyond their respective reasonable control; (ii) any act of God; (iii) any change in applicable governmental rules or regulations rendering the performance of any portion of this Agreement legally impossible; (iv) earthquake, fire, explosion or flood; (v) strike or labor dispute, excluding strikes or labor disputes by employees and/or agents of Contractor; (vi) delay or failure to act by any governmental or military authority; or (vii) any war, hostility, embargo, sabotage, civil disturbance, riot, insurrection or invasion. In such event, the time for performance shall be extended by an amount of time equal to the period of delay caused by such acts and all other obligations shall remain intact. I. Headings. All headings herein are inserted only for convenience and ease of 19 reference and are not to be considered in the construction or interpretation of any provision of this Agreement J. No Third Party Rights. This Agreement shall be exclusively for the benefit of the Parties and shall not provide any third parties with any remedy, claim, liability, reimbursement, cause of action or other right. K. Successors and Assigns. Subject to the provision of this Agreement regarding assignment, each party binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives with respect to all covenants, agreements, and obligations contained in the Contract Documents. L. Agreement Construction and Interpretation Contractor represents that it has reviewed and become familiar with this Agreement and has notified the City of any discrepancies, conflicts or errors in the Contract Documents. The Parties hereto agree that, if an ambiguity or question of intent or interpretation arises, this Agreement is to be construed as if the Parties had drafted it jointly, as opposed to being construed against a party because it was responsible for drafting one or more provisions of the Agreement. In the interest of brevity, the Contract Documents may omit modifying words such as "all" and "any" and articles such as "the" and "an," but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. M. Nondiscrimination, In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and all other provisions of Federal law, the Contractor agrees that, during performance of this Agreement, Contractor, for itself, its assignees and successors in interest, will not discriminate against any employee or applicant for employment, any subcontractor, or any supplier because of race, color, creed, national origin, gender, age or disability. In addition, Contractor agrees to comply with all applicable implementing regulations and shall include the provisions of this Section I I(M) in every subcontract for services contemplated under this Agreement. IN SS WHEREOF, the parties have caused this Agreement to be executed under seal as of the date first above written.. [SIGNATURES ON FOLLOWING PAGE] 20 Attest: i Hanes Hilliard Print Name Estimator Title Attest: Signature Print Name City Clerk Title CITY OF MILTON Joe Lockwood, Mayor 21 [CITY SEAL] EXHIBIT "E" CONTRACTOR AFFIDAVIT AND AGREEMENT STATE OF GEORGIA COUNTY OF,.� +:A By executing this affidavit, the undersigned contractor verifies its compliance with O.C.G.A. § 13-10-91, stating affirmatively that the individual, firm, or corporation which is engaged in the physical performance of services on behalf of the City of Milton has registered with, is authorized to use and uses the federal work authorization program commonly known as E -Verify, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A. § 13-10-91. Furthermore, the undersigned contractor will continue to use the federal work authorization program throughout the contract period and the undersigned contractor will contract for the physical performance of services in satisfaction of such contract only with subcontractors who present an affidavit to the contractor with the information required by O.C.G.A. § 13-10-91(b). Contractor hereby attests that its federal work authorization user identification number and date of authorization are as follows: ilid �L-7 eVerify Number 9-i1-tb Date of Authorization Southern Demolition, LLC. Name of Contractor FYI Demolition Pro}ect Name of Project City of Milton Name of Public Employer 26 I hereby declare under penalty of perjury that the foregoing is true and correct. Executed on J;.-w.A , ( _, 201 in CA (state./ A. e Signatu a of Autho zed fficer or Agent `' r, Lh c } "i A Printed Name an Title of Authorized Officer or Agent SUBSCRIBED AND SWORN BEFORE ME ON THIS THE II I%' DAY OF .2011 . T PUBLIC [NOTARY SEAL] My Commission Expires: 10-/S-fe, Hanes Hilliard NOTARY PUBLIC FlAon County, GEORGIA My Comrn. Expires 10,15016 EXIIIBIT "F" SUBCONTRAC'T'OR AFFIDAVIT STATE OF GFA)RGTA COUNTY OF CCD% Br executing this al'ficlavit, the undemigned ubcuntra:t,-wr verifir_ its eorupliance %,vith O.C.(i.A. § '.3-10-41, stating 'if irmALIVC1V Ulilt the uidivkkiai, Finn Or corporation which is engaged in the ohvsical perearmance of tervtces under :OntraC: with SC111hern Demolition, LL, .., :,n lith as ut Vie N .lty ul amiiton tins regisierea with, is autnonzea to use anal uses the federal work authorization program commonly known as E-Verifv, or any subsequent rtTlacement ,;1ugr m, 1a accordance with ti2e applicable pro-.isionsaro deadliaea established in U.C.G.A. § 13-10-91. furthermore. the undersigned subcontractor will continue to use the federal work authorization program thrmighout the contraux period, and the undersigned subcontraatx will contract for the physicai performance of services in satisfaction of such contract only with sub -subcontractors who present an affidavit to the subcontracuw with the information required try U.L:.(j.A. it 13 -i0 -91(b). Additionally, the unaa s►goed sabcomroctorwill forward notice of lite receipt of at, affidavit fioni a pub-,whcontr*00i'o 16e caxitr&ctor within uve 0) business days of reeelpL It the undersi¢nred subcontractor receives notice that a sub -subcontractor has rceeived an affidavit from NN c,,0w rnntT3cted > ir-suik�+rua.t� i, the : kier'igrlcit,utnoriirector must torwa+•cl, Within five (5) business days of receipt a copy of the notice to the contractor. Subcontractor hcreb attests that its federal work authorization user identification :iu:iiber a:ui date of authorization are as 1.6,ioAb. I ) ? �-� eVerify Nurnivef- - — - - Dau of Authorization Name of SUbccxttrector i FY 16 Demolition Project Name of Project L;ity o- f .�� Name of Public Lnlpioyer I hereby declare under penalty of perjury that the foregoing is true wdI correct t�xecuted cm c. 7A-, 201 _- is 5ignaturc of Autliorircd Officrr or Agcnt Printed Name and 1 itic of Authorized Officer or Agent 4tmsrRTRFD AVDSWORN SFFCTU 1iF �ti t ii1S i H DA Y OF 'NOTARY PUBLIi: - - - [NOTARY SEAL] TONYA OUELLME -jOTARY PUELIC Cobtb County . ,Cte of Georgic. AA' Cccnrn. Expires Apr. 27, 20161�' Pmmissior, Fxpaes-__ TO CITY OF MILTON, GEORGIA I, hereby certify that all suppliers of materials, equipment and service, subcontractors, mechanics, and laborers employed by Southern Demolition, LLC or any of its subcontractors in connection with the Demolition of all structures included in the FY 16 Demolition Project have been paid and satisfied in full as of , 20 , and that there are no outstanding obligations or claims of any kind for the payment of which the City on the above named project might be liable, or subject to, in any lawful proceeding at law or in equity. Signature Title Personally appeared before me this day of , 20 who under oath deposes and says that he is of the firm of that he has read the above statement and that to the best of his knowledge and belief same is an exact true statement. Notary Public [NOTARY SEAL] My Commission Expires EXEIEIBIT "H-2" PAYMENT BOND CITY OF MULTON Southern Demolition, LLC dba KNOW ALL MEN BY THESE PRESENTS THAT Southern Demolition and Environmental (as CONTRACTOR, hereinafter referred to as the "Principal"), and American Southern Insurance Company (as SURETY COMPANY, hereinafter referred to as the "CONTRACTOR' S SURETY), are held and firmly bound unto the City of Nfilton, Georgia (as OWNER, hereinafter referred to as the "Chn, for the use and benefit of any `-Claimant," as hereinafter defined, in the sura of twenty-seven thousand six hundred and no/100 Dollars ($_27.,.60o -go), lawful money of the United States of America, for the payment of which the Principal and the Contractor's Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has entered, or is about to enter, into a certain written agreement with the City, dated the f" — day of �,nv �:� � 20J,4, which is incorporated herein: by reference in its entirety (hereinafter referred to as the "CONTRACT"), for the construction of a project known as the FY 16 Demolition Project, (hereinafter referred to as "the PROJECT"). NOW THEREFORE, the condition of this obligation is such that if the Principal shall promptly make payment to any Claimant, as hereinafter defined, for all labor, services, and materials used or reasonably required for use in the performance of the Contract, then this obligation shall be void; otherwise to remain in full force and effect. A "Claimant" shall be defined herein as any Subcontractor, person, Party, partnership, corporation, or other entity furnishing labor, services, or materials used or reasonably required for use in the performance of the Contract, without regard to whether such labor, services, or materials were sold, leased, or rented, and without regard to whether such Claimant is or is not in privity of the Contract with the Principal or any Subcontractor performing Work on the Project. In the event of any claire made by the Claimant against the City, or the filing of a Lien against the property of the City affected by the Contract, the Contractor's Surety shall either settle or resolve the Claim and shall remove any such Lien by bond or otherwise as provided in the Contract. The Parties further expressly agree that any action on this Bond may be brought within the time allowed by Georgia law for suit on contracts under seal. IN WITNESS WHEREOF, the Principal and Contractor's Surety have hereunto affixed their corporate seals and caused this obligation to be signed by their duly authorized officers on -P„ 1-1— this day of 20 N CONTRACTOR: Southern Demolition, LLC dba Southern Demolitign and Environmental By. (printed) J Title: '-o Fm;d td-- (SEAL) (Signatures Continued from Previous Page) Attest: ✓° - �'"" (signature) �f-1 n"' , Aroma (printed) Title: Date: LII It, Attest: � -- _r � (signature) Tracy Sauerhoefer (printed) Title: U/W Assistant Date: 01-06-2016 CONTRACTOR'S SURETY: American South nsura Company By: (sipature) Arthu. . "ohnson (printed) Title: Attorney -in -Fact (SEAL) c- (ATTACH SURETY'S POWER OF ATTORNEY) E �1T uH V PERFORMANCE BOND CITY OF MILTON Southern Demolition, LLC dba KNOW ALL MEN BY TIRESE PRESENTS THAT Southern Demolition and Environmental (as CONTRACTOR, hereinafter referred to as the "Principal"), and American Southern Insurance Company (as SURETY COMPANY, hereinafter referred to as the "CONTRACTOR'S SURETY"), are held and firmly bound unto the City of Milton, Georgia (as OWNER, hereinafter referred to as the twenty-seven thousand "City'), for the use and benefit the City, in the suln of` _ six hundred and no/100 Dollars (S 27.600. od ,lawful money of the United States of America, for the payment of which the Principal and the Contractor's Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has entered, or is about to enter, into a certain written agreement with the City, dated the I I �, of20/, L, which is incorporated herein by reference in its entirety (hereinafter referred to as the "CONTRACT"), for the construction of a project known as the FY 16 Demolition Project, (hereinafter referred to as "the PROJECT). NOW THEREFORE, the conditions of this obligation are as follows: 1. That if the Principal shall fully and completely perform each and all of the terms, provisions and requirements of the Contract, including and during the period of any warranties or guarantees required thereunder, and all modifications, amendments, changes, deletions, additions, and alterations thereto that may hereafter be made, and if the Principal and the Contractor's Surety shall indemnify and hold harmless the City from: any and all losses, liability and damages, claims, judgments, liens, costs and fees of every description, including but not limited to, any damages for delay, which the City may incur, sustain or suffer by reason of the failure or default on the part of the Principal in the performance of any and all of the terms, provisions, and requirements of the Contract, including all modifications, amendments, changes, deletions, additions, and alterations thereto, and any warranties or guarantees required thereunder, then this obligation shall be void; otherwise to remain in full force and effect; 2. In the event of a failure of performance ofthe Contract by the Principal, which shall include, but not be limited to, any breach or default of the Contract: a. The Contractor's Surety shall commence performance of its obligations and undertakings under this Bond no later than thirty (30) calendar days after written notice from: the City to the Contractor's Surety; and b. The means, method or procedure by which the Contractor's Surety undertakes to perform its obligations under this Bond shall be subject to the advance written approval of the City. The Contractor's Surety hereby waives notice of any and all modifications, omissions, additions, changes, and advance payments or deferred payments in or about the Contract, and agrees that the obligations undertaken by this Bond shall not be impaired in any manner by reason of any such modifications, omissions, additions, changes, and advance payments or deferred payments. The Parties further expressly agree that any action on this Bond may be brought within the time allowed by Georgia law for suit on contracts under seal. IN WITNESS W1tIEREOF, the Principal and Contractor's Surety have hereunto affixed their corporate seals and caused this obligation to be signed by their duly authorized officers or attorneys -in -fact, this day of 201, . CONTRACTOR, ("Principal"): Southern Demolition, LLC dba Southern Demolition arNf Environm I By: �i(sign lzre) ' CI �.1— 'I r, r, (print) Attest: Title: 7 (SEAL) ....,ice- (signature) �►^S ,�rfl Kra (print) Title: �iSTI Date: Attest: (signature) Tracy Sauerhoefer (print) Title: LIM Assistant Date: 01-06-2016 CONTRACTOR'S SURETY: American Southern Insurance Company By (signature) Arthur S. Johnson (print) Title: Attorney -in -Fact (SEAL) (ATTACH SURETY'S POWER OF ATTORNEY) AMERICAN SOUTHERN INSURANCE COMPANY Home Office: 3715 Northside Parkway, NW Mailing Address: P. O. Box 723030 Suite 4-800 Atlanta, GA 31139-0030 Atlanta, Georgia 30327 GENERAL POWER OF ATTORNEY Know all men by these Presents, that the American Southern Insurance Company had made, constituted and appointed, and by these presents does make, constitute and appoint Stefan E. Tauger of Parker, Colorado; Brian A. O'Neal of Parker, Colorado; Scott E. Stoltzner of Hoover, Alabama; Arthur S. Johnson of Atlanta, Georgia; Andrew C. Heaner of Atlanta, Georgia; Richard L. Shanahan of Atlanta, Georgia; Jeffery L. Booth of Parma, Ohio; James E. Feldner of West Lake, Ohio; Patricia E. Martin of Lutz, Florida; David R. Brett of Columbia, South Carolina; Melanie J. Stokes of Atlanta, Georgia; Jason S. Centrella of Jacksonville, Florida; Brian Clark of Matthews, North Carolina; Michael K. Thompson of Atlanta, Georgia; Kelley E.M. Nys of Decatur, Georgia; or Diane L. McLain of Fitchburg, Wisconsin, EACH as its true and lawful attorney for it and its name, place and stead to execute on behalf of the said company, as surety, bonds, undertakings and contracts of suretyship to be given to all obligees provided that no bond or undertaking or contract of suretyship executed under this authority shall exceed in amount of the sum of $1,000,000 (one million dollars), including but not limited to consents of surety for the release of retained percentages and/or final estimates on construction contracts or similar authority requested by the Department of Transportation, State of Florida; and the execution of such undertakings, bonds, recognizances and other surety obligations, in pursuance of the presents, shall be as binding upon the Company as if they had been duly signed by the President and attested by the Secretary of the Company in their own proper persons. This Power of Attorney is granted and is signed and sealed by facsimile under and by the authority of the following Resolution adopted pursuant to due authorization by the Executive Committee of the Board of Directors of the American Southern Insurance Company on the 26th day of May, 1998: RESOLVED, that the Chairman, President or any Vice President of the Company be, and that each or any of them hereby is, authorized to execute Powers of Attorney qualifying the attorney named in the given Power of Attorney to execute in behalf of the American Southern Insurance Company bonds, undertakings and all contracts of suretyship; and that any Secretary or any Assistant Secretary be, and that each or any of them hereby is, authorized to attest the execution of any such Power of Attorney, and to attach thereto the seal of the Company. FURTHER RESOLVED, that the signature of such officers and the seal of the Company may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile, and any such Power of Attorney or certificate bearing such facsimile signatures or facsimile seal shall be valid and binding upon the Company when so affixed and in the future, with respect to any bond undertaking or contract of suretyship to which it is attached. In Witness Whereof, the American Southern Insurance Company has caused its official seal to be hereto affixed, and these presents to be signed by its President and attested by its Secretary this 6th day of October, 2014. Attest: B American Southern Insurance Company Y Gail A. Lee, Secre ary STATE OF GEORGIA Scott G. Thompson, President SS: COUNTY OF FULTON On this 6th day of October, 2014, before me personally came Scott G. Thompson to me known, who being by me duly sworn, did depose and say that he resides in Atlanta, in the County of Fulton, State of Georgia, at 421 Hollydale Court; that he is the President of American Southern Insurance Company, the corporation described in and which executed the above instrument; trthha�aatt ghee,knows the seal of the said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed and that he signed his�r}aYne theret pursuant t orizajio� Candace .Chea am STATE OF GEORGIA Notary Public, State of Georgia SS: Qualified in DeKalb County COUNTY OF FULTON Commission Expires December 7, 2017 1, the undersigned, a Vice President of American Southern Insurance Company, a Kansas Corporation, DO HEREBY CERTIFti�rtbgtitf q jf regoing and attached Power of Attorney remains in full force and has not been revoked; and, furthermore, that the Resolution of the Exe,alti%Co�trtiie���f the Board of Directors set forth in the Power of Attorney is now in force. ��� G F� / Signed and sealed a, 'he City of Atlanta, Dated the day of G s; 01ARk 0% cam` PuBtt6G John R. not ��``�q ' i2 PIR 1. O4q: Power No. 39221 Vice President UNN,G .`\\. CERTIFICATE OF COQMUTY MU o A VIC E DATE(NrWDDIYYYY) 01/05/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE [POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONYRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL MSURED, the Ipolicy(ies) must be endorsed. If SUERIOGATION BS UVAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the cenIficate holder In lieu of such endorsement(s). PRODUCER CONTACT NAME: Steve Jordan Environmental Contractors Ins Agency Inc. 6060 Sunrise Vista Dr. Ste X31325 PHC ft,EII � (916) 910-9648 F No ; (916) 745-4025 _ E-MAIL CG DRESS: Steve ADEnviro-ins.com INSURERS) AFFORDING COVERAGE NAIC S _ INSURER A: ROCKHILL INSURANCE COMPANY 28053 Citrus Heights CA 95628 INSURED — -- INSURER B: INSURER C : Southern Demolition LLC INSURER D: 2497 Edwards Drive INSURER E: _ I ENVP001845-02 INSURER F! Atlanta GA 30318 COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE �ADDL I..UBtdj-- , - S IM/M9 POLICY t'SU;1®EI3 POLICY EFF 11J WDD/YYYY POLICY E}rP MM/DD/YYYY LIMITS X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE I J OCCURj EACH OCCURRENCE I $ 1,000,000 E O RENTED—F PREMISES occurrence $ 100,000 A X Pollution i ! i I ENVP001845-02 03/20/2015 03/20/2016 MED EXP (Any one person) $ 5,000 x Professional PERSONAL &ADV INJURY $ 1,000,000 GEN`L AGGREGATE LIMIT APPLIES PER: POLICY FI JECT El LOC GENERAL AGGREGATE $ 2,000,000 PRODUCTS - COMP/OP AGG $ 2,000,000 CPL/PL $ 2,000,000 OTHER: AUTO".',OSILE LIABILITY COMBINED SINGLE LIMIT $ SEaaccident _-_---- ___ ANY AUTO 1 BODILY INJURY (Per person) $ ALL OWNED SCHEDULED AUTOS AUTOS accident) $ BODILY INJURY (Per a NON -OWNED HIRED AUTOS AUTOS _ PROPERTY DAMAGE Per accident $ $ UMBRELLA LIAROCCUR EACH OCCURRENCE S 2,000,000 A XEXCESS LIAB CLAIMS -MADE ENVE0018466-02 03/20/2015 03/20/2016 AGGREGATE $ 2,000,000 X DED RETENTIONS 10,000 $ WORKERS COMPENSATION AND EMPLOYERS' UABKJTY YIN ANY PROPRIETOR/PARTNER/EXECUTIVE ❑I OFFICER MEMBER EXCLUDED? N / A PER OT STATUTE ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYE $ (Mandatory in NH) If es, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $ I DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACC RD 101, Additional Remarks Schedule, may be attached If more space is required) City of Milton is named as additional insured as respects insured's operations. "30 days notice of cancellation except 10 -days for non-payment of premium. � u uu-u�c u L�_ lia6WW149=11LAI IUN City of Milton 13000 Deerfield Pkwy, Ste 107F Milton GA 30004 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE O 1988-2014 ACORD CORPORATION. All Irlgthts reserved). ACCORD 25 (2014f09) The ACORD naivia and Ingo are registered) narks of ACORD SOUTDEM-01 RCHOWDARY CERTIFICATE LIABILITY INSURANCE DATE(MMIDDIYYYY) 1/6/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER License # 0757776 HUB International Insurance Services Inc. 333 West El Camino Real, Suite 330 Sunnyvale, CA 94087 NE CT MlCheii@ Vargas PHONE 9 FAX c No Eal. (650 ) 64-6000 AIC No): (650) 964-0816 ADDRESS: cal.cpu@hubintemationai.com INSURER(S) AFFORDING COVERAGE MAIC tf INSURER A: Hartford Insurance Group 1914 INSURED INSURER a: Travelers Property Casualty Insurance Company 36161 Southern Demolition, LLC DBA: Southern Demolition & Env INSURER C: INSURER D: 2497 Edwards Drive INSURER E: Atlanta, GA 30318 INSURER F: t+VVtr{AIGES CERTIFICATE NUMIRF_R• 0=14icinki wtn112131=0. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. 'NSR LTR TYPE OF INSURANCE INSD WVO POLICY NUMBER PCU EFF POLICY EXP LIMITS COMMERCIAL GENERAL LIABILITY CLAIMS-MADEOCCUR EACH OCCURRENCE $ PREMISES Ea occurrence $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER: POLICY ❑ PRO. 17 JECT �J LOC GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ $ OTHER: AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ Ea accident BODILY INJURY (Per person) $ ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS BODILY INJURY (Per accident) $ HIRED AUTOS NON -OWNED AUTOS PROPERTY DAMAGE Per accident $ UMBRELLA UAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS -MADE AGGREGATE $ DED RETENTION $ $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N_X ANY PROPRIETOR/PARTNERIEXECUTiVEy j OFFICERUMEMBER EXCLUDED? ° � N I A 6S60US-OG17441-7-15 06127120155 06127/2016 I STATUTE ER E.L. EACH ACCIDENT $ 1,000,04 E.L. DISEASE - EA EMPLOYE0 $ 1,040,04 (Mandatory in NH) If es, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT 1 $ 1,400,000 R Rented/Leased 6602A540935 06/0112015 06/01!2016 250,040 DESCRIPTION Of OPERATIONS /LOCATIONS /VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Verification of Insurance. City of Milton 13000 Deerfield Parkway Suite 107F Milton, GA 30004 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE 4�?,"XzrliIl X__ V 19BB-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014101) The ACORD name and logo are registered marks of ACORD Client#: 1547432 79SOUTHDEM CERTIFICATE OF LIABILITYNSURANCE DATE (MMlDD)YYYY) TM 1 1 1/06/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCERA NAME: COI Team BB&T - Reese Insurance PHONEAX Fuc No Ext): A/C, No : 770 477-6908 741 !West Lanier Avenue Suite 100 E-MAIL CertificatesGA@BBandT.com Fayetteville, GA 30214 COMMERCIAL GENERAL LIABILITY r l CLAIMS -WADE u OCCUR INSURER(S) AFFORDING COVERAGE MAIC # INSURERA : Progressive Mountain Insurance 35190 INSURED Southern Demolition LLC dba INSURER B INSURER C: Southam Demolition and Environmental INSURER 0: 2497 Edwards Drive INSURER E: Atlanta, GA 30318 INSURER F: %ry V V-MMW eel utamfi-IGA I t IVummt!H[ 09nitetn6r wn m®oco. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED `NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, LTR TYPE OF INSURANCE ADDL INSR SUB WVD POLICY NUMBER POLICY EFF MMIDD POLICY EXP MWDD/YYYY LIMITS GENERAL LIABILITY EACH OCCURRENCE $ COMMERCIAL GENERAL LIABILITY r l CLAIMS -WADE u OCCUR R�IMISS sAGF S1(eENTED oceurrence $ MED EXP (Arty one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PI LOC PRODUCTS - COMP/OP AGG $ $ A AUTOMOBILE X LIABILITY ANY AUTO ALL OWNED SCHEDULED AUTOS � AUTOS X 0821 14 0812412015 08/24/201 (Ea Ma erDasINGLE LIMIT 1 000 000 r BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ HIRED AUTOS NON -OWNED AUTOS PROPERTY DAMAGE (For accident $ UMBRELLA LIAR OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS -MADE AGGREGATE $ DED RETENTION $ $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITYIER ANY PROPRIETOR/PARTNER/EXECUTIVE Y / N OFFICER/MEMBER EXCLUDED? N / A WC STATU- OTH- E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ (Mandatary in describe under II yder as, E.L. DISEASE - POLICY LIMIT $ DESCRIPTION OF OPERATIONS below DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space is required) Certificate Holder is included as Additional Insured with respect to the Auto Liability when required by written contract. City of Milton 13000 Deerfield Pkwy, Ste 107F Milton, GA 30004 ACORD 25 (2010105) 1 of 1 #S153974471M14689770 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE v 1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD RJLO EVEN HOME OF ' ESTABLISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: January 21, 2016 FROM: City Manager AGENDA ITEM: Consideration of RZ16-01 -To Amend the Deerfield Form Based Code, Chapter 64, Article XX, Article 1 - General. MEETING DATE: Monday, February 1, 2016 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: APPROVED (J NOT APPROVED CITY ATTORNEY APPROVAL REQUIRED: X YES (J NO CITY ATTORNEY REVIEW REQUIRED: OYES (J NO APPROVAL BY CITY ATTORNEY X APPROVED () NOT APPROVED PLACED ON AGENDA FOR: 0201 �b REMARKS ® Youa _ al �Cetifird kiF�toO PHONE: 678.242.25001 FAX: 678.242.2499 infoftiltyofmiltonga.us I www.cityofmiltonga.us ,,,, Community 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 To: The Honorable Mayor and City Council From: Kathleen Field, Community Development Director Date: Submitted January 28, 2016 for the February 17, 2016 Regular Meeting (February 1, 2016 First Presentation) Re: Consideration of RZ16-01– To Amend the Deerfield Form Based Code, Chapter 64, Article XX, Article 1 – General. Department Recommendation: The Community Development Department recommends approval of the proposed text amendment discussed below. Executive Summary: This text amendment proposes parcels within the Deerfield Form Based Code that are restricted to a maximum of two stories, south of Bethany Bend to receive Transfer of Development Rights (TDRs) from other sending areas of the City. The Planning Commission at its January 27, 2016 meeting unanimously recommended approval of this text amendment. Funding and Fiscal Impact: None anticipated. Alternatives: The Mayor and City Council may approve the amendment as proposed and/or recommend further amendments to the text amendments discussed. Legal Review: Paul Frickey - Jarrard & Davis (January, 2016) Concurrent Review: Community Development Staff Attachment(s): Text Amendment and Ordinance for RZ16-01 RZ16-01 - Text Amendment Prepared for the City of Milton Mayor and City Council Meeting on February 17, 2016 (First Presentation February 1, 2016). 1/28/2016 Page 1 1.6 - DENSITY CALCULATIONS 1.6.1 Applicability a. The requirements of this Section 1.6 apply to all areas except the Five Acre Road Density Zone. b. In the Five Acre Road Zone, density may not exceed 10,000 square feet of floor area per acre of Gross Site Area, regardless of Transect Zone or Special District. 1.6.2 Density shall be expressed in building units per acre as specified by Transect Zone in Table 11 section a. 1.6.3 The maximum Density of a site shall be calculated by multiplying the Transect Zone's Density identified in Table 11 section a by the Gross Site Area. Where a site includes multiple Transect Zones, each shall be calculated independently. The area of new Thoroughfares and Civic Spaces on the site shall be allocated to the closest Transect Zone(s) on the site. Where a Thoroughfare or Civic Space adjoins multiple Transect Zones, their area shall be proportionally allocated to the adjoining zones. 1.6.4 Where a site is subdivided into lots, a lot's Density may exceed the Density of the Transect Zone within which it lies, provided that the maximum Density of the Transect Zone for the site as whole as established in Section 1.6.3 is not exceeded. 1.6.5 Building units or fractions thereof shall be exchanged for Functions at the following rates as established in Table 9B: a. Residential: 1 dwelling unit for each building unit. b. Lodging: 2 guest rooms for each building unit. c. Office: 2,250 square feet for each building unit. d. Retail: 2,250 square feet for each building unit. e. Other: 2,250 square feet for each building unit. 1.6.6 Where the exchange of building units for Functions results in a fraction, the fraction shall be rou nded down to the nearest whole number of dwelling units, guest rooms, or square feet as established in Section 1.6.5. 1.6.7 Accessory Units do not count toward Density calculations. 1.6.8 Civic Buildings do not count towards Density calculations. 1.6.9 Senior housing units approved by use permit in accordance with Section 64-1834 do not count toward the Density calculations of This Code and are subject to those of Sections 64 -1834. 1.6.10 The Base Density of a site may be increased by the Transfer of Development Rights (TDR) up to the amount specified for each zone by Table 11 section (a.), subject to the provisions of Section 1.7, except that use of TDR is not permitted in the Maximum Two Story Height Zone north of the centerline of Bethany Bend as depicted on the Regulating Plan, as prohibited in Section 1.7.6. (Ord. No. 15-04-240, § 1, 4-27-2015) 1.7 - TRANSFER OF DEVELOPMENT RIGHTS 1.7.1 Purpose: The TDR mechanism is intended to encourage the voluntary redirection of future growth from areas where Milton wants reduced development into areas designated for development. Land owners can voluntarily choose to have their properties considered as either Open Space TDR Sending Sites or RZ16-01 - Text Amendment Prepared for the City of Milton Mayor and City Council Meeting on February 17, 2016 (First Presentation February 1, 2016). 1/28/2016 Page 2 Park/Greenway TDR Sending Sites. Open Space TDR Sending Sites remain under private ownership subject to a conservation easement permanently limiting future development. Park/Greenway TDR Sending Sites are transferred from private ownership to the City of Milton or otherwise secured for public access in a manner acceptable to the City. In return for voluntarily participating in the TDR program, private property owners receive Transferable Development Rights (TDRs) which can be transferred for use at designated TDR Receiving Sites. 1.7.2 TDR Sending Site Criteria a. Open Space TDR Sending Sites shall be parcels that are a minimum of 2 acres in size and zoned T2 within This District or a minimum of 2 acres in size and located outside This District but within the subarea of parcels fronting Bethany Bend from Hopewell Ro ad east to the Forsyth County Line, and parcels fronting Cogburn Road from Devonshire Farms Way south to Bethany Bend. With the exception of the parcels described in the preceding sentence, all other Open Space TDR Sending Sites shall be a minimum of 5 acres in size and zoned AG- 1 outside This District. All Open Space TDR Sending Sites shall contain natural or agricultural features whose retention would implement Milton's goals for maintaining significant environmental areas, rural character and open space. Parcels shall not qualify if the restrictions that would be imposed by a conservation easement have already been established by a preexisting easement or similar instrument. b. Park/Greenway TDR Sending Sites shall be a minimum of one acre in size, unocc upied by any residences or other improvements that would render the site unusable for public access and shall be designated as suitable for Park, Greenway, Civic Space, trail or other public recreational uses in a plan or code adopted by the City. 1.7.3 TDR Sending Site Approval Process a. Open Space TDR Sending Sites: Property owners may offer their land as Open Space TDR Sending Sites using application forms provided by the community development department. If the community development director finds that the proposed property meets the criteria, he/she shall the approve the application and oversee the execution and recordation of a permanent conservation easement, approved by the community development director, that limits future development of the sending site to a density of no more than one dwelling per parcel or one dwelling per full 25 acres, whichever Density is greater. The easement shall specify that all other uses, building requirements and activities shall be controlled by the provisions of the T2 zone for parcels within This District and the provisions of the AG-1 zoning district for parcels outside This District. b. Park/Greenway TDR Sending Sites: Property owners may offer their land as Park/Greenway TDR Sending Sites using application forms provided by the community development department. If the property owner proposes to transfer title to Milton, the change of ownership shall pertain to the entire parcel. If the community development director finds that the proposed property meets the criteria for a Park/Greenway TDR Sending Site, he/she shall approve the application and oversee the transfer of title to the City of Milton or an agency/organization authorized by the City Council for approval. A permanent public access easement approved by the community development director may be used instead of title transfer if the proposed easement would implement all preservation and public recreational goals for the site in question, subject to the approval of the City Council. This easement may apply to all or a portion of a single parcel as long as the portion subject to the easement is at least one acre in size. If a Park/Greenway TDR Sending Site is secured by easement rather than City ownership, the easement shall permanently prohibit all residentia l development, shall preclude any improvements that would impede site use for public purposes and shall specify that all other uses and activities will be controlled by the provisions of the T2 for parcels within This District or the provisions of the AG -1 zoning district for parcels outside This District, 1.7.4 TDR Allocation RZ16-01 - Text Amendment Prepared for the City of Milton Mayor and City Council Meeting on February 17, 2016 (First Presentation February 1, 2016). 1/28/2016 Page 3 a. Open Space TDR Sending Sites: Upon recordation of an approved conservation easement, the community development director shall deduct the area of land precluded from development by preexisting easements and issue TDRs to the owners of Open Space TDR Sending Sites using the following formula: i. One TDR per full acre of Unconstrained Land ii. Plus one TDR per four full acres of Constrained Land iii. Plus one TDR per each full five acres of land subtotaled under i. and ii. in excess of five acres b. Park/Greenway TDR Sending Sites: Upon title transfer or recordation of an approved public access easement, the community development director shall deduct the area of land precluded from development by preexisting easements and issue TDRs to the owners of Park/Greenway TDR Sending Sites using the following two-step process Step One: calculate the total number of TDRs produced by i, ii and iii below: i. One TDR per full acre of Unconstrained Land ii. Plus one TDR per four full acres of Constrained Land iii. Plus one TDR per each full five acres of land subtotaled under i. and ii. in excess of five acres. Step Two: Multiply the total from Step One by a factor of 1.25. c. Civic Space TDR Sending Sites: Upon title transfer or recordation of an approved public access easement, the community development director shall deduct the area of land precluded from development by preexisting easements and issue TDRs to the owners of Park/Greenway TDR Sending Sites designated as suitable for Civic Spaces in an adopted plan or code using the following two-step process. Step One: calculate the total number of TDRs produced by i, ii and iii below: i. One TDR per full acre of Unconstrained Land ii. Plus one TDR per four full acres of Constrained Land iii. Plus one TDR per each full five acres of land subtotaled under i. and ii. in excess of five acres. Step Two: Multiply the total from Step One by a factor of 1.5. 1.7.5 TDR Transfers: The community development director shall establish and administer a process for documenting and monitoring the issuance, transfer and permanent extinguishment of TDRs when they are used to increase density in a TDR Receiving Site development. TDR Sending Site property ow ners who are issued TDRs may retain them, transfer them directly to TDR Receiving Site developers or transfer them to intermediaries who may also retain them or transfer them to TDR Receiving Site developers. The City of Milton may but is not obligated to buy, hold and resell TDRs. The City may also sever TDRs from land that it buys after the effective date of this ordinance for Parks and Greenways and sell these TDRs for use in TDR Receiving Site developments. The price paid for TDRs is determined by negotiation between TDR buyers and sellers. 1.7.6 TDR Receiving Sites: TDRs may be transferred to the TDR Receiving Sites designated by This Code and any additional TDR Receiving Sites designated by the City. Parcels located within the Maximum Two Story Height Zone north of the centerline of Bethany Bend as depicted on the Regulating Plan shall not RZ16-01 - Text Amendment Prepared for the City of Milton Mayor and City Council Meeting on February 17, 2016 (First Presentation February 1, 2016). 1/28/2016 Page 4 serve as TDR Receiving Sites. TDR Receiving Site owners can build at or below the Base Densities established by Code without any use of TDRs. However, owners who choose to do so may exceed the Base Densities and achieve the established maximum densities at the transfer ratio set forth in Section 1.7.7. 1.7.7 TDR Transfer Ratio: Pursuant to This Code, developers of projects on TDR Receiving Sites may use the TDRs to exceed Base Densities and achieve the maximum code -allowed Density at the transfer ratio of four building units per full TDR. Building Units shall be exchanged for Functions as set forth in Section 1.6.5. 1.7.8 Unified Sending/Receiving Site: A TDR Sending Site and a TDR Receiving Site may occur on a single parcel if the respective portions of the parcel meet all criteria. TDRs from the Sending Site portion of the parcel shall be allocated using the formula provided in 1.7.4 except TDRs shall not be gran ted open space and Greenway dedications that are required as a condition of site development. TDRs from the TDR Sending Site portion of the parcel may be transferred to the TDR Receiving Site portion of the parcel, transferred to a separate TDR Receiving Site or to any combination of on-site and off-site TDR Receiving Sites. 1.7.9 Reserved. 1.7.10 Compliance Requirements a. When the use of TDR results in divisions of land, TDR compliance shall occur prior to final subdivision map approval. b. When the use of TDR results in additional Density without a division of land, TDR compliance shall occur prior to building permit issuance. c. In no event shall any component of this TDR program have application to any TDR Sending Site or TDR Receiving Site outside the jurisdictional boundary of the City of Milton. (Ord. No. 15-04-240, § 1, 4-27-2015) STATE OF GEORGIA ORDINANCE____ COUNTY OF FULTON RZ16-01 AN ORDINANCE TO AMEND ARTICLE_XX, ARTICLE 1 – GENERAL OF THE DEERFIELD FORM BASED CODE OF THE CITY OF MILTON ZONING ORDINANCE (CHAPTER 64 OF THE CITY CODE OF ORDINANCES) BE IT ORDAINED by the City Council of the City of Milton, GA while in a regularly called council meeting on February 17th, 2016 at 6:00 p.m. as follows: SECTION 1. That the amendment of Article XX, Article 1 – General of the Deerfield Form Based Code of the City of Milton Zoning Ordinance is hereby adopted and approved; and is attached hereto as if fully set forth herein, and; SECTION 2. All ordinances, parts of ordinances, or regulations in conflict herewith are repealed. SECTION 3. That this Ordinance shall become effective upon its adoption. ORDAINED this the 17th day of February, 2016 __________________ Joe Lockwood, Mayor Attest: ___________________________ Sudie AM Gordon, City Clerk (Seal) HOME OF' -'�FO N it ESTABLISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: January 21, 2016 FROM: City Manager AGENDA ITEM: Consideration of an Ordinance to Adopt Amendments to the Fiscal 2016 Budget for Each Fund of the City of Milton, Georgia Amending the Amounts Shown in Each Budget as Expenditures, Amending the Several Items of Revenue Anticipations, Prohibiting Expenditures to Exceed Appropriations, and Prohibiting Expenditures to Exceed Actual Funding Available. MEETING DATE: Monday, February 1, 2016 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: APPROVED (J NOT APPROVED CITY ATTORNEY APPROVAL REQUIRED: (J YES K NO CITY ATTORNEY REVIEW REQUIRED: (J YES KNO APPROVAL BY CITY ATTORNEY (J APPROVED (1 I`1OT,APP,ROVED PLACED ON AGENDA FOR: OZ -0 11(0 ® You — *** PHONE: 678.242.25001 FAX: 678.242.2499 0 iC en IOU info@cityofmllltonga.us I www.cityofmilfonga.us WILDLIFE Community ; sii;icf 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 City of Milton, Georgia Fiscal Year 2016 Summary of Departmental Budget Amendments The goal of the fiscal year 2016 budget amendment is to revise departmental budgets and interfund transfers based on activity-to-date and future projections. GENERAL FUND The General Fund is the principal operating fund of the government and is used to facilitate current year operations. General Fund revenues have unrestricted use. Expenditure requests are categorized into two categories: Salary and Benefits and Maintenance and Operating. Salary and benefits line items include salaries, overtime, vacation pay, retirement and other associated payroll expenditures. The maintenance and operating category includes expenditures related to operational line items such as, supplies, professional fees, training, dues and fees, travel, utilities, communications, machinery & equipment, etc. GENERAL FUND SUMMARY: Revenue Appropriation Increase - Expenditure Appropriation Increase 19,006 Net Revenue/(Expenditure) Requests:(19,006) Revenue Amendments: At this time, there are no necessary amendments needed for the revenue accounts as they are currently tracking as projected. We will continue to monitor the collections closely and will bring forth any changes, if needed. Expenditure Amendments: Explanations for each of the amendments to the expenditure accounts are provided within the departmental budget spreadsheets following. FY 2016 Budget Amendment #1 1 of 17 General Fund Summary Approved Budget Requested Budget Amendment Amended Budget Revenues Taxes 22,790,894 24,698,793 24,178,200 - 24,178,200 Licenses & Permits 924,737 911,175 859,000 - 859,000 Intergovernmental Revenues 1,711 - - - - Charges for Services 615,982 502,208 600,000 - 600,000 Fines & Forfeitures 582,169 565,331 550,000 - 550,000 Investment Income 22,127 30,220 20,450 - 20,450 Contributions & Donations 2,357 3,420 - - - Miscellaneous Revenue 53,539 102,233 47,628 - 47,628 Other Financing Sources 36,761 50,416 38,000 - 38,000 Total Revenues 25,030,278 26,863,797 26,293,278 - 26,293,278 Expenditures Mayor & Council 143,961 157,650 171,375 - 171,375 City Manager 536,496 649,758 705,273 - 705,273 City Clerk 172,811 169,046 193,574 - 193,574 General Administration 38,503 45,313 43,557 - 43,557 Finance 383,331 388,008 427,877 - 427,877 Legal 299,448 223,903 230,000 - 230,000 Information Technology 532,035 713,472 863,103 (25,900) 837,203 Human Resources 267,537 247,351 341,602 - 341,602 Risk Management 183,009 215,723 216,328 - 216,328 General Govt Buildings 453,260 385,455 396,421 - 396,421 Communication & Engagement 197,793 344,653 309,345 - 309,345 Municipal Court 254,698 269,768 335,708 (12,000) 323,708 Police 3,157,817 3,683,636 4,202,095 - 4,202,095 Fire 5,099,302 5,418,784 5,997,260 - 5,997,260 Public Works 1,742,108 1,866,809 2,029,695 56,906 2,086,601 Parks & Recreation 748,116 839,510 1,509,405 - 1,509,405 Community Development 1,028,155 736,902 688,885 - 688,885 Economic Development 78,313 50,288 78,588 - 78,588 Debt Service 90,769 179,117 - - - Other Financing Uses 8,313,444 11,277,882 12,564,834 - 12,564,834 Contingency - - 187,401 - 187,401 Total Expenditures 23,720,905 27,863,027 31,492,326 19,006 31,511,332 Total Revenues Over/(Under) Expenditures 1,309,372 (999,231) (5,199,048) (19,006) (5,218,054) Beginning Fund Balance 9,489,374 10,798,747 9,799,516 9,799,516 9,799,516 Ending Fund Balance 10,798,747 9,799,516 4,600,468 9,780,510 4,581,462 FY 2016 Unaudited Actuals FY 2015 Actuals FY 2014 FY 2016 Budget Amendment #1 2 of 17 Information Technology Account Name Approved Budget Requested Budget Amendment Amended Budget Actuals as of 1/26/16 Budget Remaining (after adj) Salaries & Wages SALARIES & WAGES/REGULAR EMPLOYEES 77,901 87,352 89,793 ‐ 89,793 22,624 67,169 Total: Salaries & Wages 77,901 87,352 89,793 ‐ 89,793 22,624 67,169 Employee Benefits GROUP INSURANCE 11,905 13,372 11,670 ‐ 11,670 5,128 6,542 401A (SS MATCH)2,921 3,276 3,343 ‐ 3,343 848 2,495 FICA MEDICARE 1,089 1,196 1,293 ‐ 1,293 310 983 401A ER MATCH OF 457B CONTRIBUTIONS ‐ ‐ 891 ‐ 891 ‐ 891 PENSION (GMEBS)6,858 8,596 8,021 ‐ 8,021 1,735 6,286 TUITION REIMBURSEMENT ‐ ‐ 3,000 ‐ 3,000 993 2,007 UNEMPLOYMENT INSURANCE 110 49 50 ‐ 50 17 33 WORKER'S COMPENSATION 29 343 339 ‐ 339 171 168 FLEXIBLE SPENDING/HEALTH SAVINGS ‐ ‐ ‐ ‐ ‐ 1,500 (1,500) Total: Employee Benefits 22,912 26,832 28,607 ‐ 28,607 10,702 17,905 Purchased Professional and Technical Services PROFESSIONAL FEES 1,677 1,669 ‐ ‐ ‐ ‐ ‐ Total: Purchased Professional and Technical Services 1,677 1,669 ‐ ‐ ‐ ‐ ‐ Other Purchased Services COMMUNICATIONS 59 ‐ ‐ ‐ ‐ ‐ CELL PHONE & AIR CARD 1,229 1,104 1,185 ‐ 1,185 114 1,071 FIRE DEPT POTS LINES 11,566 10,710 12,000 ‐ 12,000 3,013 8,987 ATT ‐ CITY HALL POTS LINES/BANDWIDTH 48,880 59,112 90,000 ‐ 90,000 11,921 78,079 ATT ‐ PUBLIC SAFETY BANDWIDTH 34,027 28,014 27,600 ‐ 27,600 8,662 18,938 COMCAST‐STATION 43/BANDWIDTH 4,643 10,935 11,100 ‐ 11,100 2,247 8,853 POSTAGE 156 180 200 ‐ 200 ‐ 200 Total: Communications 100,501 110,113 142,085 ‐ 142,085 25,957 116,128 PRINTING: Business cards ‐ ‐ 50 ‐ 50 ‐ 50 TRAVEL ‐ 32 ‐ ‐ ‐ ‐ ‐ GMIS CONFERENCE ‐ 141 500 ‐ 500 33 467 Total: Travel ‐ 173 500 ‐ 500 33 467 EDUCATION & TRAINING ‐ 1,081 ‐ ‐ ‐ ‐ ‐ GMIS CONFERENCE ‐ ‐ 1,000 ‐ 1,000 ‐ 1,000 Total: Education & Training ‐ 1,081 1,000 ‐ 1,000 ‐ 1,000 CONTRACT LABOR ‐ ‐ ‐ ‐ ‐ ‐ ‐ MAINTENANCE CONTRACTS OPTIVIEW 10,930 10,225 11,000 ‐ 11,000 10,064 936 GODADDY .COM 13 86 1,000 ‐ 1,000 340 660 EXPERTS‐EXCHANGE 162 239 240 ‐ 240 40 200 ENERGOV 17,308 11,226 ‐ ‐ ‐ ‐ ‐ ARC GIS 7,675 7,700 7,832 ‐ 7,832 2,567 5,265 SHORETEL 4,895 5,104 5,615 ‐ 5,615 3,791 1,824 INCODE 21,577 24,452 23,000 ‐ 23,000 23,446 (446) MDS MAINTENANCE ‐ ‐ ‐ ‐ ‐ ‐ ‐ ALEN SIMS 1,440 1,530 1,800 ‐ 1,800 900 900 OFFSITE BACKUP 6,625 4,649 5,000 ‐ 5,000 3,874 1,126 FIREHOUSE 8,817 8,534 9,620 ‐ 9,620 8,740 880 NETMOTION 4,370 4,879 5,000 ‐ 5,000 2,334 2,666 GUARDIAN TRACKING 408 916 1,500 ‐ 1,500 508 992 OSSI 45,219 30,596 31,000 ‐ 31,000 34,691 (3,691) DIGICERT 338 113 500 ‐ 500 ‐ 500 IT IGA JOHNS CREEK 55,897 42,716 44,500 (25,900) 18,600 7,148 11,452 BARRACUDA MESSAGE MAINT.3,788 4,338 4,000 ‐ 4,000 581 3,419 L‐3 COMMUNICATIONS 11,561 4,250 15,250 ‐ 15,250 10,322 4,928 EMS TRAINING AIDS 3,726 4,018 4,200 ‐ 4,200 4,070 130 PINPOINT ‐ ‐ 3,200 ‐ 3,200 ‐ 3,200 2FA 281 439 500 ‐ 500 483 17 WORK ZONE 1,950 3,000 3,300 ‐ 3,300 1,500 1,800 VC3 ‐ 255,622 342,000 ‐ 342,000 63,081 278,919 OPEN GOV ‐ 6,500 6,500 ‐ 6,500 8,966 (2,466) ICMA ANALYTICS TOOL ‐ 9,210 9,211 ‐ 9,211 9,210 1 FY 2014 Actuals Unaudited Actuals FY 2015 FY 2016 FY 2016 Budget Amendment #1 3 of 17 Information Technology Account Name Approved Budget Requested Budget Amendment Amended Budget Actuals as of 1/26/16 Budget Remaining (after adj) FY 2014 Actuals Unaudited Actuals FY 2015 FY 2016 REC1 ‐ ‐ ‐ ‐ ‐ 500 (500) Total: Maintenance Contracts 206,980 440,342 535,768 (25,900) 509,868 197,156 312,712 Total: Other Purchased Services 307,481 551,709 679,403 (25,900) 653,503 223,146 430,357 Supplies GENERAL SUPPLIES ‐ ‐ ‐ ‐ ‐ ‐ ‐ PRINTER MAINTENANCE KITS 639 ‐ 900 ‐ 900 ‐ 900 PLOTTER INK 2,595 585 ‐ ‐ ‐ ‐ ‐ PLOTTER PAPER 472 763 900 ‐ 900 277 623 Total: General Supplies 3,705 1,348 1,800 ‐ 1,800 277 1,523 Total: Supplies 3,705 1,348 1,800 ‐ 1,800 277 1,523 Machinery & Equipment COMPUTER / SOFTWARE 5,497 2,463 ‐ ‐ ‐ 203 (203) COMPUTER / HARDWARE 87,153 38,693 40,000 ‐ 40,000 5,799 34,201 OTHER EQUIPMENT COMPUTER EQUIP&SUPPLIES 8,819 2,747 7,500 ‐ 7,500 846 6,654 DESKTOP PRINTERS 15,444 ‐ 12,000 ‐ 12,000 ‐ 12,000 CITY PHONE SYSTEM 1,446 107 1,500 ‐ 1,500 ‐ 1,500 SCANNERS ‐ ‐ 2,500 ‐ 2,500 ‐ 2,500 OTHER ‐ 551 ‐ ‐ ‐ ‐ ‐ Total: Other Equipment 25,709 3,406 23,500 ‐ 23,500 846 22,654 Total: Machinery & Equipment 118,359 44,562 63,500 ‐ 63,500 6,848 56,652 Total: Information Technology 532,035 713,472 863,103 (25,900) 837,203 263,598 573,605 BUDGET AMENDMENT NOTES Account Name Amount DECREASE 1. Maintenance Contracts/IT IGA Johns Creek (25,900) Total Decrease (25,900)$ (25,900)$ Amendment Reason GIS services have been provided through an intergovernmental agreement with Johns Creek. They have expressed a desire to end the agreement because they have found a need for this position to operate full‐time. A budget amendment in the salaries and benefits in Public Works is being requested to hire a full‐time GIS Manager TOTAL BUDGET AMENDMENTS FY 2016 Budget Amendment #1 4 of 17 Municipal Court Account Name Approved Budget Requested Budget Amendment Amended Budget Actuals as of 1/26/16 Budget Remaining (after adj) Salaries & Wages SALARIES & WAGES/REGULAR EMPLOYEES 185,485 194,127 222,564 ‐ 222,564 48,138 174,426 OVERTIME ‐ ‐ 500 ‐ 500 ‐ 500 STIPEND 4,634 4,819 4,800 ‐ 4,800 1,145 3,655 Total: Salaries & Wages 190,119 198,946 227,864 ‐ 227,864 49,282 178,582 Employee Benefits GROUP INSURANCE 17,954 20,527 22,423 ‐ 22,423 7,255 15,168 401A (SS MATCH)6,987 6,714 7,382 ‐ 7,382 1,664 5,718 FICA MEDICARE 2,653 2,507 2,855 ‐ 2,855 618 2,237 401A ER MATCH OF 457B CONTRIBUTIONS 746 443 1,120 ‐ 1,120 123 998 PENSION (GMEBS)10,329 12,331 10,079 ‐ 10,079 2,180 7,899 UNEMPLOYMENT INSURANCE 246 206 250 ‐ 250 30 220 WORKER'S COMPENSATION 697 321 748 ‐ 748 439 309 FLEXIBLE SPENDING 130 ‐ ‐ ‐ ‐ 3,900 (3,900) Total: Employee Benefits 39,743 43,048 44,857 ‐ 44,857 16,209 28,648 Purchased Professional and Technical Services PROFESSIONAL FEES TRANSLATORS 7,360 7,251 9,000 ‐ 9,000 2,385 6,615 COURT APPOINTED ATTORNEY 8,158 5,885 8,000 ‐ 8,000 1,545 6,455 SUBSTITUTE JUDGES 1,075 2,909 1,000 ‐ 1,000 1,062 (62) SUBSTITUTE SOLICITORS 600 1,200 1,000 ‐ 1,000 ‐ 1,000 Total: Professional Fees 17,193 17,245 19,000 ‐ 19,000 4,992 14,008 Total: Purchased Professional and Technical Services 17,193 17,245 19,000 ‐ 19,000 4,992 14,008 Purchased‐Property Services RENTAL LAND & BUILDINGS ‐ ‐ 36,000 (12,000) 24,000 ‐ 24,000 Total: Purchased‐Property Services ‐ ‐ 36,000 (12,000) 24,000 ‐ 24,000 Other Purchased Services COMMUNICATIONS 711 711 1,422 ‐ 1,422 178 1,244 POSTAGE 678 648 700 ‐ 700 119 581 PRINTING 963 600 800 ‐ 800 ‐ 800 TRAVEL GCCA CONFERENCE (2)1,278 1,054 1,500 ‐ 1,500 ‐ 1,500 MUNICIPAL COURT CLERK TRAINING 186 395 400 ‐ 400 294 107 GCIC TAC CONFERENCE ‐ 1,037 700 ‐ 700 ‐ 700 GRA CONFERENCE 186 ‐ ‐ ‐ ‐ ‐ ‐ JUDGES CONFERENCE ‐ ‐ 700 ‐ 700 ‐ 700 OTHER TRAVEL ‐ 1,622 ‐ ‐ ‐ ‐ ‐ Total: Travel 1,650 4,109 3,300 ‐ 3,300 294 3,007 DUES AND FEES GCCA 56 94 100 ‐ 100 ‐ 100 MUNICIPAL COURT CLERK 26 45 45 ‐ 45 45 ‐ JUDGES MUNICIPAL DUES 125 ‐ 50 ‐ 50 ‐ 50 OTHER 92 8 ‐ ‐ ‐ ‐ ‐ Total: Dues and Fees 299 147 195 ‐ 195 45 150 EDUCATION & TRAINING GCCA CONFERENCE 420 250 420 ‐ 420 ‐ 420 COURT CLERK ASSOC 150 450 225 ‐ 225 ‐ 225 JUDGES TRAINING 550 225 225 ‐ 225 ‐ 225 MSU CERTIFICATE ‐ ‐ ‐ ‐ ‐ ‐ ‐ GCIC TAC Conference ‐ 125 150 ‐ 150 ‐ 150 GRA CONFERENCE 350 ‐ ‐ ‐ ‐ ‐ ‐ Total: Education & Training 1,470 1,050 1,020 ‐ 1,020 ‐ 1,020 MAINTENANCE CONTRACTS ONLINE PYMT SYSTEM 273 330 ‐ ‐ ‐ ‐ ‐ PANIC BUTTON 340 ‐ ‐ ‐ ‐ ‐ ‐ Total: Maintenance Contracts 613 330 ‐ ‐ ‐ ‐ ‐ Total: Other Purchased Services 6,384 7,594 7,437 ‐ 7,437 635 6,802 Supplies GENERAL SUPPLIES 1,260 264 400 ‐ 400 152 248 BOOKS AND PERIODICALS ‐ ‐ 150 ‐ 150 312 (162) FY 2016 FY 2014 Actuals Unaudited Actuals FY 2015 FY 2016 Budget Amendment #1 5 of 17 Municipal Court Account Name Approved Budget Requested Budget Amendment Amended Budget Actuals as of 1/26/16 Budget Remaining (after adj) FY 2016 FY 2014 Actuals Unaudited Actuals FY 2015 Total: Supplies 1,260 264 550 ‐ 550 464 86 Machinery & Equipment FURNITURE & FIXTURES ‐ 2,670 ‐ ‐ ‐ 550 (550) Total: Machinery & Equipment ‐ 2,670 ‐ ‐ ‐ 550 (550) Total: Municipal Court 254,698 269,768 335,708 (12,000) 323,708 72,133 251,575 BUDGET AMENDMENT NOTES Account Name Amount DECREASE 1. Rental Land & Buildings (12,000) Total Decrease (12,000)$ (12,000)$ Amendment Reason Decreased to reflect anticipated costs of leasing space at Alpharetta's Court for the remainder of the year TOTAL BUDGET AMENDMENTS FY 2016 Budget Amendment #1 6 of 17 Public Works Account Name Approved Budget Requested Budget Amendment Amended Budget Actuals as of 1/26/16 Budget Remaining (after adj) Salaries & Wages SALARIES & WAGES/REGULAR EMPLOYEES 481,943 587,435 653,783 40,000 693,783 157,167 536,616 SALARIES & WAGES/OVERTIME ‐ 260 ‐ ‐ ‐ 198 (198) SALARIES & WAGES/ON‐CALL PAY ‐ 4,136 8,043 ‐ 8,043 1,829 6,214 Total: Salaries & Wages 481,943 591,831 661,826 40,000 701,826 159,195 542,631 Employee Benefits GROUP INSURANCE 58,653 88,873 102,330 6,800 109,130 34,026 75,104 401A (SS MATCH)18,287 23,150 25,765 2,500 28,265 6,287 21,978 FICA MEDICARE 6,787 8,166 9,409 581 9,990 2,186 7,804 401A ER MATCH OF 457B CONTRIBUTIONS 4,096 6,678 11,111 4,800 15,911 1,865 14,046 PENSION (GMEBS)40,051 62,662 50,506 ‐ 50,506 10,925 39,581 UNEMPLOYMENT INSURANCE 420 547 650 50 700 153 547 WORKER'S COMPENSATION 23,014 10,342 14,475 250 14,725 15,755 (1,030) FLEXIBLE SPENDING 2,400 2,400 2,400 ‐ 2,400 5,025 (2,625) Total: Employee Benefits 153,707 202,819 216,646 14,981 231,627 76,222 155,405 Purchased Professional and Technical Services PROFESSIONAL FEES 51,826 3,045 ‐ ‐ ‐ ‐ ‐ ENGINEERING & SURVEYING SERVICES 1,970 8,986 7,500 ‐ 7,500 ‐ 7,500 Total: Professional Fees 53,796 12,031 7,500 ‐ 7,500 ‐ 7,500 CONTRACTED OVERHEAD TRIMMING & GRAVEL RD ‐ ‐ 20,000 ‐ 20,000 ‐ 20,000 Total: Professional Fees/Contracted ‐ ‐ 20,000 ‐ 20,000 ‐ 20,000 EQUIPMENT REPAIR & MAINT ‐ 4,650 ‐ 4,650 ‐ 4,650 VEHICLE REPAIR & MAINT 2,958 4,583 7,848 ‐ 7,848 2,567 5,281 Total: Purchased Professional and Technical Services 56,754 16,615 39,998 ‐ 39,998 2,567 37,431 Purchased‐Property Services RENTAL EQUIPMENT & VEHICLES 688 ‐ ‐ ‐ ‐ ‐ ‐ Total: Purchased‐Property Services 688 ‐ ‐ ‐ ‐ ‐ ‐ Other Purchased Services COMMUNICATIONS 3,097 3,674 5,460 ‐ 5,460 1,249 4,211 POSTAGE 55 63 50 ‐ 50 ‐ 50 ADVERTISING 324 ‐ ‐ ‐ ‐ ‐ ‐ OTHER PURCHASED SERVICES: Guardrail Repair ‐ 9,164 7,500 ‐ 7,500 2,612 4,888 PRINTING ‐ 164 100 ‐ 100 ‐ 100 TRAVEL 1,750 1,414 250 ‐ 250 41 209 APWA CLASS ‐ 600 975 ‐ 975 ‐ 975 ITE SEMINAR ‐ ‐ 585 ‐ 585 ‐ 585 GIS CONFERENCE ‐ 1,530 1,925 1,925 3,850 ‐ 3,850 ASHE TECHNICAL SEMINAR ‐ 144 ‐ ‐ ‐ ‐ ‐ Total: Travel 1,750 3,687 3,735 1,925 5,660 41 5,619 DUES AND FEES 128 37 ‐ ‐ ‐ ‐ ‐ PE LICENSE ‐ 100 ‐ ‐ ‐ ‐ ‐ APWA 301 395 348 ‐ 348 ‐ 348 IMSA 173 228 240 ‐ 240 ‐ 240 ASHE 150 50 50 ‐ 50 ‐ 50 ITE ‐ ‐ 225 ‐ 225 ‐ 225 CFM ‐ 50 100 ‐ 100 13 88 IECA ‐ ‐ 700 ‐ 700 170 530 SFPMA ‐ ‐ 100 ‐ 100 ‐ 100 ISA ‐ ‐ 130 ‐ 130 ‐ 130 GAA ‐ ‐ 150 ‐ 150 ‐ 150 GUFC ‐ ‐ 175 ‐ 175 ‐ 175 CPESC ‐ ‐ 500 ‐ 500 125 375 CPSWQ ‐ ‐ 125 ‐ 125 ‐ 125 Total: Dues & Fees 623 859 2,843 ‐ 2,843 308 2,536 EDUCATION & TRAINING 199 ‐ ‐ ‐ ‐ ‐ ‐ APWA ‐ 825 790 ‐ 790 ‐ 790 CONTINUING EDUCATION 390 49 1,000 ‐ 1,000 ‐ 1,000 ASHE TECHNICAL SEMINAR ‐ ‐ 50 ‐ 50 ‐ 50 ITE TECHNICAL SEMINAR 155 ‐ ‐ ‐ ‐ ‐ ‐ FY 2016 FY 2014 Actuals Unaudited Actuals FY 2015 FY 2016 Budget Amendment #1 7 of 17 Public Works Account Name Approved Budget Requested Budget Amendment Amended Budget Actuals as of 1/26/16 Budget Remaining (after adj) FY 2016 FY 2014 Actuals Unaudited Actuals FY 2015 GA TRANSPORTATION SUMMIT 130 166 260 ‐ 260 250 10 GSWCC ‐ ‐ 320 ‐ 320 ‐ 320 CPESC ‐ ‐ 250 ‐ 250 ‐ 250 CESSWI ‐ ‐ 250 ‐ 250 ‐ 250 ARBORIST ‐ ‐ 360 ‐ 360 ‐ 360 Total: Education & Training 874 1,040 3,280 ‐ 3,280 250 3,030 MAINTENANCE CONTRACTS 800 MHZ FEES 553 327 ‐ ‐ ‐ 61 (61) Total: Maintenance Contracts 553 327 ‐ ‐ ‐ 61 (61) Total: Other Purchased Services 7,404 18,978 22,968 1,925 24,893 4,520 20,373 Supplies GENERAL SUPPLIES 261 119 200 ‐ 200 35 165 ARBOR DAY ‐ ‐ 2,000 ‐ 2,000 ‐ 2,000 Total: General Supplies 261 119 2,200 ‐ 2,200 35 2,165 ELECTRICITY 379,297 392,741 396,600 ‐ 396,600 100,214 296,386 GASOLINE/DIESEL 14,313 2,467 19,584 ‐ 19,584 600 18,984 FOOD/MEALS 314 359 ‐ ‐ ‐ 41 (41) UNIFORMS 1,198 1,430 3,275 ‐ 3,275 ‐ 3,275 Total: Supplies 395,384 397,116 421,659 ‐ 421,659 100,890 320,769 Infrastructure OPTECH RWM 475,336 470,501 533,913 ‐ 533,913 86,712 447,201 SIGNAL ALLOWANCE 7,240 48,789 12,285 ‐ 12,285 2,750 9,535 EMERGENCY SERVICES ALLOWANCE 58,591 9,305 10,000 ‐ 10,000 ‐ 10,000 MATERIALS ALLOWANCE 20,212 16,413 37,500 ‐ 37,500 6,801 30,699 TREE REMOVAL 8,355 9,305 6,000 ‐ 6,000 7,300 (1,300) DUMPSTER FEES 11,171 2,985 9,000 ‐ 9,000 945 8,055 SIGNAL MATERIALS 21,001 40,510 25,000 ‐ 25,000 284 24,716 SIGN MATERIALS 24,000 13,236 25,000 ‐ 25,000 2,106 22,894 ADDITIONAL ROW MOWING 16,740 16,740 ‐ ‐ ‐ ‐ ‐ Total: Infrastructure 642,645 627,784 658,698 ‐ 658,698 106,898 551,800 Machinery & Equipment OTHER EQUIPMENT 221 6,295 ‐ ‐ ‐ ‐ ‐ ADOPT‐A‐ROAD SIGNS ‐ ‐ 100 ‐ 100 ‐ 100 TOOLS/BATTERIES/CHEMICALS 3,362 5,301 7,500 ‐ 7,500 798 6,702 CELL PHONES ‐ 70 300 ‐ 300 ‐ 300 Total: Other Equipment 3,583 11,666 7,900 ‐ 7,900 798 7,102 Total: Machinery & Equipment 3,583 11,666 7,900 ‐ 7,900 798 7,102 Total: Public Works 1,742,108 1,866,809 2,029,695 56,906 2,086,601 451,089 1,635,512 BUDGET AMENDMENT NOTES Account Name Amount INCREASE 1. Salaries and Benefits 54,981 2. Travel/GIS Conference 1,925 Total Increase 56,906$ 56,906$ Amendment Reason GIS services have been provided through an intergovernmental agreement with Johns Creek. They have expressed a desire to end the agreement because they have found a need for this position to operate full‐time. An increase to salaries and benefits is being requested to bring a GIS Manager on staff. TOTAL BUDGET AMENDMENTS Increased to cover the cost of GIS Manager to FY 2016 Budget Amendment #1 8 of 17 Other Financing Uses Account Name Approved Budget Requested Budget Amendment Amended Budget Actuals as of 1/26/16 Budget Remaining (after adj) Operating Transfers Out TO CAPITAL PROJECTS FUND 4,982,793 4,419,133 8,327,979 10,435,171 18,763,150 4,163,990 14,599,161 TO CAPITAL GRANT FUND ‐ 600,180 1,411,202 (500,000) 911,202 705,601 205,601 TO CAPITAL PROJECTS FUND‐REVENUE BOND 3,330,651 6,258,569 2,825,653 (9,935,171) (7,109,518) 1,412,826 (8,522,344) TO OPERATING GRANT FUND ‐ ‐ ‐ ‐ ‐ ‐ ‐ Total: Operating Transfers Out 8,313,444 11,277,882 12,564,834 ‐ 12,564,834 6,282,417 6,282,417 Total: Other Financing Uses 8,313,444 11,277,882 12,564,834 ‐ 12,564,834 6,282,417 6,282,417 BUDGET AMENDMENT NOTES Account Name Amount INCREASE 1. Operating Transfers to Capital Projects Fund 10,435,171 Total Increase 10,435,171$ DECREASE 1. Operating Transfers to Capital Grant Fund (500,000) 2. Operating Transfers to Capital Project‐Revenue Bond Fund (9,935,171) Total Decrease (10,435,171)$ ‐$ TOTAL BUDGET AMENDMENTS Since the City Hall construction project is being fully funded by cash on hand and not a revenue bond, we are moving the project into the Capital Projects Fund. Amendment Reason Please see the explanations below GDOT is covering a greater portion of the costs of the Crabapple @ Birmingham intersection project than anticipated. We are transferring our portion of the funding that is no longer required to the Capital Projects Fund to cover other projects. FY 2016 FY 2014 Actuals Unaudited Actuals FY 2015 FY 2016 Budget Amendment #1 9 of 17 E-911 FUND This fund accounts for revenues and expenditures related to the operation of the E-911 center as performed through an intergovernmental agreement with the City of Alpharetta. E-911 Fund Revenues Account Name Approved Budget Requested Budget Amendment Amended Budget Actuals as of 1/26/16 Budget Remaining (after adj) E-911 CHARGES 888,153 912,707 890,000 - 890,000 73,271 816,729 INTEREST REVENUE 370 283 - - - 33 (33) Total Revenue 888,524 912,990 890,000 - 890,000 73,304 816,696 Expenditures Account Name Approved Budget Requested Budget Amendment Amended Budget Actuals as of 1/26/16 Budget Remaining (after adj) COMMUNICATIONS 15,676 16,835 19,080 - 19,080 4,766 14,314 MAINTENANCE CONTRACTS 1,162,371 912,707 890,000 - 890,000 73,271 816,729 TO CAPITAL PROJECTS FUND - 400,000 300,000 (256,374) 43,626 - 43,626 Total Expenditures 1,178,047 1,329,542 1,209,080 (256,374) 952,706 78,038 874,668 TOTAL REVENUES OVER/(UNDER) EXPENDITURES (289,523) (416,552) (319,080) 256,374 (62,706) (4,734) (57,972) BEGINNING FUND BALANCE 768,794 479,271 62,719 62,719 62,719 62,719 62,719 ENDING FUND BALANCE 479,271 62,719 (256,361) 319,093 13 57,986 4,747 BUDGET AMENDMENT NOTES Account Name Amount EXPENDITURES 1. Operating Transfers to Capital Projects Fund (256,374) Total Expenditures (256,374)$ 256,374$ Amendment Reason While putting the spreadsheets together for the FY 16 Budget, the Beginning Fund Balance calculation pulled from the wrong Ending Fund Balance, thus depicting a higher fund balance than we actually had. Because of this error, we do not have all of the funds available to transfer over to the Capital Projects Fund. This was to cover the cost of the North Fulton Radio system funding requirements for FY 16. TOTAL BUDGET AMENDMENTS FY 2014 Actuals FY 2014 Actuals Unaudited Actuals FY 2015 Unaudited Actuals FY 2015 FY 2016 FY 2016 FY 2016 Budget Amendment #1 10 of 17 CAPITAL PROJECTS FUND The Capital Projects Fund is used to track revenues and expenditures associated with capital construction, acquisition and maintenance. Appropriations in Capital Projects Fund are on a project- length basis and do not expire until the project is complete. According to the City’s budgetary policies, a major capital project generally is defined as an expenditure that has an expected useful life of more than 3 years with an estimated total cost of $50,000 or more, or an improvement/addition to an existing capital asset. (Refer to the following pages.) FY 2016 Budget Amendment #1 11 of 17 Capital Projects Fund Revenues Account Name Approved Budget Requested Budget Amendment Amended Budget Actuals as of 1/26/16 Budget Remaining (after adj) INFRASTRUCTURE MAINTENANCE FEES 96,249 95,529 90,000 - 90,000 - 90,000 PENALTIES & INTEREST/OTHER - 844 - - - - - SIDEWALK REPLACEMENT 19,800 82,429 - - - - - CRABAPPLE PAVING FUND 5,250 - - - - - - TRAFFIC CALMING - 1,329 - - - - - TREE RECOMPENSE 75,000 147,000 - - - - - LANDFILL USE FEES 119,338 152,410 120,000 - 120,000 - 120,000 HYA FEES 7,808 - - - - - - INTEREST REVENUE 1,923 409 500 - 500 76 424 DONATION/PARKS & RECREATION - 100,000 - - - - - INSURANCE PROCEEDS - 10,225 - - - - - INSURANCE PROCEEDS/PARKS & REC - - - - - 14,399 (14,399) OTHER MISCELLANEOUS REVENUE - 4,921 - - - - - OPERATING TRANSFERS IN FROM GENERAL FUND 4,982,793 4,419,133 8,327,979 10,435,171 18,763,150 4,163,990 14,599,161 OPERATING TRANSFERS IN FROM E-911 FUND - 400,000 300,000 (256,374) 43,626 - 43,626 PROCEEDS OF SALE OF ASSETS 300 - - - - - - Total Revenue 5,308,461 5,414,229 8,838,479 10,178,797 19,017,276 4,178,464 14,838,812 Expenditures Account Name Approved Budget Requested Budget Amendment Amended Budget Actuals as of 1/26/16 Budget Remaining (after adj) Mayor & Council LAND CONSERVATION - 375,158 510,069 - 510,069 - 510,069 BUILDINGS/FUTURE CITY FACILITIES 26,982 - - - - - - GREEN SPACE BOND INITIATIVE - - 200,000 - 200,000 - 200,000 Mayor & Council Total 26,982 375,158 710,069 - 710,069 - 710,069 General Admin VEHICLES / REPLACEMENT RESERVE - 19,414 13,762 - 13,762 - 13,762 General Admin Total - 19,414 13,762 - 13,762 - 13,762 Finance COMPUTER / SOFTWARE - 15,654 - - - - - Finance Total - 15,654 - - - - - General Government Buildings CITY HALL - - - 9,935,171 9,935,171 110,176 9,824,995 General Government Buildings Total - - - 9,935,171 9,935,171 110,176 9,824,995 Municipal Court FACILITY RENOVATIONS - - 100,000 (45,000) 55,000 - 55,000 Municipal Court Total - - 100,000 (45,000) 55,000 - 55,000 Police PUBLIC SAFETY COMMUNICATIONS 312,585 1,654,794 888,089 - 888,089 - 888,089 VEHICLES / REPLACEMENT RESERVE 402,423 242,020 161,529 - 161,529 - 161,529 AUTOMATED LICENSE PLATE READERS 39,917 - - - - - - POLICE FACILITY - - 30,000 - 30,000 - 30,000 Police Total 754,925 1,896,814 1,079,618 - 1,079,618 - 1,079,618 FY 2014 Actuals FY 2014 Actuals FY 2016 FY 2016 Unaudited Actuals FY 2015 Unaudited Actuals FY 2015 FY 2016 Budget Amendment #1 12 of 17 Capital Projects Fund Expenditures Account Name Approved Budget Requested Budget Amendment Amended Budget Actuals as of 1/26/16 Budget Remaining (after adj) Fire STATION REPAIR/ROOF REPLACEMENT STATION 42 - - 10,000 - 10,000 - 10,000 STATION 43 PARKING LOT REPAIR 330 - 113,644 - 113,644 73,629 40,015 STATION 42 REPLACEMENT - 6,000 151,000 - 151,000 - 151,000 STATION 41 GENERATOR REPLACEMENT - 38,189 8,811 - 8,811 - 8,811 FUEL MANAGEMENT SYSTEM - 29,822 10,678 - 10,678 - 10,678 VEHICLE REPLACEMENT RESERVE 194,386 104,368 1,670,087 - 1,670,087 51,952 1,618,135 AED UNITS - 27,435 18,783 - 18,783 - 18,783 MASS NOTIFICATION SIRENS 212,755 8,925 78,320 - 78,320 2,915 75,405 FIRE SAFETY HOUSE 15,181 - - - - - - LIVE FIRE TRAINING FACILITY - 12,075 487,925 - 487,925 2,150 485,775 Fire Total 422,652 236,539 2,549,248 - 2,549,248 130,646 2,418,602 Public Works CONSTRUCTION INSPECTORS 21,224 - 78,688 - 78,688 - 78,688 TRANSPORTATION MASTER PLAN UPDATE - 47,064 177,936 - 177,936 18,360 159,576 GRAVEL ROADS MAINTENANCE 86,690 70,457 131,927 - 131,927 12,802 119,125 STORMWATER MAINTENANCE 328,889 262,828 323,183 - 323,183 22,477 300,706 NPDES PERMIT COMPLIANCE 5,630 1,109 357,741 - 357,741 350 357,391 PAVEMENT MANAGEMENT 3,112,726 1,178,706 2,558,337 - 2,558,337 457,424 2,100,913 STORAGE BUILDING & YARD CONSTRUCTION 700 - 205,477 - 205,477 - 205,477 INFRASTRUCTURE / TRAFFIC CALMING - 2,659 36,904 64,000 100,904 - 100,904 INFRASTRUCTURE / RESTRIPING 5,267 - 181,952 - 181,952 69,071 112,881 CAMBRIDGE SCHOOL ZONE EQUIP - - - - - - - REPLACE SCHOOL ZONE FLASHERS - 53,820 48,654 - 48,654 - 48,654 INFRASTRUCTURE / BRIDGE REPLACEMENT 3,034 76,655 661,483 - 661,483 10,196 651,287 INFRASTRUCTURE / SIDEWALKS 10,755 22,089 1,429,652 - 1,429,652 - 1,429,652 BETHANY@COGBURN RD INTERSECTION IMPROVMTS 56 - - - - - - HOPEWELL/FRANCIS/COGBURN INTERSECTION 816,922 5,804 13,148 - 13,148 - 13,148 HOPEWELL @ BIRMINGHAM INTERSECTION IMPROVMTS 70,646 254,259 1,091,181 - 1,091,181 109,748 981,433 INTERSECTION/HOPEWELL @ BETHANY BND/BETHANY WAY - - 252,083 - 252,083 - 252,083 INTERSECTION/FREEMANVILLE @ PROVIDENCE & B'HAM 46,585 2,663 660,752 - 660,752 - 660,752 MCGINNIS FERRY INTERCHANGE - - 50,000 - 50,000 - 50,000 INFRASTRUCTURE/CRABAPPLE NE CONNECTOR - - 50,000 - 50,000 - 50,000 INTERSECTION/WEBB RD TURN LANES - 7,000 178,000 - 178,000 - 178,000 GREEN RD PEDESTRIAN LIGHTING - 75,149 - - - - - VEHICLES / NEW VEHICLES - 66,176 44,227 - 44,227 4,189 40,038 ASSET MANAGEMENT SOFTWARE - - 60,000 - 60,000 - 60,000 OTHER EQUIPMENT - 11,000 15,500 - 15,500 13,858 1,642 MOBILE TRAFFIC CONTROL CENTER - - 9,625 - 9,625 - 9,625 NORTH FULTON TRANSPORTATION PLAN - - 35,000 - 35,000 24,000 11,000 Public Works Total 4,509,123 2,137,438 8,651,450 64,000 8,715,450 742,475 7,972,975 FY 2014 Actuals FY 2016 Unaudited Actuals FY 2015 FY 2016 Budget Amendment #1 13 of 17 Capital Projects Fund Expenditures Account Name Approved Budget Requested Budget Amendment Amended Budget Actuals as of 1/26/16 Budget Remaining (after adj) Parks & Recreation PROF FEES/SIGN PROGRAM 7,600 - - - - - - PROF FEES/STRUCTURE DEMOLITION - - 27,600 - 27,600 - 27,600 NORTHWESTERN MIDDLE IGA IMPROVEMENTS - 186,462 10,000 - 10,000 - 10,000 PROVIDENCE PARK - 24,445 263,610 - 263,610 - 263,610 BYRD HOUSE RENOVATIONS 277,390 438,859 - - - 640 (640) BROADWELL PARK PAVILION 273 531,350 - - - - - PARK & TRAIL EXPANSION 380,067 34,809 2,000,000 - 2,000,000 - 2,000,000 NEW VEHICLES - 26,921 - - - - - Parks & Recreation Total 665,329 1,242,846 2,318,210 - 2,318,210 12,780 2,305,430 Community Development FORM BASED CODE/TDR ORDINANCE 265 29,220 - - - - - GATEWAY SIGNAGE & HISTORIC MARKERS 7,460 4,175 86,690 - 86,690 - 86,690 DOWNTOWN MILTON MASTER PLAN - - - 80,000 80,000 - 80,000 SITE IMPROVEMENT/TREE RECOMPENSE 850 94,838 160,517 - 160,517 - 160,517 Community Development Total 8,575 128,233 247,207 80,000 327,207 - 327,207 Total Expenditures 6,387,586 6,052,096 15,669,564 10,034,171 25,703,735 996,078 24,707,657 TOTAL REVENUES OVER/(UNDER) EXPENDITURES (1,079,125) (637,867) (6,831,085) 144,626 (6,686,459) 3,182,386 (9,868,845) BEGINNING FUND BALANCE 8,960,703 7,881,578 7,243,711 7,243,711 7,243,711 7,243,711 7,243,711 ENDING FUND BALANCE 7,881,578 7,243,711 412,626 7,388,337 557,252 10,426,097 (2,625,134) FY 2014 Actuals Unaudited Actuals FY 2015 FY 2016 FY 2016 Budget Amendment #1 14 of 17 Capital Projects Fund BUDGET AMENDMENT NOTES Account Name REVENUES 1. Operating Transfer in from General Fund 10,435,171 2. Operating Transfer in from E-911 Fund (256,374) 10,178,797$ EXPENDITURES 1. General Gov't Buildings/City Hall 9,935,171 2. Municipal Court/Facility Renovations (45,000) 3. Public Works/Traffic Calming 64,000 4. Community Development/Downtown Milton Master Plan 80,000 10,034,171$ 10,034,171$ TOTAL BUDGET AMENDMENTS Increasing this line item to put in traffic calming measures in the Crabapple area Decreasing this line item to reflect the current projected costs of renovating the facility Transferring the City Hall construction project from the Revenue Bond Fund since it is being funded by cash on hand Funding for this project is being requested from ARC. Since this is a priority project of the council, a budget amendment is being requested in the event the ARC does not approve funding. Amendment Reason Decreasing the funds being transferred in from E- 911 Fund due to formula error in budget spreadsheet that mistakenly showed a higher fund balance than we actually had. This is now being covered by a reallocation of the funds from the Crabapple @ Birmingham intersection project. Transferring City Hall construction project from Revenue Bond Fund ($9,935,171) and moving funds out of the Crabapple @ Birmingham intersection project that is being covered by GDOT ($500,000) FY 2016 Budget Amendment #1 15 of 17 CAPITAL GRANT FUND The Capital Grant Fund is considered to be a capital project fund that accounts for capital grants used to finance major capital projects. Revenues Account Name Approved Budget Requested Budget Amendment Amended Budget Actuals as of 1/26/16 Budget Remaining (after adj) FED GOV GRANT/CAPITAL/IND/GDOT CRABAPPLE STREETSCAPE - - 500,000 - 500,000 - 500,000 FED GOV GRANT/CAPITAL/IND/GDOT TAP (BIG CREEK)11,377 41,891 146,732 - 146,732 - 146,732 FED GOV GRANT/CDBG - - 20,500 - 20,500 16,850 3,650 STATE GOV GRANT/LMIG FUNDS 275,873 278,684 200,000 - 200,000 - 200,000 STATE GOV GRANT/GDOT HPP FUNDS 60,362 614,695 5,930,730 - 5,930,730 - 5,930,730 STATE GOV GRANT/MARTA GRANT - 102,705 74,650 - 74,650 - 74,650 STATE GOV GRANT/SR 9 @ BETHANY BND 42,274 16,854 872 - 872 - 872 STATE GOV GRANT/GDOT LANDSCAPE - - 4,062 - 4,062 - 4,062 LOCL GOV GRANT/ALPHARETTA & NORTH FULTON CID 15,000 15,000 - - - - - INTEREST REVENUE 319 82 - - - 5 (5) OPERATING TRANSFER IN FROM GENERAL FUND - 600,180 1,411,202 (500,000) 911,202 705,601 205,601 Total Revenue 405,206 1,670,091 8,288,748 (500,000) 7,788,748 722,456 7,066,292 Expenditures Account Name Approved Budget Requested Budget Amendment Amended Budget Actuals as of 1/26/16 Budget Remaining (after adj) Public Works PAVEMENT MANAGEMENT 275,873 278,684 200,000 - 200,000 - 200,000 INFRASTRUCTURE / BHAM @ PROVIDENCE 113,068 1,835 - - - - - INFRASTRUCTURE/CRABAPPLE @ B'HAM 203,287 3,353,225 5,175,792 (500,000) 4,675,792 421,839 4,253,953 INFRASTRUCTURE/SIDEWALKS - 16,200 8,500 - 8,500 9,990 (1,490) INFRASTRUCTURE/MARTA 95,788 480 71,438 - 71,438 - 71,438 INFRASTRUCTURE/CRABAPPLE STREETSCAPE 79,318 30,750 643,432 - 643,432 - 643,432 INFRASTRUCTURE/DEERFIELD@MORRIS 150,919 - - - - - - INFRASTRUCTURE/SR 9@BETHANY BEND 73,134 777 51,091 - 51,091 - 51,091 INFRASTRUCTURE/TRAIL CONN TO BIG CREEK GREENWAY 66,585 121,143 62,272 - 62,272 12,590 49,682 Public Works Total 1,057,971 3,803,092 6,212,525 (500,000) 5,712,525 444,419 5,268,106 Community Development BRANDING & SIGNAGE 2,290 - 4,900 - 4,900 - 4,900 Community Development Total 2,290 - 4,900 - 4,900 - 4,900 Expenditures Total 1,060,261 3,803,092 6,217,425 (500,000) 5,717,425 444,419 5,273,006 TOTAL REVENUES OVER/(UNDER) EXPENDITURES (655,055) (2,133,001) 2,071,323 - 2,071,323 278,037 1,793,286 BUDGET AMENDMENT NOTES Account Name REVENUES 1. Operating Transfer in from General Fund (500,000) (500,000)$ EXPENDITURES 2. Public Works/Infrastructure/Crabapple @ B'ham (500,000) (500,000)$ (500,000)$ TOTAL BUDGET AMENDMENTS Please see note above Amendment Reason GDOT is covering a greater portion of the costs of the Crabapple @ Birmingham intersection project than anticipated. We are transferring our portion of the funding that is no longer required to the Capital Projects Fund to cover other projects. Unaudited Actuals FY 2015 FY 2016 Unaudited Actuals FY 2015 FY 2016 FY 2014 Actuals FY 2014 Actuals FY 2016 Budget Amendment #1 16 of 17 CAPITAL PROJECTS – REVENUE BOND FUND The Capital Projects – Revenue Gond Fund is considered to be a capital project fund that accounts for the revenue bonds used to finance major capital projects. Capital Project Fund - Revenue Bond Revenues Account Name Approved Budget Requested Budget Amendment Amended Budget Actuals as of 1/26/16 Budget Remaining (after adj) INTEREST REVENUE - 247 - - - 474 (474) DONATION/HOPEWELL YOUTH ASSOCIATION - 100,000 - - - - - OPERATING TRANSFER IN FROM GENERAL FUND 3,330,651 6,258,569 2,825,653 (9,935,171) (7,109,518) 1,412,826 (8,522,344) REVENUE BOND PROCEEDS - 8,910,132 689,868 - 689,868 689,868 0 Total Revenue 3,330,651 15,268,948 3,515,521 (9,935,171) (6,419,650) 2,103,169 (8,522,819) Expenditures Account Name Approved Budget Requested Budget Amendment Amended Budget Actuals as of 1/26/16 Budget Remaining (after adj) General Government Buildings CITY HALL 945,650 270,980 9,935,171 (9,935,171) - - - General Government Buildings Total 945,650 270,980 9,935,171 (9,935,171) - - - Parks & Recreation BELL MEMORIAL PARK 965,012 8,308,284 822,974 - 822,974 478,054 344,920 Parks & Recreation Buildings Total 965,012 8,308,284 822,974 - 822,974 478,054 344,920 Debt Service BOND PRINCIPAL - - 589,878 - 589,878 - 589,878 BOND INTEREST - 669 276,256 - 276,256 30,486 245,770 Debt Service Total - 669 866,134 - 866,134 30,486 835,648 Expenditures Total 1,910,662 8,579,933 11,624,279 (9,935,171) 1,689,108 508,540 1,180,568 TOTAL REVENUES OVER/(UNDER) EXPENDITURES 1,419,989 6,689,016 (8,108,758) - (8,108,758) 1,594,628 (9,703,386) BEGINNING FUND BALANCE - 1,419,989 8,109,005 8,109,005 8,109,005 8,109,005 8,109,005 ENDING FUND BALANCE 1,419,989 8,109,005 247 8,109,005 247 9,703,634 (1,594,381) BUDGET AMENDMENT NOTES Account Name Amount REVENUES 1. Operating Transfers in from General Fund (9,935,171) Total Revenues (9,935,171)$ EXPENDITURES 1. Operating Transfers to Capital Projects Fund (9,935,171) Total Expenditures (9,935,171)$ (9,935,171)$ TOTAL BUDGET AMENDMENTS Amendment Reason Please see explanation above Since the City Hall construction project is being fully funded by cash on hand and not a revenue bond, we are moving the project into the Capital Projects Fund. FY 2016 FY 2014 Actuals Unaudited Actuals FY 2015 FY 2014 Actuals Unaudited Actuals FY 2015 FY 2016 FY 2016 Budget Amendment #1 17 of 17 ORDINANCE NO. STATE OF GEORGIA FULTON COUNTY AN ORDINANCE OF THE MAYOR AND COUNCIL OF THE CITY OF MILTON, GEORGIA, TO ADOPT AMENDMENTS TO THE FISCAL 2016 BUDGET FOR EACH FUND OF THE CITY OF MILTON, GEORGIA AMENDING THE AMOUNTS SHOWN IN EACH BUDGET AS EXPENDITURES, AMENDING THE SEVERAL ITEMS OF REVENUE ANTICIPATIONS, PROHIBITING EXPENDITURES TO EXCEED APPROPRIATIONS, AND PROHIBITING EXPENDITURES TO EXCEED ACTUAL FUNDING AVAILABLE. BE IT ORDAINED by the City Council of the City of Milton, GA while in a council meeting on February 17, 2016 at 6:00 p.m. as follows: WHEREAS, the City Manager of the City of Milton has presented amendments to the fiscal year 2016 Budget to the City Council on each of the various funds of the City; and WHEREAS, each of these budget amendments results in a balanced budget, so that anticipated revenues equal proposed expenditures for each fund; and WHEREAS, the amended fiscal year 2016 budget provides a financial plan for the government, establishing appropriations for each operating department in order to extend services; NOW, THEREFORE BE IT ORDAINED that this budget amendment, “Exhibit A” attached hereto and by this reference made a part hereof this ordinance shall be the City of Milton’s amended fiscal year 2016 budget; and BE IT FURTHER ORDAINED that this budget be and is hereby approved and the several items of revenues shown in the budget for each fund in the amounts anticipated are adopted and that the several amounts shown in the budget for each fund as proposed expenditures are hereby appropriated to the departments named in each fund; and, BE IT FURTHER ORDAINED that the expenditures shall not exceed the appropriations authorized by this budget or amendments thereto provided; that expenditures for the fiscal year shall not exceed actual funding available. ADOPTED AND APPROVED this 17th day of February, 2016. CITY OF MILTON, GEORGIA By: ________________________ Mayor Joe Lockwood _________________________ ________________________ Councilmember Karen Thurman Councilmember Burt Hewitt _________________________ ________________________ Councilmember Matt Kunz Councilmember Joe Longoria _________________________ ________________________ Councilmember Bill Lusk Councilmember Rick Mohrig (SEAL) Attest: _______________________________ City Clerk ra HOME OF ' 1 ESTABLISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: January 26, 2016 FROM: City Manager AGENDA ITEM: Consideration of the Issuance of an Alcohol Beverage License to Moctezuma Mexican Grill Located at 13020 Morris Road, Suite A, Milton, Georgia 30004. The Applicant is Jose Guitron for Wine, Malt Beverages, and Distilled Spirits. MEETING DATE: Monday, February 1, 2016 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: APPROVED CITY ATTORNEY APPROVAL REQUIRED: () YES CITY ATTORNEY REVIEW REQUIRED: () YES APPROVAL BY CITY ATTORNEY () APPROVED PLACED ON AGENDA FOR: 0 Z VI 1 b REMARKS () NOT APPROVED y NO (�,NO () NOT APPROVED ®10 You .•_ ,r * ,r PHONE: 678.242.25001 FAX: 678.242.2499 Green 01' * CCr'ryfia * ToP;oo info@cityofmiltonga.us I www.cityofmiltonga.us WI Community �%J,hics f 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 ""'"" "'' pk To: Honorable Mayor and City Council Members From: Stacey Inglis, Assistant City Manager Date: Submitted on January 11, 2016 for the February 1, 2016 Regular Council Meeting Agenda Item: Consideration of the Issuance of an Alcohol Beverage License to Moctezuma Mexican Grill, Located at 13020 Morris Rd. Suite A, Milton, Georgia 30004. ____________________________________________________________________________ Department Recommendation: Approve the issuance of an alcohol beverage license to Moctezuma Mexican Grill for consumption on premises of wine, malt beverages, and distilled spirits. Executive Summary: City of Milton Code of Ordinance Chapter 4 allows for the issuance of alcohol beverage licenses to businesses that properly submit application for and meet all of the legal requirements to hold such license. This application was submitted due to opening a new establishment. Staff has processed the application and recommends issuance of the applicable license for: Business Name: Moctezuma Mexican Grill Contact Name: Jose Guitron Business Address: 13020 Morris Rd. Ste. A, Milton, GA 30004 Type of License: Consumption on Premises - Wine, Malt Beverages, and Distilled Spirits Funding and Fiscal Impact: There is a positive fiscal impact of license fees and/or monthly excise taxes. Alternatives: None. Legal Review: Not required. Concurrent Review: Chris Lagerbloom, City Manager Steven Krokoff, Chief of Police Kathleen Field, Director of Community Development Attachment(s): None. mm HOME OF ' ESTABLISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: January 21, 2016 FROM: City Manager AGENDA ITEM: Consideration of a Grant Application to the Department of Homeland Security for the Assistance to Firefighters Grant Program Sponsored by FEMA. MEETING DATE: Monday, February 1, 2016 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: 0 APPROVED CITY ATTORNEY APPROVAL REQUIRED: () YES CITY ATTORNEY REVIEW REQUIRED: () YES APPROVAL BY CITY ATTORNEY () APPROVED PLACED ON AGENDA FOR: t) Z 0 1 1 G REMARKS () NOT APPROVED 9j NO YNO (J NOT APPROVED PHONE: 678.242.25001 FAX: 678.242.2499 infoCgcityofmiltonga.us I www.cityofmiltonga.us Community 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 To: Honorable Mayor and City Council Members From: Matt Marietta, Fire Marshal / Emergency Manager Date: Submitted on January 13, 2016 for the February 1, 2016 Regular Council Meeting Agenda Item: Consideration of a Grant Application to the Department of Homeland Security for the Assistance to Firefighters Grant Program Sponsored by FEMA ____________________________________________________________________________ Department Recommendation: Adopt the attached resolution approving the submission to the Department of Homeland Security’s “Assistance to Firefighters” grant program. This resolution authorizes the request for funding for a replacement vehicle for the Technical Rescue / Service Truck operating out of Station 43 and for a microgrant to purchase a hose-roller for the 5-inch supply line carried by all apparatus. Executive Summary: The purpose of the “Assistance to Firefighters Grant” (AFG) is to award grants directly to fire departments to enhance their abilities to equip field personnel in the performance of their general duties. This project includes two different submissions to the AFG program: an equipment grant and a vehicle grant. The equipment grant is designed to support suppression units by purchasing a hose roller for the large-diameter (5 inch) hose that we carry. Milton firefighters carry a comparatively large amount of this type of hose due to the distribution of hydrants and long driveways we regularly confront. This hose provides water supply to engines when the fire is a significant distance away from the closest hydrant. It is also heavy and cumbersome and difficult for already exhausted firefighters to pick up after a fire. This “microgrant” (FEMA’s term for an item costing less than $25,000) will purchase two of these items (one for an engine, and one to put with the new training center which doesn’t have a hydrant at it). The vehicle request is to replace the technical rescue vehicle at 43 with a more flexible multi-purpose vehicle that was designed for firefighting use. Currently the vehicle we use is a donated truck that has been converted and is not properly configured for our needs. The intended grant vehicle would address several concerns based in our development trends and department’s strategic needs analysis. This would include not only the medium -duty technical rescue aspects of the current vehicle, but also functioning as a service vehicle for the territory covered by Station 43. It will also be used as a response vehicle during severe weather incidents and in support of the department’s TLAER unit. Based on development and operational experience, the area requires a ladder and additional equipment in the event of a fire or technical emergency. Thus the requested item would be designed to not only replace the 10 year old, high- mileage, repurposed technical rescue vehicle, but will fill the ladder-equipment gap in northwest area of the City. Funding and Fiscal Impact: The vehicle budget is $390,000 (of which the City would have a 10% match). Ongoing maintenance should be reduced by this project as it will be replacing an old, high-mileage vehicle that was not intended for firefighting purposes. It will also increase operational efficiency, especially in the northwest and western portions of the City. The hose roller budget is $10,000 (of which the City would have a 10% match). This should have a minimal ongoing fiscal impact. Alternatives: The City may opt to continue with the level of service it currently provides and fill the needs out of its own capital project fund. Legal Review: N/A Concurrent Review: Chris Lagerbloom, City Manager Bob Edgar, Fire Chief Attachment(s): Resolution STATE OF GEORGIA RESOLUTION NO. COUNTY OF FULTON A RESOLUTION OF THE MAYOR AND CITY COUNCIL TO APPROVE THE SUBMISSION OF A GRANT APPLICATION TO THE DEPARTMENT OF HOMELAND SECURITY FOR THE ASSISTANCE TO FIREFIGHTERS GRANT PROGRAM WHEREAS, the Department of Homeland Security makes available funding under the Assistance to Firefighters Grant (AFG) program; and WHEREAS, such funds are awarded directly to fire departments to enhance their ability to protect first responders and the public by funding support materials and equipment; and WHEREAS, the primary goal of the AFG grant program is to assist local fire departments’ capabilities by providing essential equipment to respond to emergencies, assuring that departments have adequate protection from fire and fire related hazards; and WHEREAS, the funding, if awarded, shall be used to purchase a rescue-service vehicle fire apparatus and two hose rollers to support Milton Fire Department fire suppression operations throughout the City; and WHEREAS, evidence authorizing the acceptance of said application may be provided to assist in the application process. NOW, THEREFORE BE IT SO RESOLVED, this 1st day of February, 2016 by the Mayor and Council of the City of Milton that the submission of the Department of Homeland Security’s Assistance to Firefighters Grant application is hereby approved; and if awarded the Mayor is hereby authorized to execute the award package with directives under the Department of Homeland Security. Approved: _______________________ Joe Lockwood, Mayor Attest: __________________________ Sudie AM Gordon, City Clerk HOME OF ' I s ESTABLISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: January 28, 2016 FROM: City Manager AGENDA ITEM: Consideration to Hold a Conservation Easement for a Sending Site Property in the City's TDR Program Located at 13235 Arnold Mill Road. MEETING DATE: Monday, February 1, 2016 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: APPROVED () NOT APPROVED CITY ATTORNEY APPROVAL REQUIRED: OYES () NO CITY ATTORNEY REVIEW REQUIRED: OYES () NO APPROVAL BY CITY ATTORNEY k APPROVED () NOT APPROVED PLACED ON AGENDA FOR: 07-0106 REMARKS 4 ® Your PHONE: 678.242.25001 FAX: 678.242.2499 , Greed .' 0 *rrr��f�ea* 74100 �1'ILDLIFF Communit rtY info@cityofmiltonga.us I www.cityofmiltonga.us i��Eth Bc`L�f 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 ""''"' To: Honorable Mayor and City Council Members From: Michele McIntosh-Ross, Principal Planner Date: Submitted on January 28, 2016 for the February 1, 2016 Regular Council Meeting Agenda Item: Consideration to Hold a Conservation Easement, for a Sending Site Property in the City’s TDR Program, Located at 13235 Arnold Mill Road ____________________________________________________________________________ Department Recommendation: Approval Executive Summary: Pursuant to the city’s TDR program, an application was submitted to the city to request consideration to qualify the property at 13235 Arnold Mill Road as a TDR sending site and to place a conservation easement on the property. The applicant has also reserved the right to build a house, a pool and accessary buildings as allowed per the AG-1 zoning and the TDR program. After staff reviewed the application documents and visited the site, it w as determined that the site met the criteria to be a TDR sending site. The 11.61 acre site is zoned AG-1 and is located along Arnold Mill Road on the east side and north of Ranchette Road. It has a combination of pasture and forests, including hardwoods and specimen trees, which contribute to Milton’s Rural Viewshed along Arnold Mill Road. The property has a lake and streams with 75 foot riparian buffers. There is a 100 foot Georgia Power easement that runs northeast to southwest along the north of the property. This property will contribute 11.61 acres of conservation land to the city of Milton. The property yields 7.25 TDR credits. Funding and Fiscal Impact: Page 2 of 2 None. Alternatives: None. Legal Review: Jarrard & Davis, LLP. Paul Frickey (01-27-2016) Concurrent Review: Chris Lagerbloom, City Manager Attachment(s): Conservation Easement TDR Application Exhibits 1 When recorded return to: ________________________________ ________________________________ ________________________________ CONSERVATION EASEMENT THIS DEED OF CONSERVATION EASEMENT ("Easement") is made by __Robert A. Brannon___ having an address at _13235 Arnold Mill Road, Milton GA 30075___ ("Grantor"), in favor of City of Milton, Georgia, a political subdivision of Georgia ("Grantee") (collectively, the "Parties"). SECTION 1. Recitals WHEREAS, Grantor is the sole owner in fee simple of __11.61___ acres of real property located in the City of Milton, Georgia (the "City"), more particularly described in Exhibit A and shown in Exhibit B, which exhibits are attached hereto and incorporated by this reference (the "Protected Property"); and WHEREAS, Grantee is a municipal governmental agency established, among other things, for the purpose of promoting the preservation of environmentally valuable and sensitive lands, recreational lands, agricultural lands, lands of historic or cultural importance, and op en space for charitable, scientific, educational and aesthetic purposes; and WHEREAS, the Protected Property qualifies as a TDR sending site under provisions of the Zoning Ordinance for the City of Milton, Georgia, including Chapter 64, Article XIX, Section 1.7 and Chapter 64, Article XX, Section 1.7; and WHEREAS, the Protected Property contains natural and/or agricultural features whose preservation would implement Milton’s goals for maintaining significant environmental areas, rural character and open space; and WHEREAS, Grantor, as owner of the Protected Property, has the right to identify, protect, and preserve the natural and/or agricultural features of the Protected Property; and WHEREAS, the City of Milton Code of Ordinances authorizes the transfer of development rights ("TDR") from "sending sites", such as the Protected Property, that contain public benefits such that the preservation of that benefit by transferring development rights, in the form of density credits, to another site is in the public interest; and WHEREAS, development rights are transferred from sending sites through the conversion to density credits and documented in a TDR certificate, a process which requires the recording of a TDR conservation easement on the sending site property to indicate the development limitations on the property pursuant to Section 1.7.4 of Chapter 64, Article XIX and Section 1.7.4 of Chapter 64, Article XX of the City of Milton Code of Ordinances, and subsequent ordinances that the City may adopt pertaining to TDR sending sites; and WHEREAS, on _November 11, 2015, Grantor submitted an application to designate the Protected Property as a "sending site" and to obtain density credits for transfer from the Protected Property to qualified receiving sites ("TDR Application"), and 2 WHEREAS, the TDR Application materials submitted by Grantor are on file with the City of Milton Community Development Department and are incorporated herein by reference as if set forth in full; and WHEREAS, Grantor represents that the TDR Application materials reflect existing conditions on the Protected Property as of the date this Conservation Easement is executed, as well as the Grantor's intentions concerning future development, if any, to occur on the Protected Property; and WHEREAS, the Property in its present state is not developed and possesses significant open space, forested area, wildlife, and habitat features (collectively the “Conservation Values”). In particular, said Conservation Values include: 1. The preservation of the Rural Viewshed pursuant to the City of Milton 2030 Comprehensive Plan (Plan). The property is located along a main road (Arnold Mill/Hwy 140) that has been designated in the Plan for the preservation of its Rural Viewshed, that is, its pasture and forests that can be seen from the road. The property provides an opportunity to maintain the rural image and identity of the City. 2. The preservation of the lake and riparian buffers, mixed deciduous hardwood forest, gradients above 15%, and frontage along an unnamed tributary of Cooper Sandy Creek WHEREAS, the City has determined that the Protected Property qualifies as a sending site under Section 1.7.2 of Chapter 64, Article XIX and Section 1.7.2 of Chapter 64, Article XX of the City of Milton Code of Ordinances ("Sending Site"); and WHEREAS, the City has determined that the Protected Property is entitled to a total of __7.25___ development rights/density credits available for transfer ("Development Rights") from the Protected Property to qualified receiving sites as of the date of execution of this Conservation Easement; and WHEREAS, Grantor now desires to protect, maintain and preserve the natural and/or agricultural features of the property by granting a perpetual conservation easement on the Protected Property on the terms set forth herein; and WHEREAS, Grantee agrees by accepting this Easement to honor the intentions of Grantor as stated in this Easement and to preserve and protect in perpetuity the natural and/or agricultural features of the Protected Property for the benefit of this generation and the generations to come. SECTION 2. Conveyance, Consideration and Perpetual Duration For the reasons stated above, as part of the City’s TDR sending site provisions, and in consideration of the mutual covenants, terms, conditions, and restrictions contained in this Easement, and good and valuable consideration, the receipt, sufficiency and adequacy of which is hereby acknowledged, Grantor hereby voluntarily grants, conveys and warrants to 3 Grantee a conservation easement over the Protected Property, consisting of certain rights in the Protected Property, as defined in this Easement, subject only to the terms and restrictions contained in this Easement and to title matters of record as of the effective date of this Easement. This Conservation Easement shall be perpetual. It is an easement in gross, runs with the land and is enforceable by Grantee against Grantor, their personal representatives, he irs, successors and assigns, lessees, agents and licensees. SECTION 3. Purpose The purpose of this Easement (the "Purpose") is to protect the natural or agricultural features whose retention would implement Milton’s goals for maintaining significant environmental areas, rural character and open space by ensuring that the natural or agricultural features of the Property will be retained forever. SECTION 4. Development Rights The City has issued _7.25__ TDRs associated with the Protected Property. SECTION 5. Rights Conveyed to Grantee To accomplish the Purpose, the following rights are provided to Grantee by this Easement: A. The right to preserve and protect in perpetuity the natural and agricultural features of the Protected Property. B. The right to enter the Protected Property at reasonable times in order to monitor Grantor's compliance with and to enforce the terms of this Easement, provided that such entry shall be conducted with a minimum of 10 calendar-day written notice. Such visit shall not in any case unreasonably interfere with Grantor's use and quiet enjoyment of the Protected Property. No right of access by the general public to the Protected Property is authorized by this Easement without the Grantor's prior consent. C. The right to enforce the terms of this Easement and the right to prevent any activity on or use of the Protected Property that is inconsistent with the Purpose, and the right to require the restoration of the Protected Property as necessary to fulfill the Purpose of this Easement. D. No other rights are granted to Grantee other than those listed in subsections A. through C. of this Section 5. SECTION 6. Prohibited Uses and Activities Any activity or use of the Protected Property that is inconsistent with the Purpos e of this Easement is prohibited, including but not limited to, the following: A. Grantor shall not use the Development Rights now or hereafter associated with the Protected Property, except those, if any, reserved in connection with Grantor’s Reserved Rights 4 set forth in Section 7 of this Easement. Grantor and Grantee agree that such Development Rights are removed from the Protected Property and may not be used or transferred to any other portion of the Protected Property as it now or hereafter may be bou nded or described. The Development Rights of the Protected Property may, however, be transferred to other property pursuant to the Transfer of Development Rights program or a successor program authorized by the City as currently adopted or hereafter amended. Notwithstanding anything to the contrary contained herein in this Easement, in the event Grantee (including its successors and assigns) ever terminates or materially modifies or limits its ordinance so as to defeat the Purpose as defined herein above and as set forth in Section 1.7.4 of Chapter 64, Article XIX and Section 1.7.4 of Chapter 64, Article XX of the City of Milton Code of Ordinances, Grantor shall have the right to terminate this Easement by providing written notice of the exercise of this right to Grantee along with the tendering of an equivalent number of TDRs as the number of TDRs issued in conjunction with this Easement as described in Section 4, above. The specific TDRs tendered by Grantor need not have been originally issued with respect to the Easement, provided that the TDRs were issued by Grantee. B. Grantor shall not undertake any division, subdivision or partitioning of the Protected Property, whether by physical or legal process, which includes, but is not limited to, any subdivision, short subdivision, platting, binding site plan, testamentary division, or other process by which the Protected Property is divided into lots or in which title to different portions of the Protected Property are not held in unified ownership ("Land Division"), unless such Land Division allocates any Reserved Development Rights reserved to Grantor as set forth in Section 7, if any, between the divided parcels of Protected Property in a manner consistent with the terms of this Easement. This Easement shall continue to encumber all portions of the Protected Property whether or not the Protected Property is held in unified ownership. C. Grantor shall not construct any buildings, dwellings, structures, or other improvements of any kind on the Protected Property, except as may be set forth in Section 7 of this Easement. D. Grantor shall not use the Protected Property for any purpose not allowed in the AG-1 zoning district if the property is located therein, or for a purpose not allowed in the T2 zone if in the Crabapple Overlay District or Deerfield Overlay District. E. Grantor shall not explore for, or develop and extract, minerals, soil, sand, gravel, rock, peat, sod or hydrocarbons on or below the surface of the Protected Property in a manner detrimental to the preservation and protection of the natural and/or agricultural features of the Protected Property. F. Grantor shall not engage in any use or activity on the Protected Property that causes or is likely to cause material soil degradation or erosion detrimental to the preservation and protection of the natural and/or agricultural features of the Protected Property. G. Grantor shall not dispose of or store rubbish, garbage, debris, vehicles, abandoned equipment, parts thereof, or other hazardous waste or material on the Protected Property detrimental to the preservation and protection of the natural and/or agricultural features of the Protected Property. SECTION 7. Reserved Rights of Grantor 5 Grantor may engage, or allow others to engage in, uses and activities of the Protected Property that are not inconsistent with the Purpose of this Easement to preserve and protect the natural and/or agricultural features of the Protected Property, and are permitted in the AG-1 zoning district. However, regardless of future zoning code changes, no more than, _1 (one)_ residential dwelling unit shall be permitted on the Protected Property and only if that dwelling unit can be located on the Protected Property in compliance with all applicable regulations. For the avoidance of doubt, nothing contained in this Easement shall limit the size or height of any such dwelling unit other than being constructed in accordance with the applicable rules and regulations at the time of construction. In addition to the foregoing and without limitation thereof, Grantor shall also be permitted to construct and maintain ancillary features and components associated with any such dwelling unit, including, without limitation, a separate multi-vehicle garage (and residential apartment located over any such garage), a barn, stables, storage shed, swimming pool, outdoor kitchen, wooden and rail fences. All structures shall reasonably avoid any material impacts to the scenic views, and materially avoid impacting natural resource areas including gradients over 15%. In conjunction with this permanent limitation on development, the Grantee shall issue the Grantor _7.25__ transferable development rights (TDRs) with serial numbers ______________ through ______________. These TDRs are only transferable for use on receiving sites designated by the City a nd only in compliance with all applicable regulation of the City. SECTION 8. Notice of Intent to Undertake Certain Potentially Inconsistent Activities Whenever Grantor plans to undertake the following uses or activities on the Protected Property, which might be inconsistent with the terms of this Easement depending on the manner in which they are carried out, Grantor will notify Grantee in writing not le ss than 30 days prior to the date that Grantor intends for the new activity or use to begin: (A) any Land Division of the Protected Property (Section 6.B); and (B) any extraction of minerals, soil, sand, gravel, rock, peat, sod or hydrocarbons on or below the surface of the Protected Property (Section 6.E). The notice shall describe the nature, scope, design, location, timetable and other material aspects of the proposed use to permit Grantee to make an informed judgment as to its consistency with the terms and Purpose of this Easement. Grantee may withhold its approval only upon a reasonable determination by Grantee that the use or activity as proposed would be inconsistent with the Purpose of this Easement. SECTION 9. Enforcement If Grantee becomes aware of a violation or threatened violation of this Easement by Grantor, Grantee shall provide Grantor written notice of such violation or threatened violation. Such notice shall demand that Grantor cure the violation or threatened violation within 45 days or other time period as agreed to by the Parties. Where the violation involves injury to the Protected Property resulting from any use or activity inconsistent with the Purpose, such notice may include a demand to restore the portion of the Protected Propert y so injured to its prior condition in accordance with a plan approved by Grantee. 6 If corrective measures are not taken, Grantee may bring an action at law or in equity in a court having jurisdiction to enforce the terms of this Easement: (a) to enjoin the violation by temporary or permanent injunction; (b) to require the restoration of the Protected Property to the condition that existed prior to any such injury (normal wear and tear excepted); and (c) to recover damages for violation of the terms of this Easement or injury to the natural character protected by this Easement. In any suit, action, or proceeding to enforce or interpret this Easement, the substantially prevailing party in any such suit, action or proceeding will be entitled to recover from the non-prevailing party all costs and expenses incurred therein, including reasonable attorneys' fees and costs of litigation, including the fees of experts and consultants, and all such costs and expenses will be included in any judgment secured by such prevailing party. No failure on the part of Grantee to enforce any covenant or provision hereof shall discharge or invalidate such covenant or any other covenant, condition, or provision hereof or affect the right to Grantee to enforce the same in the event of a subsequent breach or default. SECTION 10. Costs, Liabilities, Taxes, Environmental Compliance, and Indemnification A. Costs, Legal Requirements, and Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Protected Property. Grantor remains solely responsible for obtaining any applicable governmental permits and approval for any construction or other activity or use permitted by this Easement, and all such construction or other activity or use shall be undertaken in accordance with all applicable federal, state, and local laws, regulations, and requirements. Grantor shall prevent the perfection of any liens against the Protected Property that are not subordinate to this Easement arising out of any work performed for, material furnished to, or obligation incurred by Grantor. B. Taxes. Grantor shall pay all taxes levied against the Protected Property by government authority as they become due, and shall furnish Grantee with satisfactory evidence of payment within thirty (30) days of any such written request. If Grantor fails to pay any taxes when due, Grantee is authorized, but in no event obligated, to make or advance such payment of taxes upon five (5) days prior written notice to Grantor, in accordance with any bill, statement, or estimate procured from the appropriate authority, without inquiry into the validity of the taxes or the accuracy of the bill, statement, or estimate, and the obligation created by such payment shall bear interest until paid by Grantor at the maximum rate allowed by law. C. Representations and Warranties. Grantor represents and warrants (but without investigation) and to Grantor's knowledge: 1. There are no apparent or latent defects in or on the Protected Property; 2. Grantor and the Protected Property are in compliance with all federal, state, and local laws, regulations, and requirements applicable to the Protected Property and its use; 3. There has been no release, dumping, burying, abandonment or migration from off- site on the Protected Property of any substances, materials, or wastes that are or are 7 designated as, hazardous, toxic, dangerous, or harmful or contain components that are, or are designated as, hazardous, toxic, dangerous, or harmful and/or that are subject to regulation as hazardous, toxic, dangerous, or harmful by any federal, state or local law, regulation, statute, or ordinance; 4. Grantor has not disposed of any hazardous substances off-site, nor have they disposed of substances at sites designated or proposed to be designated as federal Superfund (42 U.S.C. § 9601 et seq.) or state Model Toxics Control Act (RCW 70.105D.010 et seq.) ("MTCA") sites; and 5. There is no pending or threatened litigation affecting the Protected Property or any portion of the Protected Property that will materially impair the Conservation Values of any portion of the Protected Property. No civil or criminal proceedings have been instigated or are pending against Grantor by government agencies or third parties arising out of alleged violations of environmental laws, and Grantor has not received any notices of violation, penalties, claims, demand letters, or other notifications relating to a breach of environmental laws. D. Remediation. If, at any time, there occurs, or has occurred, a release in, on, or about the Protected Property of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic or dangerous to the air, water or soil, or in any way harmful or threatening to human health or environment, Grantor agrees to take all steps necessary under applicable law to assure its containment and remediation, including any cleanup that may be required under applicable law, unless the release was caused by Grantee, in which case Grantee should be responsible for remediation in accordance with all applicable laws. E. Control. Nothing in this Easement shall be construed as giving rise, in the absence of a judicial decree, to any right or ability in Grantee to exercise physical or managerial control over the day-to-day operations of the Protected Property, or any of Grantor's activities on the Protected Property, or otherwise to become an operator with respect to the Protected Property within the meaning of the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended ("CERCLA"), and MTCA. F. Grantor's Indemnification. Grantor hereby agrees to release and hold harmless, indemnify, and defend Grantee and its officials, members, directors, officers, employees, agents, and contractors and the personal representatives, heirs, successors, and assigns of each of them (collectively "Indemnified Parties") from and against all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgments, including, without limitation, reasonable attorneys' and consultants' fees, arising from or in any way connected with: 1. Injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Protected Property that is not a consequence of any activity of any of the Indemnified Parties undertaken under the rights granted to Grantee under this Easement; 2. Violations or alleged violations of, or other failure to comply with, any federal, state or local environmental law or regulation relating to pollutants or hazardous, toxic or dangerous 8 substances or materials, including, without limitation, CERCLA and MTCA, by any person other than any of the Indemnified Parties, in any way affecting, involving, or relating to the Protected Property, unless such violations or alleged violations are due to the acts or omissions of any of the Indemnified Parties on the Protected Property; 3. The presence or release in, on, from, or about the Protected Property, at any time, of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement of hazardous, toxic or dangerous to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the Indemnified Parties; 4. The obligations, covenants, representations and warranties specified in subsections A, B, C, and D of this section. SECTION 11. Sale of the Protected Property Grantor agrees for itself, its heirs, successors and assigns, to notify Grantee in writing of the names and addresses of any party to whom the Protected Property, or any part thereof, is to be transferred at or prior to the time said transfer is consummated. If the Protected Property is sold or otherwise conveyed, Grantor agrees to use reasonable efforts to incorporate the terms of this Easement by reference in any deed or other legal instrument by which it divests itself of any interest in all or a portion of the Protected Property, including, without limitation, a leasehold interest, and describe this Easement in and append it to any executory contract for the transfer of any interest in the Protected Property. The failure of Grantor to perform any act required by this subsection will not impair the validity of this Easement or limit its enforceability in any way. SECTION 12. Amendment This Easement may be amended by agreement of the Parties; however, any such amendment must be consistent with the Purpose of this Easement and the provisions of the City of Milton TDR Program (or any such successor thereto), the Georgia Code of Ordinances, and must be recorded in the official records of Fulton County, Georgia, and any other jurisdiction in which such recording is required. SECTION 13. Notices Any notice, approval or communication that either Party is required to send under this Easement must be given in writing to the following addresses: To Grantor: ____________________________________________ ____________________________________________ ____________________________________________ 9 To Grantee: ______City of Milton_________________________ Attention: __________________________ ______13000 Deerfield Parkway, Suite 107-F___ ______Milton, GA 30004_____________________ or to such other address as either party designates by written notice to the other. SECTION 14. General Provisions A. Recordation. Grantee will record this Easement in a timely fashion in the official records of Fulton County, Georgia, and may re-record it at any time as may be required to preserve its rights in this Easement. B. Controlling Law and Interpretation. The interpretation and performance of this Easement is governed by the laws of the State of Georgia. Any general rule of construction to the contrary notwithstanding, this Easement will be liberally construed in favor of the grant to effect the Purpose of this Easement, the policies and purpose of the TDR Program and the policy and purposes of Chapter 64, Article XIX, Section 1.7 and Chapter 64, Article XX, Section 1.7 of the City of Milton, Georgia Code of Ordinances. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the Purpose that would render the provision valid will be favored over any interpretation that would render it invalid. C. Severability—Entire Agreement-No Forfeiture. If any provision of this Easement, or its application to any person or circumstance, is found to be invalid, the remainder of the provisions of this Easement and the application of such provision to any other persons or in any other circumstances shall remain valid. This instrument sets forth the entire agreement of the Parties with respect to the Protected Property and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Protected Property, all of which are merged into this Easement. D. Assignment. This Easement is transferable, but Grantee may assign its rights and obligations under this Easement only to Grantee's judicially appointed successor or an organization qualified as a “holder” pursuant to O.C.G.A. § 44-10-2. Any assignment shall not include the transfer of any development rights that have been sold. As a condition of such transfer, Grantee shall require that the transferee exercise its rights under the assignment consistent with the Purpose of this Easement. Grantee shall notify Grantor in writing, at Grantor's last known address, in advance of such assignment. The failure of Grantee to give such notice shall not affect the validity of such assignment nor shall it impair the validity of this Easement or limit its enforceability in any way. E. Counterparts. The Parties may execute this instrument in two or more counterparts, which will be signed by both Parties. Each counterpart shall be deemed an original instrument 10 as against any Party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. F. Effective Date. The effective date of this Easement is the date of recording in the records of the City of Milton, Georgia. SECTION 15. Attachments A. Legal Description of Protected Property Subject to Easement. B. Site Map(s) TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever. GRANTOR: ________________________________ BY: ________________________________ Name: ________________________________ WITNESSES: ____________________________________ ____________________________________ Sworn to and Subscribed before me this _____ day of _____________, 20___ . _____________________________________ Notary Public My Commission expires: ______________ 11 GRANTEE: CITY OF MILTON, GEORGIA BY: ________________________________ Name: ________________________________ Title ________________________________ WITNESSES: ____________________________________ ____________________________________ Sworn to and Subscribed before me this _____ day of _____________, 20___ . _____________________________________ Notary Public My Commission expires: ______________ 12 E X H I B I T A Legal Description of Property Subject to Easement 13 E X H I B I T B Site Map of Property Subject to Easement EXHIBIT A N/FYEH, EMILYDB 37532 PG 697N/FOGLETHORPE POWER CON/FPIRKLE, TINAN/FPATTERSON, BILLYN/FNORTON, DENNISN/FLIM, JOHNDB 47838 PG 15GIRD - GEORGIA WEST 0 60 120 1801"OTF1/2"RBF100.00'25' B.L.6 0 ' B .L .25' B.L.25' B.L.25' B.L.5 0 ' C IT Y W A T E R B U F F E R 50' CITY WATER BUFFER50' CITY WATER BUFFER50' CITY WATER BUFFER50' CITY WATER BUFFERIPSIPSSPRING HEAD1/2"RBF1/2"CTF1/2"CTF1/2"CTF1/2"RBF75' IMPERVIOUS BUFFER75' IMPERVIOUS BUFFER75' IMPERVIOUS BUFFER2002PN30PN27O 36PN27H 18O27O36O27H27B 9B 12B 12B 12B 8C8H 24O 27O 27B 8B 8B 8O 30H 48H 30H 36B 24SG12SG24P 40H24O36O24H30PN24PN24O30H36PN24PN27PN36O242068 PN30O27O36SG30O30SG36H36SG27O24H36O24O27PN24PN24PN24PN24C10C8C8PN30PN30PN36PN36PN36O27B8O36Surveyor's Acknowledgment I herby certify that this survey was prepared in conformity with The Technical Standards for Property Surveys in Georgia as set forth in Chapter 180-7 of the Rules of the Georgia Board of Registration for Professional Engineers and Land Surveyors and as set forth in the Georgia Plat Act O.C.G.A. 15-6-67.NOTES1.ALL IRON PINS SET ARE 1/2" REBAR UNLESS STATED OTHERWISE.2. SURVEY AND BEARING BASIS ESTABLISHED WITH GPS USING A NETWORK ADJUSTED REAL TIME KINEMATIC ROVER.3. THE FIELD DATA UPON WHICH THIS PLAT IS BASED HAS RELATIVE POSITIONAL ACCURACY OF +-0.03 FEET.4. THIS PLAT HAS BEEN CALCULATED FOR CLOSURE AND IS FOUND TO BE ACCURATE WITHIN ONE FOOT IN 150,000 FEET.5. EQUIPMENT USED IN THIS SURVEY WAS A CARLSON SURVEYOR + DATA COLLECTOR AND A TOPCON GPT 3003LW TOTAL STATION.6. FIELD WORK COMPLETED ON NOVEMBER 10, 2015. Page is too large to OCR. CITY OF MILTON COMMUNITY DEVELOPMENT APPLICATION TRANSFER OF DEVELOPMENT RIGHTS OPEN SPACE SENDING SITE LANDOWNER INFORMATION n 1 n Nam Mailing Address I LiL' City and State Zip Code 30 0 Phone: 10 y i� (l �� Alternate Phone:_ Q Ll 8—,7 6_ Sd Email r r - .J d " +-1 Are you the only owner or do others also have an ownership interest in the property to be considered as a sending site for the Transfer of Development Rights Program? All Part If part, please describe: If part, do you have authorization to represent other interest holders? Please attach all Letters of Authorization. ry contact person and/or agent if different than landowner(s): ame: Email: Alternate Phone: II. PROPERTY INFORMATION Tax Parcel Number(s): Attach a legal description(s) of each parcel number. Property Address(es) or Nearest Street or Road: 3 r- n t t I of ) T ,..-j _3 UG,i V Total Acreage of Property: ha a y Total Constrained Acreage (lakes, streams, wetlands, buffers, landfills, etc.): Sc Total Unconstrained Acreage: Page 1 Are there any existing dwelling units located on the property? Yes _ No If yes, how many? Are there any other structures on the property? Yes Please provide a brief description of all site structures: No _X If yes, how many? Please attach labeled pictures illustrating the existing buildings and general property. Label all buildings on the site plan (including the date the photograph was taken). i List the current zoning of the property (e.g. AG -1, R-1, R-2, etc.): ? Describe how the property is currently being used (e.g. agriculture, forestry, home site, etc.): Are there any existing easements or deed restrictions aftec in this property? (e.g. power line corridors, access easements, mining rights, etc.) Yes No If so, please describe briefly: Lr'� j t j u 41 Does the property have any year-round submerged lands such as lakes, rivers, streams, or ponds? Yes No III. STATEMENT OF INTENT: I want to retain l (number) dwelling units or development rights with the property for existing or future development. I intend to maintain the property in private ownership. Page 2 IV. SENDING SITE CRITERIA: Describe your property's natural and/or agricultural features and explain how their retention would implement the City's goals for maintaining significant environmental areas, rural character and open space: M F ra a a I , l n 1_ -1 u(J � a Q f! r -,e / V. Applicant must submit written evidence of consent from all lienholders to severance and transfer of development rights as well as to execution of e required Conservation Easement associated with issuance of the TDRs. G LCAI� VI. TITLE COMPANY INFORMATION A title report must be supplied by the landowner as part of the TDR application. The title report shall be submitted in either hard copy or on a disk in PDF format. i r1 Name of Title Company ! A Address a L 0 (� City and State Date of submitted Title Report III. MORTGAGE COMPANY/LIEN HOLDER INFORMATION Are there any liens or mortgages on the property? Yes Mortgage Company/Lien Holder's Name Address City and State: Zip Code: Mortgage Company/Lien Holder's Name Address City and State: Zip Code: LA ZIP Code G G No (Additional Mortgage Companies/Lien Holders must be listed on a separate attachment) Page 3 X,, Z P uni ni in 3 7 1 r ;3 7 Vkl- 14. 4 140I. , =::r- 20 S —Q, - 2 r --- Y �P Springs -1 14 ji il L 4� 40 0" Milton if R cr 92 92 r ed'Ae 0SW Henibrue. Rd 120 1 I Q 20 - z All) hai e t t a L SW gKI6 dl/ l J L N'tord Rq Johns Creek S m i Fulton County provides the data on this map r our 13235 Arnold Mill Rd personal use "as is". The data are not guaranteed to be accurate, correct, or complete. The feature locations depicted 1 n these maps are approximate and are not acrate to surveying or engineering standards. necessarily cu Fulton County, Georgia Fulton County assumes no responsibility for losses resulting from the use these data, even if Fulton County is advised of the possibility ofsuch losses. RETURN TO: City of Milton Community Development Milton City Hall 13000 Deerfield Parkway Suite 107 Milton, GA 30004 Phone: 678.242.2500 Fax: 678.242.2499 E-mail: info a cityofmiltonga.us For questions, please contact: Kathleen Field Community Development Director 678-242-2555 VIII. PROPERTY OWNER CERTIFICATION FOR CITY USE ONLY: Date Received Completed Application Date I hereby certify that the information furnished on this application and the attachments are true, that I am legal owner of the property described above and have authority to make this application on behalf of all other owners (if any), that we have marketable title to the property, and that I have the legal right to restrict the use of the property. I grant permission to the City of Milton to seek an update from the Title Company prior the City's issuance of a Transfer of Development Right Certificate. I acknowledge that the Community Development Director may reject this application prior to the issuance of TDRs if any of the information is deemed to be incorrect or deceptive and may require additional information beyond that described herein if necessary to determine whether or not the property qualifies as a sending site or how many TDRs the propert ntit ed Signatur of Owner (Applin' t)Date _ Signature of Co -Owner (Co -Applicant) Page 5 Date x _ 133Q5 9a ; 77, rl p's 1.3285 s- ta• AWE•' -`$� - ,. #�9 13270 13215 A '' r: _ 1 I „ .a` 2 J . f. �" i{; `j�ij1 - 1'. "�'w14 '� 5�• i 1 . _ 5 F IA A4 I 4' 4r tl Vim290ft Fulton County provides the data on this map for your 13235 Arnold Mill Rd personal use ris". The data are not guaranteed to be accurate, correct, or complete. The feature locations depicted in these maps are approximate and are not necessarily accurate to surveying or engineering standards. Fulton County, Georgia Fulton County assumes no responsibility for losses resulting from the use these data, even if Fulton County is advised of the possibility ofsuch losses. HOME OF ' r s �. ...». 4.. aay...r..xx �.... . .moi. .. ESTA BLIS11FD 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: January 28, 2016 FROM: City Manager AGENDA ITEM: Consideration to Hold a Conservation Easement for a Sending Site Property in the City's TDR Program Located at 13265 Bethany Road. MEETING DATE: Monday, February 1, 2016 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: XAPPROVED (J NOT APPROVED CITY ATTORNEY APPROVAL REQUIRED: J YES (J NO CITY ATTORNEY REVIEW REQUIRED: OYES (J NO APPROVAL BY CITY ATTORNEY (APPROVED (J NOT APPROVED PLACED ON AGENDA FOR: REMARKS P"701 ! to w YOU( PHONE: 678.242.25001 FAX: 678.242.2499 Green *re«r�ra* Top10U infoftityofmiltonga.us I www.cityofmiltonga.usity C ® ommun N'ILDLIFr .L b slj) B ELY 13000 Deerfield Parkway, Suite 107 I Milton GA 30004 To: Honorable Mayor and City Council Members From: Michele McIntosh-Ross, Principal Planner Date: Submitted on January 28, 2016 for the February 1, 2016 Regular Council Meeting Agenda Item: Consideration to Hold a Conservation Easement, for a Sending Site Property in the City’s TDR Program, Located at 13265 Bethany Road ____________________________________________________________________________ Department Recommendation: Approval Executive Summary: Pursuant to the city’s TDR program, an application was submitted to the city to request consideration to qualify the property at 13265 Bethany Road as a TDR sending site and to place a conservation easement on the property. The applicant has reserved the right to keep the existing house and accessary structures or rebuild a house, a pool and accessary buildings as allowed per the AG-1 zoning and the TDR program. After staff reviewed the application documents and visited the site, it was determined that the site met the criteria to be a TDR sending site. The 5.09 acre site is zoned AG-1 and is located along Bethany Road on the east side. There is an existing ranch style house that can be seen from Bethany Road. The property is forested and includes hardwoods and specimen trees. There are no lakes or streams. This property will contribute 5.09 acres of conservation land to the city of Milton. The property yields 5 TDR credits. Funding and Fiscal Impact: None. Page 2 of 2 Alternatives: None. Legal Review: Jarrard & Davis, LLP. Paul Frickey (01-27-2016) Concurrent Review: Chris Lagerbloom, City Manager Attachment(s): Conservation Easement TDR Application Exhibits and photos 1 When recorded return to: ________________________________ ________________________________ ________________________________ CONSERVATION EASEMENT THIS DEED OF CONSERVATION EASEMENT ("Easement") is made by __Robert A. Brannon___ having an address at _13265 Bethany Road, Milton GA 30004___ ("Grantor"), in favor of City of Milton, Georgia, a political subdivision of Georgia ("Grantee") (collectively, the "Parties"). SECTION 1. Recitals WHEREAS, Grantor is the sole owner in fee simple of __5.09___ acres of real property located in the City of Milton, Georgia (the "City"), more particularly described in Exhibit A and shown in Exhibit B, which exhibits are attached hereto and incorporated by this reference (the "Protected Property"); and WHEREAS, Grantee is a municipal governmental agency established, among other things, for the purpose of promoting the preservation of environmentally valuable and sensitive lands, recreational lands, agricultural lands, lands of historic or cultural importance, and op en space for charitable, scientific, educational and aesthetic purposes; and WHEREAS, the Protected Property qualifies as a TDR sending site under provisions of the Zoning Ordinance for the City of Milton, Georgia, including Chapter 64, Article XIX, Section 1.7 and Chapter 64, Article XX, Section 1.7; and WHEREAS, the Protected Property contains natural and/or agricultural features whose preservation would implement Milton’s goals for maintaining significant environmental areas, rural character and open space; and WHEREAS, Grantor, as owner of the Protected Property, has the right to identify, protect, and preserve the natural and/or agricultural features of the Protected Property; and WHEREAS, the City of Milton Code of Ordinances authorizes the transfer of development rights ("TDR") from "sending sites", such as the Protected Property, that contain public benefits such that the preservation of that benefit by transferring development rights, in the form of density credits, to another site is in the public interest; and WHEREAS, development rights are transferred from sending sites through the conversion to density credits and documented in a TDR certificate, a process which requires the recording of a TDR conservation easement on the sending site property to indicate the development limitations on the property pursuant to Section 1.7.4 of Chapter 64, Article XIX and Section 1.7.4 of Chapter 64, Article XX of the City of Milton Code of Ordinances, and subsequent ordinances that the City may adopt pertaining to TDR sending sites; and WHEREAS, on _December 10, 2015, Grantor submitted an application to designate the Protected Property as a "sending site" and to obtain density credits for transfer from the Protected Property to qualified receiving sites ("TDR Application"), and 2 WHEREAS, the TDR Application materials submitted by Grantor are on file with the City of Milton Community Development Department and are incorporated herein by reference as if set forth in full; and WHEREAS, Grantor represents that the TDR Application materials reflect existing conditions on the Protected Property as of the date this Conservation Easement is executed, as well as the Grantor's intentions concerning future development, if any, to occur on the Protected Property; and WHEREAS, the Property in its present state has one house and possesses significant open space, forested area, wildlife, and habitat features (collectively the “Conservation Values”). In particular, said Conservation Values include: 1. The preservation of the Rural Viewshed pursuant to the City of Milton 2030 Comprehensive Plan (Plan). The property is located along a main road (Bethany Road) that has been designated in the Plan for the preservation of its Rural Viewshed, that is, its pasture and forests that can be seen from the road. The property provides an opportunity to maintain the rural image and identity of the City. 2. The preservation of the mixed deciduous hardwood forest, and gradients above 15%. WHEREAS, the City has determined that the Protected Property qualifies as a sending site under Section 1.7.2 of Chapter 64, Article XIX and Section 1.7.2 of Chapter 64, Article XX of the City of Milton Code of Ordinances ("Sending Site"); and WHEREAS, the City has determined that the Protected Property is entitled to a total of __5___ development rights/density credits available for transfer ("Development Rights") from the Protected Property to qualified receiving sites as of the date of execution of this Conservation Easement; and WHEREAS, Grantor now desires to protect, maintain and preserve the natural and/or agricultural features of the property by granting a perpetual conservation easement on the Protected Property on the terms set forth herein; and WHEREAS, Grantee agrees by accepting this Easement to honor the intentions of Grantor as stated in this Easement and to preserve and protect in perpetuity the natural and/or agricultural features of the Protected Property for the benefit of this generation and the generations to come. SECTION 2. Conveyance, Consideration and Perpetual Duration For the reasons stated above, as part of the City’s TDR sending site provisions, and in consideration of the mutual covenants, terms, conditions, and restrictions contained in this Easement, and good and valuable consideration, the receipt, sufficiency and adequacy of which is hereby acknowledged, Grantor hereby voluntarily grants, conveys and warrants to Grantee a conservation easement over the Protected Property, consisting of certain rights in the Protected Property, as defined in this Easement, subject only to the terms and restrictions 3 contained in this Easement and to title matters of record as of the effective date of this Easement. This Conservation Easement shall be perpetual. It is an easement in gross, runs with the land and is enforceable by Grantee against Grantor, their personal representatives, heirs, successors and assigns, lessees, agents and licensees. SECTION 3. Purpose The purpose of this Easement (the "Purpose") is to protect the natural or agricultural features whose retention would implement Milton’s goals for maintaining significant environmental areas, rural character and open space by ensuring that the natural or agricultural features of the Property will be retained forever. SECTION 4. Development Rights The City has issued _5__ TDRs associated with the Protected Property. SECTION 5. Rights Conveyed to Grantee To accomplish the Purpose, the following rights are provided to Grantee by this Easement: A. The right to preserve and protect in perpetuity the natural and agricultural features of the Protected Property. B. The right to enter the Protected Property at reasonable times in order to monitor Grantor's compliance with and to enforce the terms of this Easement, provided that such entry shall be conducted with a minimum of 10 calendar-day written notice. Such visit shall not in any case unreasonably interfere with Grantor's use and quiet enjoyment of the Protected Property. No right of access by the general public to the Protected Property is authorized by this Easement without the Grantor's prior consent. C. The right to enforce the terms of this Easement and the right to prevent any activity on or use of the Protected Property that is inconsistent with the Purpose, and the right to require the restoration of the Protected Property as necessary to fulfill the Purpose of this Easement. D. No other rights are granted to Grantee other than those listed in subs ections A. through C. of this Section 5. SECTION 6. Prohibited Uses and Activities Any activity or use of the Protected Property that is inconsistent with the Purpose of this Easement is prohibited, including but not limited to, the following: A. Grantor shall not use the Development Rights now or hereafter associated with the Protected Property, except those, if any, reserved in connection with Grantor’s Reserved Rights set forth in Section 7 of this Easement. Grantor and Grantee agree that suc h Development Rights are removed from the Protected Property and may not be used or transferred to any 4 other portion of the Protected Property as it now or hereafter may be bounded or described. The Development Rights of the Protected Property may, however, be transferred to other property pursuant to the Transfer of Development Rights program or a successor program authorized by the City as currently adopted or hereafter amended. Notwithstanding anything to the contrary contained herein in this Easement, in the event Grantee (including its successors and assigns) ever terminates or materially modifies or limits its ordinance so as to defeat the Purpose as defined herein above and as set forth in Section 1.7.4 of Chapter 64, Article XIX and Section 1.7.4 of Chapter 64, Article XX of the City of Milton Code of Ordinances, Grantor shall have the right to terminate this Easement by providing written notice of the exercise of this right to Grantee along with the tendering of an equivalent number of TDRs as the number of TDRs issued in conjunction with this Easement as described in Section 4, above. The specific TDRs tendered by Grantor need not have been originally issued with respect to the Easement, provided that the TDRs were issued by Grantee. B. Grantor shall not undertake any division, subdivision or partitioning of the Protected Property, whether by physical or legal process, which includes, but is not limited to, any subdivision, short subdivision, platting, binding site plan, testamentary division, or other process by which the Protected Property is divided into lots or in which title to different portions of the Protected Property are not held in unified ownership ("Land Division"), unless such Land Division allocates any Reserved Development Rights reserved to Grantor as set forth in Section 7, if any, between the divided parcels of Protected Property in a manner consistent with the terms of this Easement. This Easement shall continue to encumber all portions of the Protected Property whether or not the Protected Property is held in unified ownership. C. Grantor shall not construct any buildings, dwellings, structures, or other improvements of any kind on the Protected Property, except as may be set forth in Section 7 of this Easement. D. Grantor shall not use the Protected Property for any purpose not allowed in the AG-1 zoning district if the property is located therein, or for a purpose not allowed in the T2 zone if in the Crabapple Overlay District or Deerfield Overlay District. E. Grantor shall not explore for, or develop and extract, minerals, soil, sand, gravel, rock, peat, sod or hydrocarbons on or below the surface of the Protected Property in a manner detrimental to the preservation and protection of the natural and/or agricultural features of the Protected Property. F. Grantor shall not engage in any use or activity on the Protected Property that causes or is likely to cause material soil degradation or erosion detrimental to the preservation and protection of the natural and/or agricultural features of the Protected Property. G. Grantor shall not dispose of or store rubbish, garbage, debris, vehicles, abandoned equipment, parts thereof, or other hazardous waste or material on the Protected Property detrimental to the preservation and protection of the natural and/or agricultural features of the Protected Property. SECTION 7. Reserved Rights of Grantor 5 Grantor may engage, or allow others to engage in, uses and activities of the Protected Property that are not inconsistent with the Purpose of this Easement to preserve and protect the natural and/or agricultural features of the Protected Property, and are permitted in the AG-1 zoning district. However, regardless of future zoning code changes, no more than, _1 (one)_ residential dwelling unit shall be permitted on the Protected Property an d only if that dwelling unit can be located on the Protected Property in compliance with all applicable regulations. For the avoidance of doubt, nothing contained in this Easement shall limit the size or height of any such dwelling unit other than being constructed in accordance with the applicable rules and regulations at the time of construction. In addition to the foregoing and without limitation thereof, Grantor shall also be permitted to construct and maintain ancillary features and components associated with any such dwelling unit, including, without limitation, a separate multi-vehicle garage (and residential apartment located over any such garage), a barn, stables, storage shed, swimming pool, outdoor kitchen, wooden and rail fences. All structures shall reasonably avoid any material impacts to the scenic views, and materially avoid impacting natural resource areas including gradients over 15%. In conjunction with this permanent limitation on development, the Grantee shall issue the Grantor _5__ transferable development rights (TDRs) with serial numbers ______________ through ______________. These TDRs are only transferable for use on receiving sites designated by the City and only in compliance with all applicable regulation of the City. SECTION 8. Notice of Intent to Undertake Certain Potentially Inconsistent Activities Whenever Grantor plans to undertake the following uses or activities on the Protected Property, which might be inconsistent with the terms of this Easement depending on the manner in which they are carried out, Grantor will notify Grantee in writing not less than 30 days prior to the date that Grantor intends for the new activity or use to begin: (A) any Land Division of the Protected Property (Section 6.B); and (B) any extraction of minerals, soil, sand, gravel, rock, peat, sod or hydrocarbons on or below the surface of the Protected Property (Section 6.E). The notice shall describe the nature, scope, design, location, timetable and other material aspects of the proposed use to permit Grantee to make an informed judgment as to its consistency with the terms and Purpose of this Easement. Grantee may withhold its approval only upon a reasonable determination by Grantee that the use or activity as proposed would be inconsistent with the Purpose of this Easement. SECTION 9. Enforcement If Grantee becomes aware of a violation or threatened violation of this Easement by Grantor, Grantee shall provide Grantor written notice of such violation or threatened violation. Such notice shall demand that Grantor cure the violation or threatened violation within 45 days or other time period as agreed to by the Parties. Where the violation involves injury to the Protected Property resulting from any use or activity inconsistent with the Purpose, such notice may include a demand to restore the portion of the Protected Property so injured to its prior condition in accordance with a plan approved by Grantee. 6 If corrective measures are not taken, Grantee may bring an action at law or in equity in a court having jurisdiction to enforce the terms of this Easement: (a) to enjoin the violation by temporary or permanent injunction; (b) to require the restoration of the Protected Property to the condition that existed prior to any such injury (normal wear and tear excepted); and (c) to recover damages for violation of the terms of this Easement or injury to the natural character protected by this Easement. In any suit, action, or proceeding to enforce or interpret this Easement, the substantially prevailing party in any such suit, action or proceeding will be entitled to recover from the non-prevailing party all costs and expenses incurred therein, including reasonable attorneys' fees and costs of litigation, including the fees of experts and consultants, and all such costs and expenses will be included in any judgment secured by such prevailing party. No failure on the part of Grantee to enforce any covenant or provision hereof shall discharge or invalidate such covenant or any other covenant, condition, or provision hereof or affect the right to Grantee to enforce the same in the event of a subsequent breach or default. SECTION 10. Costs, Liabilities, Taxes, Environmental Compliance, and Indemnification A. Costs, Legal Requirements, and Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Protected Property. Grantor remains solely responsible for obtaining any applicable governmental permits and approval for any construction or other activity or use permitted by this Easement, and all such construction or other activity or use shall be undertaken in accordance with all applicable federal, state, and local laws, regulations, and requirements. Grantor shall prevent the perfection of any liens against the Protected Property that are not subordinate to this Easement arising out of any work performed for, material furnished to, or obligation incurred by Grantor. B. Taxes. Grantor shall pay all taxes levied against the Protected Property by government authority as they become due, and shall furnish Grantee with satisfactory evidence of payment within thirty (30) days of any such written request. If Grantor fails to pay any taxes when due, Grantee is authorized, but in no event obligated, to make or advance such payment of taxes upon five (5) days prior written notice to Grantor, in accordance with any bill, statement, or estimate procured from the appropriate authority, without inquiry into the validity of the taxes or the accuracy of the bill, statement, or estimate, and the obligation created by such payment shall bear interest until paid by Grantor at the maximum rate allowed by law. C. Representations and Warranties. Grantor represents and warrants (but without investigation) and to Grantor's knowledge: 1. There are no apparent or latent defects in or on the Protected Property; 2. Grantor and the Protected Property are in compliance with all federal, state, and local laws, regulations, and requirements applicable to the Protected Property and its use; 3. There has been no release, dumping, burying, abandonment or migration from off- site on the Protected Property of any substances, materials, or wastes that are or are 7 designated as, hazardous, toxic, dangerous, or harmful or contain components that are, or are designated as, hazardous, toxic, dangerous, or harmful and/or that are subject to regulation as hazardous, toxic, dangerous, or harmful by any federal, state or local law, regulation, statute, or ordinance; 4. Grantor has not disposed of any hazardous substances off-site, nor have they disposed of substances at sites designated or proposed to be designated as federal Superfund (42 U.S.C. § 9601 et seq.) or state Model Toxics Control Act (RCW 70.105D.010 et seq.) ("MTCA") sites; and 5. There is no pending or threatened litigation affecting the Protected Property or any portion of the Protected Property that will materially impair the Conservation Values of any portion of the Protected Property. No civil or criminal proceedings have been instigated or are pending against Grantor by government agencies or third parties arising out of alleged violations of environmental laws, and Grantor has not received any notices of violation, penalties, claims, demand letters, or other notifications relating to a breach of environmental laws. D. Remediation. If, at any time, there occurs, or has occurred, a release in, on, or about the Protected Property of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic or dangerous to the air, water or soil, or in any way harmful or threatening to human health or environment, Grantor agrees to take all steps necessary under applicable law to assure its containment and remediation, including any cleanup that may be required under applicable law, unless the release was caused by Grantee, in which case Grantee should be responsible for remediation in accordance with all applicable laws. E. Control. Nothing in this Easement shall be construed as giving rise, in the absence of a judicial decree, to any right or ability in Grantee to exercise physical or managerial control over the day-to-day operations of the Protected Property, or any of Grantor's activities on the Protected Property, or otherwise to become an operator with respect to the Protected Property within the meaning of the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended ("CERCLA"), and MTCA. F. Grantor's Indemnification. Grantor hereby agrees to release and hold harmless, indemnify, and defend Grantee and its officials, members, directors, officers, employees, agents, and contractors and the personal representatives, heirs, successors, and assigns of each of them (collectively "Indemnified Parties") from and against all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgments, including, without limitation, reasonable attorneys' and consultants' fees, arising from or in any way connected with: 1. Injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Protected Property that is not a consequence of any activity of any of the Indemnified Parties undertaken under the rights granted to Grantee under this Easement; 2. Violations or alleged violations of, or other failure to comply with, any federal, state or local environmental law or regulation relating to pollutants or hazardous, toxic or dangerous 8 substances or materials, including, without limitation, CERCLA and MTCA, by any person other than any of the Indemnified Parties, in any way affecting, involving, or relating to the Protected Property, unless such violations or alleged violations are due to the acts or omissions of any of the Indemnified Parties on the Protected Property; 3. The presence or release in, on, from, or about the Protected Property, at any time, of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement of hazardous, toxic or dangerous to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the Indemnified Parties; 4. The obligations, covenants, representations and warranties specified in subsections A, B, C, and D of this section. SECTION 11. Sale of the Protected Property Grantor agrees for itself, its heirs, successors and assigns, to notify Grantee in writing of th e names and addresses of any party to whom the Protected Property, or any part thereof, is to be transferred at or prior to the time said transfer is consummated. If the Protected Property is sold or otherwise conveyed, Grantor agrees to use reasonable efforts to incorporate the terms of this Easement by reference in any deed or other legal instrument by which it divests itself of any interest in all or a portion of the Protected Property, including, without limitation, a leasehold interest, and describe this Easement in and append it to any executory contract for the transfer of any interest in the Protected Property. The failure of Grantor to perform any act required by this subsection will not impair the validity of this Easement or limit its enforceability in any way. SECTION 12. Amendment This Easement may be amended by agreement of the Parties; however, any such amendment must be consistent with the Purpose of this Easement and the provisions of the City of Milton TDR Program (or any such successor thereto), the Georgia Code of Ordinances, and must be recorded in the official records of Fulton County, Georgia, and any other jurisdiction in which such recording is required. SECTION 13. Notices Any notice, approval or communication that either Party is required to send under this Easement must be given in writing to the following addresses: To Grantor: ____________________________________________ ____________________________________________ ____________________________________________ 9 To Grantee: ______City of Milton_________________________ Attention: __________________________ ______13000 Deerfield Parkway, Suite 107-F___ ______Milton, GA 30004_____________________ or to such other address as either party designates by written notice to the other. SECTION 14. General Provisions A. Recordation. Grantee will record this Easement in a timely fashion in the official records of Fulton County, Georgia, and may re-record it at any time as may be required to preserve its rights in this Easement. B. Controlling Law and Interpretation. The interpretation and performance of this Easement is governed by the laws of the State of Georgia. Any general rule of construction to the contrary notwithstanding, this Easement will be liberally construed in favor of the grant to effect the Purpose of this Easement, the policies and purpose of the TDR Program and the policy and purposes of Chapter 64, Article XIX, Section 1.7 and Chapter 64, Article XX, Section 1.7 of the City of Milton, Georgia Code of Ordinances. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the Purpose that would render the provision valid will be favored over any interpretation that would render it invalid. C. Severability—Entire Agreement-No Forfeiture. If any provision of this Easement, or its application to any person or circumstance, is found to be invalid, the remainder of the provisions of this Easement and the application of such provision to any other persons or in any other circumstances shall remain valid. This instrument sets forth the entire agreement of the Parties with respect to the Protected Property and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Protected Property, all of which are merged into this Easement. D. Assignment. This Easement is transferable, but Grantee may assign its rights and obligations under this Easement only to Grantee's judicially appointed successor or an organization qualified as a “holder” pursuant to O.C.G.A. § 44-10-2. Any assignment shall not include the transfer of any development rights that have been sold. As a condition of such transfer, Grantee shall require that the transferee exercise its rights under the assignment consistent with the Purpose of this Easement. Grantee shall notify Grantor in writing, at Grantor's last known address, in advance of such assignment. The failure of Grantee to give such notice shall not affect the validity of such assignment nor shall it impair the validity of this Easement or limit its enforceability in any way. E. Counterparts. The Parties may execute this instrument in two or more counterparts, which will be signed by both Parties. Each counterpart shall be deemed an original instrument 10 as against any Party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. F. Effective Date. The effective date of this Easement is the date of recording in the records of the City of Milton, Georgia. SECTION 15. Attachments A. Legal Description of Protected Property Subject to Easement. B. Site Map(s) TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever. GRANTOR: ________________________________ BY: ________________________________ Name: ________________________________ WITNESSES: ____________________________________ ____________________________________ Sworn to and Subscribed before me this _____ day of _____________, 20___ . _____________________________________ Notary Public My Commission expires: ______________ 11 GRANTEE: CITY OF MILTON, GEORGIA BY: ________________________________ Name: ________________________________ Title ________________________________ WITNESSES: ____________________________________ ____________________________________ Sworn to and Subscribed before me this _____ day of _____________, 20___ . _____________________________________ Notary Public My Commission expires: ______________ 12 E X H I B I T A Legal Description of Property Subject to Easement 13 E X H I B I T B Site Map of Property Subject to Easement Legal Description All that tract of parcel of land lying and being in land lot 986 of the 2nd district, 2nd section, Fulton County, Georgia and being more particularly described as follows: Beginning at an iron pin found (1/2” R/B) on the southeasterly right of way of Bethany Road having a (60 foot right of way), which point is located 3570.78 feet along the southeasterly side of said right of way from the northerly of right away of Mayfield Road having a (60 foot right away), said point being the TRUE POINT OF BEGINNING; running thence north 47 degrees 39 minutes 47 seconds east a distance of 97.54 feet to a point; running thence north 47 degrees 49 minutes 37 seconds east a distance of 99.08 feet to a point; running thence north 44 degrees 47 minutes 23 seconds east a distance of 45.84 feet to an iron pin found (1/2” R/B); running thence south 77 degrees 34 minutes 21 seconds east a distance of 399.18 feet to an iron pin found (1/2” R/B); running thence south 00 degrees 07 minutes 34 seconds west for a distance of 549.51 feet to an iron pin found (3/4” C/T); running thence south 89 degrees 04 minutes 48 seconds west a distance of 109.33 feet to an iron pin found (1/2” R/B); running thence north 44 degrees 03 minutes 24 seconds west a distance of 657.38 feet to an iron pin found (1/2” R/B), said point being the TRUE POINT OF BEGINNING. Said tract of land contains 5.089 acres, more or less, and being more particularly shown and delineated as Lot 1 on that Final Exemption Plat for Kris Nash, Wanda Nash and Campbell B. Fetzer by Brumbelow-Reese & Associates, Inc., Rodney H. Reese, survey license no.2072, dated April 2, 1999, last revised June 5, 2002; said plat recorded at Plat Book 232 Page 78, Fulton County, Georgia. Parcel ID: 22 -4460-0986-050-2 THE PURPOSE OF THIS EXHIBIT IS TO SEPARATE THE UNENCUMBERED PROPERTY FROM THE PORTION OF THE LAND TO BE PLACED IN A LOCAL DEVELOPMENT RIGHTS (TDR) PROGRAM. THIS EXHIBIT DOES oy ZTRADABLE SX\ UP or NOT CREATE A DIVISION OF PROPERTY OR ANY CHANGES IN USE OR `' V* /`�O� �� s ZONING CONDITIONS. IT IS NOTTO BE USED TO CONVEY PROPERTY. t-\ FH WA p DATE \C) 0 FOR THE DIRECTOR, DEPARTMENT OF COMMUNITY DEVELOPMENT /2" R/B .............. _77 I -o" N/,F'4<RIS NASH AND_WAN5rNASH- '3,3,4q'21,1 DEED BOOKi-5070:332 32" WA/TER OAK 399. PLATIBOOK 232:77-78, Z, I.P. 1/2" R/B 14" FH ?6' PINE DOGWOOD I.P.F. AIM 30" PINE &l-WATtOAK xii 1/2" R/B 'Atrl,�, 25- M�NPLE r 9" DOGWOOD Nlk 24" PIN 0+95.75 264PINE x Mfr 25" PIN 44 \ BRICK 1/2' RIB 20" CHERRY �,- RETAININq \ ,,2 UP \WALL 03W. OF,\P/L 26 -PINE LEGEND: ABBREVIATIONS AND SYMBOLS B.L. - BUILDING LINE C/L - CENTERLINE ClT - CRIMP TOP PIPE D.B. - DEED BOOK FH -FIRE HYDRANT F.I.R_M, - FLOOD INSURANCE RATE MAP I.P.F. - IRON PIN FOUND I.P.S. - IRON PIN SET (1/2" R(B) L# - LINE NUMBER (SEE LINE TABLE) L.L.L. - LAND LOT LINE N/F - NOW OR FORMERLY CIT - OPEN TOP PIPE PAV'T - PAVEMENT P.B. - PLAT BOOK PIL - PROPERTY LINE R.B.L. - REAR BUILDING LINE R/B - REINFORCING BAR RNV - RIGHT OF WAY S.B.L. - SIDE BUILDING LINE S.F. - SQUARE FEET UP - UTILITY POLE WM - WATER METER A - DELTA OF CURVE LEGEND: LINE DEFINITION —p— - POWER LINE — P[T- - POWERITELECOMMUNICTIONS LINE -T- -TELECOMMUNICATIONS LINE —o— - CHAIN LINK FENCE X - WIRE FARM FENCE 1-0— -WOOD FENCE , P 0 N, UNCONSTRAINED AREA = 5.089 ACRES (221,671 S.F.) x� (22,1,671-�S.F.) 1�1 lil- llll� _ '�l "I N, CONSTRAINED AREA = 0.0 ACRES (0 S.F.) d� '_1 0 11"OOGWOOD IN, 3 S311� "N N/F `10 �EAN COLLINS AND -',KATHERINE D. BROWNE COLLINS 00 N U. PLAT`BOOK 232:77-78 ;p, Q u') \DEED BOOK 52505:300 0 0 U) GENERAL NOTES: 1 TOPOGRAPHY SHOWN HEREON TAKEN FROM FULTON COUNTY TOPOGRAPHIC MAP # 2449-04 AND 2459-03. 2. CONTOUR INTERVAL = 5 FEET. q\ 3. THIS TOPOGRAPHY WAS NOT FIELD VERIFIED BY v\ BRUMBELOW-REESE & ASSOCIATES, INC. \% SURVEY NOTES: • 28" POPLA� 1. THIS TRADABLE DEVELOPMENT RIGHTS EXHIBIT REPRESENTS LOT 1 OF THE FINAL EXEMPTION PLAT FOR KRIS NASH, WANDA NASH, AND CAMPBELL B. FETZER AS RECORDED IN PLAT BOOK 232 PAGES 77-78, PREVIOUSLY SURVEYED BY BRUMBELOW-REESE & ASSOCIATES, INC. ONLY FIELD LOCATED TREES OF INTEREST HAS BEEN DONE. THIS EXHIBIT WAS PREPARED FROM LIMITED DEED RESEARCH. ALL MATTERS OF TITLE ARE EXCEPTED. 2. THE BEARINGS SHOWN HEREON ARE REFERENCED TO GRID NORTH - WEST ZONE, AND WERE CALCULATED FROM ANGLES TURNED IN THE FIELD. LINE TABLE LINE # DIRECTION LENGTH LI N 47039'47" E 97.54' L2 N 47049'37" E 99-08' L3 N 44047'23" E 45.84' F7T4 771 N 89052'29" w =1 THE FIELD DATA UPON WHICH THIS PLAT IS BASED HAS A CLOSURE PRECISION OF ONE FOOT IN 23,146 FEET AND AN ANGULAR ERROR OF 09 SECONDS PER ANGLE POINT AND WAS ADJUSTED USING LEAST SQUARES. THIS PLAT HAS BEEN CALCULATED FOR CLOSURE AND IS FOUND TO BE ACCURATE WITHIN ONE FOOT IN 318,199 FEET. EQUIPMENT USED FOR MEASUREMENTS: LEICA TS02PLUS - TOTAL STATION THIS (PROPERTY), . (IS NOT) LOCATED WITHIN THE 100 -YEAR FLOOD AREA PER OFFICIAL FLOOD INSURANCE RATE MAPS. PANEL NO. 13121CO052 F AS DATED/REVISED: SEPTEMBER 18, 2013 NO NATIONAL GEODETIC SURVEY MONUMENT WAS FOUND WITHIN 500' OF THIS PROPERTY. x 0 w I (L a. D. L—. 9-8- -6- (L -C-9-85--) 0. THE DISTANCES SHOWNHEREON Pilt-u- GROUND MEASUREMENTS. 4. SUBJECT PROPERTY DEED(S): ------- RECENTLY FILED, RECORDING INFORMATION NOT YET AVAILABLE. LAND LOT LINE N 890 52'29" W 5. SURVEY REFERENCE( : 1,69.33, 177.84' 46.1.78- A. FINAL EXEMPTION FOR KRIS NASH, WANDA NASH, AND 04'48" W' N 890 40'33" W Le CAMPBELL 6 FETZER BY BRUMBELOW-REESE & ASSOCIATES I I N/F ------) INC. DATED APRIL 2, 1999, AS LAST REVISED 6-5-2002, AND I.P.F. I.P.F. "MARK KING" I.P. L.L. 1031 L.L. 1032) RECORDED IN PLAT BOOK 232, PAGES 77-78, FULTON COUNTY 1/2" R/B 3/4" C/T PLAT BOOK 363:89-91 1„ Of RECORDS. 6. TAX PARCEL I.D. - 22 446009860502 7. OWNER: ROBERT A. BRANNON 8. EXHIBIT AUTHORIZED BY ROBERT A. BRANNON 9. DATE OF FIELD SURVEY: APRIL 2, 1999, AS LAST REVISED 6-5-2002, AND DECEMBER 21, 2015 (TREE LOCATION ONLY). 10. DATE OF EXHIBIT PREPARATION: JANUARY 6, 2016. FROM SOUTHWEST PROPERTY CORNER TO G.I.S. MON. F9853 S 340 4426"W 3382.82' FROM G.I.S. MON. F9853 TO AZIMUTH MON. F312 S 000 58'48" W 1944.97' DEED BOOK 52242:96 GRAPHIC SCALE 60 0 30 60 120 ( IN FEET ) 1 inch = 60 ft. REF: #99059, 2002-002A 240 I 1 W Z 0 z w N W Z z or) I oal r, - >< W Ll U) < < 0 Co Lo (00) 0 @ m (D (D CK0 CD 1-- rl- .. Lo 6I-- 0 Z Lo wo ( w W 0 z U) (1) < ce) o -r u- Or- 00 Z W Z 0 z w N F- F - w 00 LL 1�- w . z 0 Z 0 < >< W Ll 00 w :D z cr) EL z 2 C114 u- < 0C d 2 o w 0 C) 0 LL CL _j 0 uj �— u) 0 < rnt 0 F- 0 < Z CL 0 U) NG:BETHBRAN-1 uj w w Z Wz !7) LL 0 Z 0U) (-) W L0 z w W T_ OOD 04C:) 0 w CL 0 Cd 111 Z Lu w 0 P _j > Ill Co U) 0 Z _j 0 ry w 111 0 UL 0 1 w0 Co LL w 1 Lo (o b , Y)— 0 C) w U) �t co X 5; w 9 F- W FIELD BY: SDR, W7H DRAWN BY: RF MK NG:BETHBRAN-1 oomo� awpwK z-1 �:E ;u m�nn�Z anx� c CMMCOxm�yD. zo=m S x000m T a A' \\ ��Sz A mDm�Amm� tnzoTin C(nzcv�l ❑ O mm mm TASIZn?IGomwpZ_�m0 m V 0n-'iS1 �-�ZO 00 D V A n n OBD mm �S1>0 D w'A m Do3mD 0 mmcc<o Z gyY��1�4 d XT Cmm.�0 .0"OD mmmm T32 ZmZ Lu zmm D 5OTOTD p0'0 "o "!' �JX 2 � i�r OO�mXmOSlmn�wGlD XSl�mzm m <e G'12 TS � f 1 \ ' n ao Oho-oomm AOm-imm�w�jnmOm�m� ADm '0 -< I■ ` SQ. Tpm�oxwN Zv!�n'-m m-om oA m A �m in m m.. m<DDO� .,f, •\•�.� ����Y++ mGpOA rrNilOmm{ opm*omoOTmKA m* TmmOA D NZU1 -^'o �' SID• Km-7v W II z Dj<S7 mm m z -1 AD oo w-X Tm ZSSI m �Om-10 Dfnil inn= �} ar I G ��Owm p<o ao� �O m p�y0 �`LAZ3 ��M>;o I OmmOin �DmO m.. m �pm0 p2 -1S1 z nT. #z f t, �ry vv ZNAmo ww;D o O mom xSID� D- 2 `� �� a8>m > N' cx D DSD[om mDOTn LTj�O m� � T mm� w oS mfOpD ��mw m nAG� Amo�� zm gZ Q /�, :. ■/� \ 1 F W D D• m xm Z S C m m O m m m x w n T D W>.'56 r Z �ymSylI oo G � w .0,_ >'m mIiI z --/1 X ZFn O A ANOZ Twp N mm2M DoZZ2 m�zZ cmm: O ozmo SI0TDF Nop O omD mn�� ims=� < .°c ! t\ f r/ Ort rr rr'\ •~ 3 R, z 0q�mz mom m �. m u G Oz`�''a> ; K>oAm =mzm �o�- 0 n>z a norm �wozm z a1'SAvy° %f !! i f! — •�� c- MWo a: o wXNa ncN>m Nazo' z mo m <„,zz _. 1 I ' ■ /! �L \ 40� o {oDz o w D Am Ttniiw o r , , o Z � r / a �• _ r / it \ '� � 1 \ O o 1i IG^ 1 1 1 1 v.. a rsir I� f� � Y �r r' rf` � fr fr �, + ■ ., ,1. \ ' z A I r 1 Y ! f I ! ff \ �■ ■ 1 n � H � m � FY\ �`\t ~, �� � rr rrf r✓ I` 1 � \\ rl \ 1■ �. ]' m x ', ■ , 1a z 1 o � F f h` tet.- fr r' % ++ I rl�l �■1 11 � .7X�' � T �� ���� ff � • r f 1. i z 1' 1LLJ SDO'47'9$7W / .y .vz ff ff r--•\ 1 11 V °m zl L 1L' o -8-6 o- l I rrJ � � frf �m l a 9 II 11 f mm<m �_� 1 m �nn`9"c �-�? r r rl I 1 I OZT }o�~z 1\. g oam n z f .Im m w zr anzofl 8wx 0 ' Noz p xu vmi Nz CD 0 # •k o �� a. N'2➢ CD A u v pr^ mr) m A N O '� 2 0 0 F3 ZZ z Z O 07 TOT V V Z D)ol N b m m Q ©ZO aN Or to (.4 o9 C] z gIo� 0 1� m m m z m e O N p b , 1 (� > b m r % I y N I C D o p (p O m Zm d �o� I Z Y �n�Mm 0 cn G mi sm •� C C -' M c- aox. L.�L, o x'axv� < m nF m aCx z� �o < cn c-) m y Aoc9 m p - C7 ;Q 7 amn D 2 0 p _ TRADABLE DEVELOPMENT RIGHTS LOT 1 OF FINAL EXEMPTION qqq,��� ��� m m r EXHIBIT FOR PLAT FOR KRIS NASH, WAiJDA O R C U>ry-+ LOW-REESE AND ASSOC., INC. ?! p ti Isrr+v / I L ND SURVEYORS, LAND PLANNERS, x z m NASH, CAMPBELL B. FETZER �� F o m { ROBERT BRANNON P.B. 232; PG:78 e Q DEVELOPMENT CONSULTANTS c� m :S % 20 [GEORGIA LICENSE LSF0002851 m-i S T -I � z LOCATED IN: p r e _ -❑ �h {� O 13685 HIGHWAY 9 N LAND LOT(S): 986 Ys �' MILTON, GEORGIA 30004-3616 a x DISTRICT: 2, SECTION:2 a x CITY OF: MILTON PHONE: 770-475-6817 COUNTY OF: FULTON EORGIA R.L.S. R. FAX: 770-569-4948 DATE: DECEMBER 8, 2015 STATE OF GEORGIA MBER 00 S.A.M.S. EMAIL: BRASSINC@COMCAST"NET CITY OF MILTON COMMUNITY DEVELOPMENT APPLICATION TRANSFER OF DEVELOPMENT RIGHTS OPEN SPACE SENDING SITE LANDOWNER INFORMATION Name Mailing City and State . Zip Code 3Q or Phone: `�G`� 0-7 - OGO-3 Alternate Phone: 90`1 7(o -,S2-�U Email r ra, n n ca r\ LO) 0 c �� Are you the only owner or do others also have an ownership interest in the property to be considered as a sending site for the Transfer of Development Rights Program? All Part If part, please describe: If part, do you have authorization to represent other interest holders? Please attach all Letters of Authorization. Primary contact person and/or agent if different than landowner(s): Name: Email Phone : Alternate Phone: II. PROPERTY INFORMATION Tax Parcel Number(s): Attach a legal description(s) of each parcel number. I Property Address(es) or Nearest Street or Road: L an I Total Acreage of Property- q Total Constrained Acreage (lakes, streams, wetlands, buffers, landfills, etc.): Total Unconstrained Acreage: 5'0 Page 1 Are there any existing dwelling units located on thero ert ? Yes V No P p Y If yes, how many? ! Are there any other structures on the property? Yes I No If yes, how many?, Please provide a brief description of all site structures: Please attach labeled pictures illustrating the existing buildings and general property. Label all buildings on the site plan (including the date the photograph was taken). List the current zoning of the property (e.g. AG -1, R-1, R-2, etc.): Describe how the property is currently being used (e.g. agriculture, forestry, home site, etc.): R. C. - Are Are there any existing easements or deed restrictions affecting this property? (e.g. power line co access easements, mining rights, etc.) Yes No If so, please describe briefly: Does the property have any year-ro;wri-submerged lands such as lakes, rivers, streams, or ponds? Yes No III. STATEMENT OF INTENT: I want to retain (number) dwelling units or development rights with the property for existing or future development. I intend to maintain the property in private ownership. Page 2 IV. SENDING SITE CRITERIA: Describe your property's natural and/or agricultural features and explain how their retention would implement the City's goals for maintaining significant environmental areas, rural character and open space: C1I 0 ;„e. V. Applicant must submit written evidence of consent from all lienholders to severance and transfer of development rights as well as to execution of the required Conservation Easement associated with issuance of the TDRs. VI. TITLE COMPANY INFORMATION A title report must be supplied by the landowner as part of the TDR application. The title report shall be submitted in either hard copy or on,a,disk in PDF format. Name of Title Company Address City and State „h�,s, i �, ►ri ZIP Code Date of submitted Title Report I — III. MORTGAGE COMPANY/LIEN HOLDER INFORMATION Are there any liens or mortgages on the property? Yes No Mortgage Company/Lien Holder's Name Addres City and State_ Mortgage Company/Lien Holder's Name Address City and State: Zip Code Zip Code: (Additional Mortgage Companies/Lien Holders must be listed on a separate attachment) Page 3 RETURN TO: City of Milton Community Development Milton City Hall 13000 Deerfield Parkway Suite 107 Milton, GA 30004 Phone: 678.242.2500 Fax: 678.242.2499 E-mail: infoC0cityofmiltonga.us For questions, please contact: Kathleen Field Community Development Director 678-242-2555 VIII. PROPERTY OWNER CERTIFICATION FOR CITY USE ONLY: Date Received Completed Application Date I hereby certify that the information furnished on this application and the attachments are true, that I am legal owner of the property described above and have authority to make this application on behalf of all other owners (if any), that we have marketable title to the property, and that I have the legal right to restrict the use of the property. I grant permission to the City of Milton to seek an update from the Title Company prior the City's issuance of a Transfer of Development Right Certificate. I acknowledge that the Community Development Director may reject this application prior to the issuance of TDRs if any of the information is deemed to be incorrect or deceptive and may require additional information beyond that described herein if necessary to determine whether or not the property qualifies as a sending site or how many TDRs the property w e e�to. /1 1 0 _L)_L)J I - Signature of Owner (Applicant) Date Signature of Co -Owner (Co -Applicant) Page 5 Date $-4 141:1 lb# 2� 110 5 73.29 1 3i, 130 Rd 406-2 7-.5 2.2 - 13225 CTI fid O a 1==31_i 13240 13195 v 4Ln 1Aw r h 59 5- h 145ry necessarily accurate to surveying or engineering standards. Fu/ton County, Georgia Fulton County assumes no responsibility for losses resulting from the use these data, even if Fulton County is advised of the possibility ofsuch losses. 7-.5 2.2 - 13225 CTI fid O a 1==31_i 13240 13195 v 4Ln 1Aw r 1 1' 44'.I 444.7 r 218.34\:L .3 33 IJ.i 5 183.3 X10.7 476.6 3 45- 18 1601.2 290.0 750-7 �9$0 455.0 255.0 1+5-0 320.0'7 M °0 N r+ a r w •y� kD N ✓ �, ri 108 — Nl � L(' 100 200ft Fulton County provides the data on this map for your 59 5- ? '8 ,5 2 3 ft. 9 145ry necessarily accurate to surveying or engineering standards. Fu/ton County, Georgia Fulton County assumes no responsibility for losses resulting from the use these data, even if Fulton County is advised of the possibility ofsuch losses. 32i.d :J N. 13 2':� 5 Ln c 135 .4113285 13275 0_ r? �$� t+ $ ' ^ 1_275 4 y 3 5�%A 1P IAP 3269 + , 13285 132i_,8 4>0 ���-1 ee o LI) LAL in 13265 a 7 a 1, n n N 1`1 � 39 �'. q 5.938 I', m S 1 3-265 Ai i3 '. LM 6.892 C •r �` CO LI r 171.7 m b n 4 6S •+ h ~ 11 { 3 ny G rs N r� a 13275 o m 1 1' 44'.I 444.7 r 218.34\:L .3 33 IJ.i 5 183.3 X10.7 476.6 3 45- 18 1601.2 290.0 750-7 �9$0 455.0 255.0 1+5-0 320.0'7 M °0 N r+ a r w •y� kD N ✓ �, ri 108 — Nl � L(' 100 200ft Fulton County provides the data on this map for your 13265 Bethany Road personal use ris". The data are not guaranteed to be accurate, correct, or complete. The feature locations depicted in these maps are approximate and are not 10 necessarily accurate to surveying or engineering standards. Fu/ton County, Georgia Fulton County assumes no responsibility for losses resulting from the use these data, even if Fulton County is advised of the possibility ofsuch losses. 13295ILY ' > �yx�� 13" . 135 3259 3 'i.l 1 s �F451 1 'r �g,�'� 13255 = 'a _ '�� _ ��� � •�. � - .. h 1.3255 _ O �i,�-3�► Fulton County provides the data on this map for your 13265 Bethany Road 6.6 9 2 J depictedin these maps are approximate and are not C, ca Fu/ton County, Georgia Fulton County assumes no responsibility for losses resulting from the use these data, even if Fulton County is advised of the possibility ofsuch losses. 13245 h 13225 3297 ~ 13275 h Y Ilk 1 lir'1 +� Rilii.,' Il19..3� -13Y 51'183.3 °J147 F7fi In ' fM^l 3+x.11 1 ::C1.' r '. d, I i n' : �P 354 7 88Q 455.0 156.0 g 0.0.) v 2 94] 0, i.� � Y i � •''jf A 1 � 'h511 ti �- ( A ��r I F1 Jill AM ji T Fulton County provides the data on this map for your 13265 Bethany Road personal use ris". The data are not guaranteed to be accurate, correct, or complete. The feature locations depictedin these maps are approximate and are not necessarily accurate to surveying or engineering standards. Fu/ton County, Georgia Fulton County assumes no responsibility for losses resulting from the use these data, even if Fulton County is advised of the possibility ofsuch losses. w HOME OF ' ESTABLISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: January 21, 2016 FROM: City Manager AGENDA ITEM: Consideration of an Application for the Abandonment of a Portion of Congaree Court. MEETING DATE: Monday, February 1, 2016 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: � APPROVED (J NOT APPROVED CITY ATTORNEY APPROVAL REQUIRED: (J YES NO CITY ATTORNEY REVIEW REQUIRED: (J YES I�NO APPROVAL BY CITY ATTORNEY () APPROVED (J NOT APPROVED PLACED ON AGENDA FOR: b Z d q0 REMARKS ly� KI Youj PHONE: 678.242.2500 1 FAX: 678.242.2499 r"+E' *l rniflyd * T°P 10U infoftityofmiltonga.us I wwwxityofmiltonga.us W11MAEE Community iern; ,� r �,� 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 To: Honorable Mayor and City Council Members From: Carter Lucas, PE – Director of Public Works Date: Submitted on January 12, 2016 for the February 1, 2016 Regular Council Meeting Agenda Item: Consideration of an Application for the Abandonment of a Portion of Congaree Court. ______________________________________________________________________________ Department Recommendation: Accept for further review. Executive Summary: Congaree Court is a cul de sac street located in the Lake Haven Subdivision off of Freemanville Road. The applicant is requesting the abandonment of a 0.193 acre portion of Congaree Court that would have provided connectivity to an additional phase of the Lake Haven subdivision to the south; however, that property was subdivided in 1979 as the Bryanridge subdivision. The Lake Haven Subdivision Bryanridge Subdivision Right of Way Privatization-Abandonment Page 2 of 2 applicant is intending to use the property to provide access to a proposed 1 acre lot that would be subdivided from an existing lot in the Bryanridge subdivision. Under the current privatization ordinance each application received to abandon or privatize any right-of-way must first receive an initial hearing before the Mayor and City Council to determine whether or not to accept the application for processing. At this meeting the Mayor and City Council may decide to accept the application or deny the application without further discussion. Acceptance of the application by the council does not constitute final approval of the application or the abandonment of the public road or right-of-way, or any portion thereof, it merely allows the application to proceed through the process. At this stage staff has not made a determination of the merits of the application only that it meets the minimum requirements to begin the evaluation. It should be noted that the abandonment of a road or right of way requires that the City Council make a finding of one of the following with respect to the roadway in question: 1. That no substantial public purpose is served by it; or, 2. That its removal from the municipal street system is in the best public interest. If the Mayor and City Council approve the application to move forward it shall be the responsibility of the applicant to prove to the satisfaction of the city that one of these conditions has been met. The supporting information provided by the applicant will be made availa ble for the Mayor and Council to review prior to the initial public hearing. Funding and Fiscal Impact: N/A Alternatives: Deny the acceptance of the application and maintain the right-of-way as necessary. Legal Review: N/A Concurrent Review: N/A Attachment(s): Application h .� City of Milton Public Works Department 13000 Deerfield Parkway Phone (678) 242-2500 Suite 107G Milton., Georgia 30004 Application to Abandon a Public Right -of -Way This Application must be filed by a person having the authority to act on behalf of the community. Where a Home Owner Association (HOA) is required by Chapter 48 of the City of Milton Code of ordinances to file the application, it must be submitted by a member of the board authorized to act on behalf of the HOA. Where an HOA is not required by said ordinance to file, the application must be made by a person authorized to act on behalf of the petitioning organization. Section 1: Contact Information Applicant Name: S6YA -. C ok e— (Nome of HOA or Individual) Name: J az3 q. cc) 1e- Phone Number: U1� - Li\-QT)-1L�-1'7 Position: Address: on A 0'a e - NIS 1 A 3Do9 Section 2: Right -of -Way Information This application is submitted for (check one): Right -of -Way Name or Subdivision Name: Layle Width of Existing Right -of -Way: = 00 Email: OJO 19- 1 C 07 e @ hO'TPnQ; � - CC) 11'x N Abandonment a\j� Lineal Feet (measured along the centerline) to be Vacated: 112. 2L� Section 3: Reason for Abandonment ❑ Privatization This request for abandonment is being made based on a determination of the following (check one): L'1 That no substantial public purpose is served by the right-of-way; ❑ That the removal of the right-of-way from the municipal street system is in the best public interest. a. Please indicate the purpose for which the right-of-way is to be vacated: 7c;� acct ons acr� arcet beh,'+�d rfi. b. How is the right-of-way currently being used? of Milton Public Works Department 13000 Deerfield Parkway Phone (678) 242-2500 Suite ING Milton, Georgia 30004 c. How many adjacent property owners will be affected by this request? h ire �rcnct Lochma+n �clu,,a� k �v►� Very L, —frh d. How does the property owner propose to use the right-of-way if abandoned? Q6\4L d -3C e. Are there any public utilities or infrastructure currently located within the right-of-way? Check all that apply: ❑ Cable Television ❑ Electric ❑ Gas ❑ Sanitary Sewer ❑ Stormwater ❑ Telephone ❑ Water ❑ Other, please describe: Section 4: Attachments and Exhibits • Plat of the existing subdivision. If the right-of-way is not located in a platted subdivision then a map or survey should be provided with sufficient detail to demonstrate the location and nature of the right-of- way. Where a subdivision plat is not required, a list of all affected property owners shall be provided. Section 5: Signature of the Applicant The following signature signifies that all of the information provided on this application is accurate and correct to the best of the applicant's knowledge; and that the applicant has thoroughly read and understands all of the application requirements. In addition, the applicant further certifies that they understand that it shall be the responsibility of the applicant to demonstrate compliance with the above conditions. The applicant is required to submit all necessary supporting documentation to establish the factual basis on which this request is made. Any, and all, cos s a ociat d wi providing this information is the sole responsibility of the applicant. X I • �p - ZD SLP (Signature) (Date) (Printed Name) IN, ,DDEU M,ldN��.° N5r0lSUVOSf1S �(VM0770H EW) 5D-csD 4""s Wean—Ne id� �% N01SWCgf1S N-7AVH 3NV7 mso-so w w g4g_��gV W$W ❑boos® ®g, e�4a 3�Y ri�� SVA 1 I I 5 i g 13� 4 '— ------------ o s w b ®Pin I� ffi Y } wl I �� I 1� \•� i Fy3°d a -r vR �Y_YL'LLI AIdO.LG.045 _ 39 yam. • �k 35 s['L 11+4 �p3 mle -$isv -1 �' ul 3,.{0(F11.[30N gffix V ----------- r--j i 3�Y ri�� SVA 1 I I 5 i Deed Book 45974 Pg 80 Filed and Recorded Nov -14-2007 01:4apa 2007-0318086 Real Estate Transfer Tax $0.00 Cathelene Robinson Right of Way Deed Clerk of Superior Court Fulton County, Georgia This indenture, made this 7-5=-"�-day of dcjd 20,77 between the undersigned 1Axy&(/Z0tL& 5 I- , party of the second part. as party of the first park, and Millon, Georgia, Witnesseth: That for and in consideration of the sum of ONE DOLLAR ($1.00) and other good and valuable consideration in hand paid and the project hereinafter described, party of the first part do grant and convey unto party of the second part, its successors and assigns, the following property to -wit: That tract of land lying and being in Land Lot � of the 2 "District of Milton, Georgia, as described in Deed Book Zl/ 7'/, Page 2� Z and more particularly described as follows: It is the intent of the parties that Milton, Georgia, shall have a total Right of Way width of aJ4 feet with a total take of _ __ Jql,g sq ft for the purpose of road improvements. Grantor further grants to Milton, Georgia, the right to grade, till, landscape, or slope for drainage, such private property adjoining this right of way, as may be necessary for the construction and maintenance of said road, and the City of Milton agrees to provide the material and labor replacement costs for any fence that may become necessary to the City Council of Milton to move in conjunction with a road improvement project involving this right of way. Any material or labor relocation expenses incurred due to waterline construction will be the responsibility of City of Atlanta Water and Sewerage Authority. To have and to hold the bargained premises unto grantee, its successors and assigns forever in fee simple. Party of the first part will forever warranty and defend the title to the bargained premises unto party of the second party, its successors and assigns against the claims of the persons whomsoever. In witness whereof, parties of the first part has (have) hereunto set its/his/her/their hand(s) and seal(s) the day and year above written. t Grantor (SEAL) Signed, reale elivered ' e pre a of: U i ness Notary PubILG•.:` Y � 'A M Ci)AnA& n jeer•' "��_�..� �4. ,. Public, Fulton County, Georgia iissinn Explres December S, 201 o 51 SMIXO'A 11"* Deed Book 45974 Pg 81 Cathelene Robinson Clerk of Superior Court Fulton County, Georgia Future 50' Access Easement Description Lake haven Subdivision All that tract or parcel of land lying and being in Land Lot 788 of the 2°" District, 2"d Section, City of Milton, Fulton County, Georgia and being more particularly described as follows: To find the POINT OF BEGINNING, commence at a %2" rebar found at the corner common to Land Lots 957, 958, 987-& 988; thence, from said corner running along the line common to Land Lots 987 & 988 South 0I°09'08" West, 496.89 feet to a I" Open top pipe found marking the Southeast corner of said subdivision; thence, North 889 1' 16" West, 944.13 feet to a I %2" open top pipe found; thence, North 88°54'21" West, 353.98 feet to a point and being the True Point of Beginning. Thence, from Said POINT OF BEGINNING running North 00°37'07" East, 171.82 feet to a point; thence, 51.57 feet along the are of a curve, deflecting to the Ieft, having a radius of 60.00 feet and a chord bearing and distance of South 89022'53" East, 50.00 feet to a point; thence, South 00037'07" West, 172.24 feet to a point; thence, North 88°54'21" West, 50.00 feet to to the POINT OF BEGINNING. Containing approximately 8,418 square feet or 0.193 acres of land more or less. Property is subject to all easements and rights of way, recorded and unrecorded. !�0 RSTE No. 2860 2 9TA�CK la HOME OF ' ESTABLISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: January 28, 2016 FROM: City Manager AGENDA ITEM: Consideration of a Construction Management at Risk Agreement between the City of Milton and New South Construction, Inc. MEETING DATE: Monday, February 1, 2016 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: VAPPROVED () NOT APPROVED CITY ATTORNEY APPROVAL REQUIRED: AYES () NO CITY ATTORNEY REVIEW REQUIRED: YES () NO APPROVAL BY CITY ATTORNEY (APPROVED () NOT APPROVED PLACED ON AGENDA FOR: Z o 1 ) to REMARKS YouQ ' f teen" ."' ; * �* *; PHONE: 678.242.25001 FAX: 678.242.2499 L tY i, info@cityofmiltonga.us I www.cityofmiltonga.us WILDLIFECommunity kQEchics � 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 """"' �''U4 To: Honorable Mayor and City Council Members From: Carter Lucas, PE - Public Works Director Date: Submitted on January 28th 2016 for the February 1st 2016 Regular Council Meeting Agenda Item: Consideration of a Construction Management at Risk Agreement between the City of Milton and New South Construction, Inc. ______________________________________________________________________________ Department Recommendation: Approval. Executive Summary: The project is to provide construction management services for the new city hall project. In accordance with the city procurement procedures a Request for Proposals (RFP) was issued to identify a qualified vendor to provide these services and products. The city received 4 responses to the RFP and New South Construction, Inc. was selected by the committee. Staff is recommending approval of the Construction Management at Risk Agreement with New South Construction, Inc in an amount not to exceed $9,807,237.00. Funding and Fiscal Impact: Funding for this project is available in the City Hall construction budget. Alternatives: There are no alternatives to this project. Legal Review: Sam Van VanVolkenburgh – Jarrard & Davis (12-28-15) Concurrent Review: Chris Lagerbloom, City Manager Attachment(s): Construction Management at Risk Agreement Cover Section CONSTRUCTION MANAGEMENT AT RISK AGREEMENT (CM/GC) BETWEEN New South Construction Company, Inc. (the “CM/GC”) AND City of Milton, Georgia (the “OWNER”) FOR PROJECT NO. 15-PW02 INCLUDES: Executive Summary of Contents Preface Basic Tenets of Contract Preface CM/GC Form of Contract Contract 1 to Contract 7 Table of Contents Pages i to vi General Requirements Pages 1 to 116 Forms Forms 1 to Forms 16 Exhibits A-i to P Executive Summary Preface PREFACE EXECUTIVE SUMMARY Basic Tenets of the Contract This Contract implements the “construction management at risk” or “CM/GC” Project delivery method. The usual method of procurement is by solicitation of competitive sealed proposals, although other procurement methods may be utilized, as permitted by law. The CM/GC is under contract to supply both preconstruction services and construction services to complete the Project and place the Owner in occupancy of the Project in a “turnkey” fashion. The Owner contracts with the Design Professional separately from the CM/GC using the Design Professional Contract. The design and construction progress in a coordinated fashion using one or more Component Change Orders to direct construction of a Component package (such as Site work, foundations, etc.) while the design progresses toward complete Construction Documents. Once either a Guaranteed Maximum Price (GMP) or a Lump Sum Price is agreed upon between the Owner and the CM/GC, the CM/GC is “at risk” for Project price, Project schedule, and completion of all construction as set forth in the Contract Documents. The CM/GC holds all trade contracts and trade Supplier contracts. The pricing and financial structure for this CM/GC Contract is the “cost-plus” method, with a fixed dollar cap on the total price of the contract (the GMP), and certain other contingencies. The sole basis for the “plus” portion of the Contract is the CM/GC’s Fee, which is defined as the CM/GC’s “gross profit” as set forth in Section 4, Part 1, Compensation. The sole basis for “cost” throughout this Contract is Actual Cost, as defined in Section 4, Part 4. In addition to the GMP, there are total cost limitations imposed on Actual Costs allowed, both as to type of cost and allowable amounts. Actual Cost, Construction Overhead, and the agreed upon CM/GC’s Fee are the only basis for payments to the CM/GC under this Contract, unless a Lump Sum Price is agreed between the Owner and CM/GC. There is one contingency fund under the GMP. It is the “Construction Contingency,” which is subject to the terms of this Contract . The CM/GC’s Construction Contingency is eliminated if the Owner and CM/GC agree to a Lump Sum Price for the Project, upon which the CM/GC is paid a such lump sum amount for the Project. Executive Summary of Contents Preface EXECUTIVE SUMMARY OF CONTENTS CM/GC FORM OF AGREEMENT GENERAL REQUIREMENTS SECTION 1 – GENERAL Part 1 – General Provisions Part 2 – CM/GC’s General Responsibilities and Duties Part 3 – Owner’s Responsibilities and Rights Part 4 – Protection Of Persons And Property Part 5 – Bonds, Indemnity and Insurance Part 6 – Hazardous Conditions And Materials Part 7 – Miscellaneous Provisions SECTION 2 – PRECONSTRUCTION PHASE Part 1 – Preconstruction Phase Services Part 2 – Construction Documents and Site Plan Preconstruction services shall be governed by that Preconstruction Services Agreement between the parties dated the 30th day of April, 2015. SECTION 3 – CONSTRUCTION PHASE Part 1 – Construction Services Part 2 – Component Change Orders Part 3 – GMP Change Order Part 4 – Changes To The Work Part 5 – Time Part 6 – Correcting the Work; Inspections; Covering And Uncovering Work Part 7 – Trade Contractors; Self-Performance SECTION 4 – COMPENSATION Part 1 – General Part 2 – Payment For Preconstruction Phase Services Part 3 – Payment For Construction Phase Services Part 4 – Cost Of The Work Part 5 – Liens SECTION 5 – CONTRACT ADJUSTMENTS, DISPUTES, AND TERMINATION. Part 1 – Owner’s Right to Suspend the Work Part 2 – Contract Adjustments and Disputes Part 3 – Termination SECTION 6 – PROJECT COMPLETION Part 1 – Material Completion Part 2 – Final Completion Part 3 – Inspections for Completion of the Work Part 4 – Final Documents Part 5 – Payment for Material Completion and for Final Payment Part 6 – Correction of the Work after Final Completion SECTION 7 – CONTRACT FORMS Performance Bond Payment Bond Certificates of Compliance – Federal and State Work Authorization Programs Non-Collusion Affidavit Final Affidavit Five Year Bond on Roofs and Walls Specimen Certificate of Manufacturer Certificate of Insurance Executive Summary of Contents Preface Subcontractor Retainage Release Certificate Executive Summary of Contents Preface EXHIBITS Exhibit A Owner’s Program and Existing Documents Exhibit B [Intentionally Omitted] Exhibit C Budget Format Exhibit D Monthly Report Format Exhibit E CM/GC’s Proposal Exhibit F Preliminary Outline Schedule Exhibit G Specimen Component Change Order Exhibit H Specimen GMP Change Order Exhibit I Specimen Change Order Exhibit J Wage Rates and Labor Cost Exhibit K Application for Payment Exhibit L Final Cost Certification Exhibit M Certificate of Material Completion Exhibit N Certificate of Final Completion Exhibit O Project Documents Exhibit P Key Personnel CM/GC Form of Contract Contract - 1 CONSTRUCTION MANAGEMENT CONTRACT BETWEEN CM/GC AND OWNER THIS CONSTRUCTION MANAGEMENT AT RISK AGREEMENT (hereinafter the “Contract”) made this ___ day of ______, 20____ (hereinafter the “Effective Date”), by and between NEW SOUTH CONSTRUCTION COMPANY, INC., a Georgia corporation with an office at 1132 West Peachtree Street, Atlanta, Georgia 30309, (which shall perform the services of the CM/GC provided in this Contract and shall hereinafter be referred to as the “CM/GC”), and CITY OF MILTON, GEORGIA, a political subdivision of the State of Georgia, acting by and through its governing authority, the City of Milton City CouncilCity Council (hereinafter the “Owner”), collectively referred to as the “Parties”. WHEREAS, the Owner desires to employ a contractor to perform services for the construction of a Project, as defined below; and WHEREAS, the Owner solicited proposals for construction of the Project pursuant to City of Milton Request for Proposal, Project Number 15-PW02, dated January 12, 2015; and WHEREAS, the CM/GC submitted a complete and timely proposal and met all proposal requirements such that the Owner awarded Project Number 15-PW02 to the CM/GC; and WHEREAS, the Owner finds that specialized knowledge, skills, and training are necessary to perform the Work contemplated under this Contract; and WHEREAS, the CM/GC has represented that it is qualified by training and experience to perform the Work; and WHEREAS, based upon CM/GC’sproposal to perform the services of CM/GC related to the Project Number 15-PW02, the Owner has selected CM/GC as the successful proposer; and WHEREAS, CM/GC desires to perform the Work as set forth in this Contract under the terms and conditions provided in this Contract; and WHEREAS, the public interest will be served by this Contract. NOW THEREFORE, the CM/GC and the Owner, for and in consideration of the mutual promises set forth herein and other good and adequate consideration, the adequacy and sufficiency of which is hereby acknowledged by each party, do mutually agree as follows: PROJECT NO. 15-PW02 PROJECT NAME AND DESCRIPTION: Milton City Hall (hereinafter the “Project”). 1. Existing Documents. The Owner’s Program and Existing Documents, which the CM/GC has reviewed and taken into consideration in preparing his proposal for fees and general conditions, are set forth on Exhibit A. 2. Notice. Notice in accordance with Section 1.1.5 shall be given to the following addresses: CM/GC: New South Construction Company, Inc. 1132 West Peachtree Street Atlanta, Georgia 30309 Attention: Dave Butler Phone Number: 404 443-6410 OWNER: City of Milton, Georgia City of Milton City Council 13000 Deerfield Parkway, Suite 107F Milton, GA 30004Attention: City Manager Phone Number: 678 242-2500 CM/GC Form of Contract Contract - 2 DESIGN PROFESSIONAL: Cooper Carry 191 Peachtree Street NE, Suite 2400 Atlanta, Georgia 30303 Attention: Sean McLendon, AIA Phone Number: 404 237-2000 3. Owner’s Representative: All notices sent to the Owner at the above address shall also be sent to the Owner’s Representative. The Owner’s Representative for this Project shall be: OWNER’S REPRESENTATIVE: 13000 Deerfield Parkway, Suite 107F Milton, Georgia 30004 Attention: Robert Buscemi Phone Number: 678 242-2500 4. GMP Cost Limitation (Total CM/GC Contract Cost Limitation): The total amount paid under this Contract as compensation for Work performed and reimbursement for costs incurred, the Guaranteed Maximum Price, including but not limited to the CM/GC’s Fee, shall in no event exceed the following amount: 9,807,237.00 except as such amount may be amended pursuant to a Change Order, as described herein; provided that the GMP has not been established as of the Effective Date and will be established using a Change Order pursuant to this Contract. Such amount represents Owner’s maximum allowable amount for construction and the Designer shall produce a final design within such amount. 5. CM/GC Fee: a. Preconstruction Fee: The Preconstruction Fee component of the CM/GC Fee shall be the fixed amount stated in that Preconstruction Services Agreement between the parties dated the 30th day of April, 2015. a. Total CM/GC Fee: The Construction Fee shall the following fixed amount: 4.25% OF THE APPROVED GMP 6. CM/GC Overhead Costs and Expenses: The amount allowable for the CM/GC’s Overhead Costs and Expenses shall be the following fixed amount: $378,935 and the daily rate for Time Dependent Overhead Costs for adjustment of the above amount is: $1,600 per day 7. a. The Material Completion Date is January 13, 2017, or as otherwise modified in accordance herewith. b. The Final Completion Date is thirty (30) days after the Material Completion Date. 8. The agreed daily amount for Liquidated Damages is $_556.00 per day. 9. Scope Of Basic Services And The Work. The CM/GC shall perform all of the Basic Services and furnish all of the materials and perform all of the Work described in the Contract Documents and shall do everything required by the Contract Documents, unless the Contract Documents specify that the relevant portion of the Work shall be completed by another entity. CM/GC Form of Contract Contract - 3 10. Schedule And Completion. The Work to be performed under the Contract Documents shall be commenced upon execution of this Contract and shall be completed in accordance with the approved Overall Project Schedule not later than 30 days after the Material Completion Dateset forth above. The parties agree and acknowledge that the Preconstruction Services Agreement controls the start date and timing of preconstruction services. 11. The Guaranteed Maximum Price (GMP). A GMP will be established in accordance with Section 3, Part 3 of the General Requirements. The GMP may be replaced by a Lump Sum Price as set forth in Article 3.3.6 of the General Requirements. 12. Payments. Payments on account of the Contract shall be made in accordance with Section 4 of the General Requirements. The Payment for Final Completion shall be made by a check payable jointly to the CM/GC and Surety and shall be mailed to the Surety. 13. Final Payment. Final payment will be made in accordance with Section 6, Part 5 of the General Requirements, provided that all other requirements of the Contract Documents shall have been met in full. 14. The Contract Documents. The Contract Documents include this executed Contract, any Component Construction Documents, the Construction Documents, and all Change Orders as defined in the General Requirements. (See Article 1.1.9). 15. Surety Bonds. The CM/GC shall furnish both a performance bond and a payment bond specified in the General Requirements and shall pay the premiums thereon as a Cost of the Work. The performance bond shall guarantee the full performance of the Contract and Contract Documents. 16. Full Performance. The Owner and the CM/GC hereby agree to all the requirements, conditions and stipulations contained in the Contract Documents, and the CM/GC hereby agrees to fully perform the Basic Services and the Work described herein and in the Contract Documents. 17. Applicable Law. This Contract and all rights, privileges and responsibilities shall be interpreted and construed according to the laws of the State of Georgia. 18. No Conflict Of Interest. The CM/GC covenants that it presently 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 Contract. The CM/GC further covenants that, in the performance of this Contract, no person having any such interest shall be employed or contracted with. 19. Authority to Contract. CM/GC covenants and declares that it has obtained all necessary approvals of its board of directors, stockholders, general partners, limited partners, or similar authorities to simultaneously execute and bind CM/GC to the terms of this Contract, if applicable. Ratification of this Contract by a majority of the City of Milton City Council shall be authority for the mayormayor to execute on behalf of the council but shall not preclude execution by the full council. 20. No Assignment. The CM/GC covenants and agrees not to assign or transfer any interest in, nor delegate any duties of this Contract, including but not limited to the proceeds of this Contract, without the prior express written consent of the Owner. As to any approved Subcontractors, the CM/GC shall be solely responsible for reimbursing them, and the Owner shall have no obligation to them. 21. No Waiver. No failure of the Owner at any time to require performance by the CM/GC of any provision hereof, or to enforce any right or power granted under this Contract, or insist upon strict compliance by CM/GC with this Contract, and no custom or practice of the Owner at variance with the terms and conditions of this Contract shall constitute a general waiver of any future breach or default or affect the right of the Owner to demand exact and strict compliance by the CM/GC with the terms and conditions of this Contract. 22. Severability. If any article(s), section(s), term(s) or provision(s) of this Contract, or any part thereof, or the application thereof to any person or circumstance shall be deemed invalid or unenforceable by a court of competent jurisdiction, the offending portion of the Contract should be severed, and the remainder of this Contract, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and shall remain in full force and effect to the extent possible as if this Contract had been executed with the invalid portion hereof eliminated, it being the intention of the parties that they would have executed the remaining portion of this Contract without including any such part, parts, or portions which may for any reason be hereafter declared invalid. 23. Full Agreement. The Contract Documents supersede all prior negotiations, discussion, statements, and agreements between Owner and CM/GC and constitute the full, complete, and entire agreement between Owner and CM/GC. There CM/GC Form of Contract Contract - 4 can be no changes to this Contract by oral means, nor by course of conduct of the parties, nor by custom of the trade. No changes to this Contract will be binding on either party hereto unless such change is properly authorized, in writing, in accordance with Section 3 of the General Requirements. 24. Sovereign Immunity. Nothing contained in this Contract shall be construed to be a waiver of the Owner’s sovereign immunity (except as otherwise required by law, including but not limited to G.A. CONST. art. I, § II, para. IX(c) related to breach of contract) or any individual’s qualified good faith or official immunities. 25. No Personal Liability. Nothing herein shall be construed as creating any individual or personal liability on the part of any Owner Party (defined in Article 1.1.9.47 of the General Requirements). No Owner Party shall be personally liable to the CM/GC or any successor in interest in the event of any default or breach by the Owner or for any amount which may become due to the CM/GC or successor or on any obligation under the terms of this Contract. The CM/GC agrees that its sole and exclusive remedy, claim, demand, or suit shall be directed and/or asserted only against the Owner and not against any Owner Party. [SIGNATURES ON FOLLOWING PAGE] CM/GC Form of Contract Contract - 5 IN WITNESS WHEREOF the parties hereto have executed this Contract the day and year first written above. CM/GC: NEW SOUTH CONSTRUCTION COMPANY, INC. By: ____________________________________ Print: __________________________________ Title: __________________________________ [CORPORATE SEAL] Attest: By: ______________________________________ Print: ____________________________________ Title: ____________________________________ (Corporate Secretary or Assistant Secretary) SIGNED, SEALED, AND DELIVERED In the presence of: ______________________________________ Witness _______________________________________ [NOTARY SEAL] Notary Public My Commission Expires: _______________________________________ OWNER: CITY OF MILTON, GEORGIA By: ______________________________________ Print: ____________________________________ Title: ____________________________________ [CITY SEAL] SIGNED, SEALED, AND DELIVERED In the presence of: ______________________________________ Witness _______________________________________ Notary Public [NOTARY SEAL] My Commission Expires: _______________________________________ CM/GC Form of Contract Contract - 6 Acknowledgment by Design Profession (also referred to as the “Architect”): Design Professional hereby acknowledges receipt of this Agreement, acknowledges that it has read this Agreement, and acknowledges that it understands the role of the Design Professional, as set forth herein. ____________________________________________ Design Professional (“Architect”) By: _____________________________________ Title ATTEST By: _____________________________________ Title Attachments: 1. General Requirements, Forms and Exhibits Table of Contents General Requirements i General Requirements GENERAL REQUIREMENTS CONTENTS SECTION 1 – GENERAL PART 1 – GENERAL 1.1.1 General Matters. 1.1.2 Project Team, Cooperation, Partnering. 1.1.3 Intentionally Omitted. 1.1.4 Third Party Beneficiary. 1.1.5 Notice. 1.1.6 Liquidated Damages. 1.1.7 Documents. 1.1.8 Defined Terms. 1.1.9 Basic Definitions. PART 2 – CM/GC’S GENERAL RESPONSIBILITIES AND DUTIES 1.2.1 General Responsibilities. 1.2.2 General Duties. 1.2.3 General Consultation Services. 1.2.4 Other Actions. 1.2.5 Existing Documents. 1.2.6 Duty to Give Notice to Owner. PART 3 – OWNER’S RESPONSIBILITIES AND RIGHTS 1.3.1 Owner’s Representative. 1.3.2 Design Professional. 1.3.3 Permits, Licenses, and Inspections. 1.3.4 Testing. 1.3.5 Owner’s Independent Consultants. 1.3.6 No Partial Occupancy. 1.3.7 Disqualification of Potential “Prequalified” Subcontractors. 1.3.8 Owner’s Right to Perform Work. PART 4 – PROTECTION OF PERSONS AND PROPERTY 1.4.1 Reasonable Precautions. 1.4.2 Duty to Protect Property. 1.4.3 Safety Precautions. 1.4.4 Emergencies. 1.4.5 Fire Protection. 1.4.6 Remedy Damages. 1.4.7 Written Programs. PART 5 – BONDS, INDEMNITY AND INSURANCE 1.5.1 Bonds. 1.5.2 Liability and Indemnification. 1.5.3 Insurance Requirements. PART 6 – HAZARDOUS CONDITIONS AND MATERIALS 1.6.1 Hazardous Materials. 1.6.2 Responsibility and Warranty of Trade Contractors, Suppliers and Subcontractors. 1.6.3 Hazardous Materials and Substances Used on the Job Site. 1.6.4 Hazardous Conditions. PART 7 – MISCELLANEOUS PROVISIONS. 1.7.1 Legal Compliance. 1.7.2 Surveys, Permits, and Regulations. 1.7.3 Open Records Act. 1.7.4 Use of Site. 1.7.5 [RESERVED] 1.7.6 Utilities. 1.7.7 Royalties and Patents. Table of Contents General Requirements ii General Requirements 1.7.8 Separate Contracts. 1.7.9 Records, Reports and Audits. 1.7.10 Employment of Georgia Citizens and Use of Georgia Products and Georgia Forest Products. 1.7.11 Interpretation of Contract Documents. 1.7.12 Counterparts. 1.7.13 Forms and Specimens. 1.7.14 Entire Contract. 1.7.15 Confidentiality. 1.7.16 Licenses, Certifications and Permits. 1.7.17 Key Personnel. 1.7.18 Ownership of Work. 1.7.19 Meetings. 1.7.20 Nondiscrimination. 1.7.21 Headings. 1.7.22 No Third Party Rights. 1.7.23 Successors and Assigns. SECTION 2 – PRECONSTRUCTION PHASE PART 1 – SUPPLEMENTAL PRECONSTRUCTION PHASE SERVICES 2.1.1 [RESERVED] 2.1.2 [RESERVED] 2.1.3 [RESERVED] 2.1.4 [RESERVED] 2.1.5 Scheduling Requirements. 2.1.6 [RESERVED] 2.1.7 [RESERVED] 2.1.8 [RESERVED] 2.1.9 [RESERVED]2.1.10 [RESERVED] 2.1.11 [RESERVED] 2.1.12 [RESERVED] PART 2 – CONSTRUCTION DOCUMENTS AND SITE PLAN 2.2.1 General Provisions Regarding Construction Documents. 2.2.2 Documents at the Project Site. 2.2.3 [RESERVED] 2.2.4 Special Situation – New Sole Source Designation. 2.2.5 [RESERVED] 2.2.6 Manufacturer’s Recommendations. 2.2.7 Site Plan. 2.2.8 Geological and Archaeological Specimens. SECTION 3 – CONSTRUCTION PHASE PART 1 – CONSTRUCTION SERVICES 3.1.1 Basic Construction Services. 3.1.2 Meetings and Schedule Updates. 3.1.3 Construction Budget. 3.1.4 Coordination of the Work. 3.1.5 Mobilization. 3.1.6 Duty to Commence. 3.1.7 Notice of Commencement. 3.1.8 Measurements and Dimensions. 3.1.9 Rain Water, Surface Water, and Back-up. 3.1.10 Dust Control. 3.1.11 Cutting, Patching and Fitting. 3.1.12 Space Conditions. 3.1.13 Cleaning. 3.1.14 Duty of CM/GC to Report Defects. 3.1.15 Duty of CM/GC to Report Conflicts. PART 2 – COMPONENT CHANGE ORDERS 3.2.1 Scope of Part. Table of Contents General Requirements iii General Requirements 3.2.2 Component Change Order Proposal. 3.2.3 Component Change Order Sum. 3.2.4 Unacceptable Proposals. 3.2.5 Time for Review. 3.2.6 Rejection. 3.2.7 Proceed Order for a Component. 3.2.8 Duty to Proceed. 3.2.9 Owner's Liability. 3.2.10 Completion Date. 3.2.11 Effect of GMP Change Order. 3.2.12 Cumulative Effect of Component Change Orders. 3.2.13 Pre-Commencement Obligations. PART 3 – GMP Change Order 3.3.1 Guaranteed Maximum Price Proposal. 3.3.2 Submittal of GMP Change Order. 3.3.3 Acceptance or Rejection of GMP Change Order. 3.3.4 Duty to Proceed. 3.3.5 Modification of GMP. 3.3.6 Replacement of GMP with Lump Sum Price. PART 4 – CHANGES TO THE WORK 3.4.1 Acknowledgement of Existing Physical Conditions. 3.4.2 Owner's Right to Make Changes. 3.4.3 Changes Forbidden without Consent of Owner. 3.4.4 Form and Execution of Change Orders. 3.4.5 All Cost and Time Impacts to be Included. 3.4.6 Changes in Contract Time. 3.4.7 Determining the Cost to Owner for Changes. 3.4.8 Overhead and Profit for Change Orders. 3.4.9 Allowable Costs for Changes in the Work. 3.4.10 Costs Not Allowable for Changes in the Work. 3.4.11 Change Order Formats. 3.4.12 Changes due to Subsurface or Other Unforeseen Conditions. 3.4.13 Compensable Rock. 3.4.14 Subcontractor Claims for Extended Overhead Costs. 3.4.15 Release of Claims. 3.4.16 Sole Source Designation for Change Order Work. 3.4.17 Effect of Change Order. PART 5 – TIME. 3.5.1 Time is of the Essence. 3.5.2 Competent Management of Time. 3.5.3 Contract Time. 3.5.4 Commencement, Prosecution, and Completion. 3.5.5 Construction Progress Schedule and Overall Progress Schedule. 3.5.6 Completion Date. 3.5.7 General Rule – No Damages for Delay, Extension of Time Sole Remedy. 3.5.8 Exception to General Rule – Compensable Delay. 3.5.9 Non-Compensable Delay. 3.5.10 Submission of Claims for Compensable Delay, Extending the Material or Final Completion Date. 3.5.11 Recovery of Schedule Delays. PART 6 – CORRECTING THE WORK; INSPECTIONS; COVERING AND UNCOVERING WORK 3.6.1 Duty to Promptly Correct Work. 3.6.2 Correcting the Work. 3.6.3 No Delay. 3.6.4 Inspection of Work. 3.6.5 Covering and Uncovering Work. 3.6.6 Inspection Does Not Relieve CM/GC. 3.6.7 Owner may Require Uncovering of Work. 3.6.8 Intentionally Omitted. Table of Contents General Requirements iv General Requirements 3.6.9 Effect of Notice of Non-Compliant Work. 3.6.10 Deductions for Uncorrected Work. PART 7 – TRADE CONTRACTORS; SELF-PERFORMANCE 3.7.1 Parties. 3.7.2 Selection. 3.7.3 Proposers Lists. 3.7.4 CM/GC Proposal Review. 3.7.5 Responsible Proposers. 3.7.6 Owner Rights. 3.7.7 CM/GC Award. 3.7.8 CM/GC Self-Performance. 3.7.9 Duty to Continue Work. 3.7.10 Alternative Price Terms. 3.7.11 CM/GC Supplied Equipment of Supplies. 3.7.12 No Conflict of Interests. 3.7.13 Fair Opportunity for Trade Contractors – Trade Packages. 3.7.14 Warranty of CM/GC. 3.7.15 CM/GC Responsible for Acts and Omissions of Trade Contractors, Materialmen, Suppliers, and Employees. 3.7.16 Relationship of CM/GC and Trade Contractors. 3.7.17 Assignment of Trade Contracts, Subcontracts. SECTION 4 – COMPENSATION PART 1 – GENERAL. 4.1.1 Authorized Compensation and Limitations. 4.1.2 Audit. 4.1.3 Limitation of Owner Liability. 4.1.4 Provision for Further Development of the Contract Documents. 4.1.5 Inclusion of Contingency Amounts in GMP. 4.1.6 CM/GC’s Compensation Prior to Acceptance of GMP. PART 2 – INTENTIONALLY OMITTED PART 3 - PAYMENT FOR CONSTRUCTION PHASE SERVICES 4.3.1 Basis of Compensation. 4.3.2 Submission of Applications for Payment. 4.3.3 Timing of Payments. 4.3.4 Payments Withheld. 4.3.5 Retainage. 4.3.6 Subcontractor’s Retainage Release. 4.3.7 Supplier’s Retainage Release. 4.3.8 CM/GC’s Warranty on Applications for Payment. 4.3.9 Special Provisions for Payments of CM/GC under a Component or GMP Change Order. 4.3.10 Applications for Payment. 4.3.11 Schedule of Values. 4.3.12 Representations of CM/GC. 4.3.13 Design Professional’s Certificate Not Acceptance of Work 4.3.14 Payment Not Acceptance of Work. 4.3.15 Payment for Change Order Work. 4.3.16 Payment Due. 4.3.17 Late Payment and Interest. PART 4 – COST OF THE WORK. 4.4.1 Definition. 4.4.2 Intentionally Omitted. 4.4.3 Construction Phase Services. 4.4.4 Limitations on the Cost of the Work. 4.4.5 Construction Contingency Costs. 4.4.6 Adjustments to Construction Contingency. 4.4.7 Release of Construction Contingency. 4.4.8 Final Disposition of Construction Contingency. 4.4.9 Owner Option. Table of Contents General Requirements v General Requirements 4.4.10 Discounts, Rebates, Etc. PART 5 – LIENS. 4.5.1 Public Property Not Subject to Lien. 4.5.2 Notice of Commencement. 4.5.3 Release of Liens. SECTION 5 – CONTRACT ADJUSTMENTS, DISPUTES, AND TERMINATION PART 1 – OWNER’S RIGHT TO SUSPEND THE WORK. 5.1.1 Owner’s Right to Suspend Work. 5.1.2 Owner’s Right to Stop Work. 5.1.3 Owner’s Rights Independent from Rights and Duty of the Design Professional. PART 2 – CONTRACT ADJUSTMENTS AND DISPUTES 5.2.1 General Provisions. 5.2.2 General Claims for Contract Adjustments and Disputes. 5.2.3 Dispute Resolution. PART 3 – TERMINATION 5.3.1 Owner’s Right to Terminate Contract Without Cause. 5.3.2 Owner’s Right to Declare Default and/or Terminate Contract for Cause. 5.3.3 CM/GC’s Right to Terminate. 5.3.4 Termination for Abandonment by CM/GC. 5.3.5 Notices of Termination. 5.3.6 Duties Upon Termination . 5.3.7 Cumulative Remedies. SECTION 6 – PROJECT COMPLETION. PART 1 – MATERIAL COMPLETION 6.1.1 – Prerequisites. 6.1.2 – Material Completion. PART 2 – FINAL COMPLETION 6.2.1 – Final Completion. 6.2.2 – Effect of Achieving Final Completion. 6.2.3 – Effect of Failure to Achieve Final Completion. PART 3 – INSPECTIONS FOR COMPLETION OF THE WORK 6.3.1 – General Responsibility of the CM/GC for Inspection. 6.3.2 – Notice of Readiness for Inspection for Material Completion. 6.3.3 – Conducting the Inspection for Material Completion. 6.3.4 – Certificate of Material Completion. 6.3.5 – Determination of Final Completion. 6.3.6 – Conducting the Interim Inspection for Punchlist Completion. 6.3.7 – Conducting the Inspection for Final Completion. 6.3.8 – Final Notice of Non-Compliant Work. 6.3.9 – Certificates of Occupancy. 6.3.10 – Notification of Owner of Site Visits by the CM/GC or Trade Contractors. PART 4 – FINAL DOCUMENTS 6.4.1 – Final Documents. 6.4.2 – Presentation of Final Documents. 6.4.3 – Keys. PART 5 – PAYMENT FOR MATERIAL COMPLETION AND FOR FINAL PAYMENT 6.5.1 – Payment for Material Completion. 6.5.2 – Application for Payment for Material Completion. 6.5.3 – Intentionally Omitted. 6.5.4 – Intentionally Omitted. 6.5.5 – Final Payment. 6.5.6 – Intentionally Omitted. 6.5.7 – Incomplete Work. Table of Contents General Requirements vi General Requirements 6.5.8 – No Substantial Completion. 6.5.9 – Final Completion of the Entire Project and Final Payment. 6.5.10 – Certification of CM/GC Before Final Payment. 6.5.11 – Payment. 6.5.12 – Conditional Certificate. 6.5.13 – Prerequisites to Payment. 6.5.14 – Disbursement of Retainage. 6.5.15 – Failure to Provide Release or Waiver. 6.5.16 – Acceptance of Final Payment by CM/GC. 6.5.17 – Continued Right to Audit. PART 6 – CORRECTION OF WORK AFTER FINAL PAYMENT 6.6.1 – Non-complying or Defective Work. 6.6.2 – Warranty and Guaranty. 6.6.3 – Warranty Complaint Item Procedure. SECTION 7 – CONTRACT FORMS Performance Bond Payment Bond Non-Collusion Affidavit Final Affidavit Five Year Bond on Roofs and Walls Specimen Certificate of Manufacturer Certificate of Insurance Subcontractor Retainage Release Certificate EXHIBITS Exhibit A Owner’s Program and Existing Documents Exhibit B [Intentionally Omitted] Exhibit C Budget Format Exhibit D Monthly Report Format Exhibit E CM/GC’s Fee Proposal Exhibit F Preliminary Outline Schedule Exhibit G Specimen Component Change Order Exhibit H Specimen GMP Change Order Exhibit I Specimen Change Order Exhibit J Wage Rates and Labor Cost Exhibit K Application for Payment Exhibit L Final Cost Certification Exhibit M Certificate of Material Completion Exhibit N Certificate of Final Completion Exhibit O [Intentionally Omitted] Exhibit P Key Personnel Section 1 – General Part 1 – General Provisions 1 General Requirements GENERAL REQUIREMENTS OF THE CONSTRUCTION MANAGEMENT CONTRACT SECTION 1 – GENERAL PART 1 – GENERAL PROVISIONS 1.1.1 General Matters. 1.1.1.1 This Contract and Affiliated Agreements – Requirement for Written Agreements. Affiliated Agreements are any agreement required by this Contract or deemed necessary, efficient, or expedient by CM/GC, between the CM/GC and any party other than the Owner. All Affiliated Agreements, including but not limited to any subsequent modifications, must be in writing, dated, and executed by the parties. Affiliated Agreements, including but not limited to financial arrangements with respect to this Project, must be promptly and fully disclosed to the Owner upon their execution or modification. The Affiliated Agreements shall be executed in conformance with the requirements in Section 3, Part 7. 1.1.1.2 Basic Statement of Owner Objectives. The Owner’s basic objectives are to develop Construction Documents based on the Documents listed in Exhibit A, which are incorporated herein by reference, so as to permit construction of the Project within the limits of the funds available to Owner for construction of the Project as established by the Owner (but in no event in excess of the GMP Cost Limitation set forth in Paragraph 4 of the Contract) and to construct the Project in accordance with the approved Construction Documents. The basic tenets of this Contract, which shall form the basis of interpretation of this Contract, are set forth in the Preface and incorporated by reference herein. 1.1.1.3 Project Team. To accomplish Owner’s objectives, Owner intends to employ a team concept in connection with the development of Construction Documents and construction of the Project. The basic roles and general responsibilities of team members are set forth in general terms below but are more fully set forth in the Architectural Contract with respect to the Design Professional and in this Contract with respect to the CM/GC. In no way shall CM/GC be governed by or its obligations and responsibilities governed by the Architectural Contract. 1.1.1.3.1 Relationship of Parties. The Owner and the CM/GC agree to proceed with the Project on the basis of trust, good faith, and fair dealing, to cooperate fully with each other and shall do all things reasonably necessary to perform this Contract in an economical and timely manner, including without limitation, consideration of design modifications and alternative materials or equipment, if considered necessary or convenient by the Owner. The CM/GC agrees to procure or furnish, as permitted by the laws of Georgia, all construction phase services as set forth herein. The Owner shall endeavor to promote harmony and cooperation among the Owner, Design Professional, CM/GC and other persons or entities employed by the Owner for the Project. 1.1.1.3.2 Design Professional. The Design Professional is retained in accordance with the Architectural Contract (i) for the design and preparation of Construction Documents that are necessary to implement the Program governing the construction of the Project or Components thereof, and the design and preparation of any necessary documents antecedent to preparation of such Construction Documents and (ii) for supervision or architectural administration of the Work under Contract Documents. The term “Design Professional” includes engineers, surveyors, designers and the other consultants retained by the Design Professional. The CM/GC acknowledges and agrees that the Contract Documents are addressed to skilled tradesmen in the construction profession who shall be required to use their special skills and experience, through Submittals and Shop Drawings, to translate the Design Professional’s design intent as expressed in the Contract Documents into a completed structure. Design Professional shall ensure that the Contract Documents specify when Shop Drawings or Submittals require the seal of a specialty consultant. 1.1.1.3.2.1 The basis of the Owner's engagement of the Design Professional is the “Design Professional Contract”, also known as the Architectural Contract. The CM/GC acknowledges that both the Owner and the Design Professional have on file, at their respective places of business, copies of that executed agreement, and that both the Owner and the Design Professional will make available for review by CM/GC those copies at the CM/GC's request. The Design Professional is not the agent of the Owner, except to the extent so specified in writing, but is employed as a consultant to the Owner to assist the Owner in determining if the conditions of this Contract have been met. 1.1.1.3.2.2 A copy of the Design Professional Contract is attached hereto in Exhibit A and incorporated herein by reference. CM/GC shall become familiar with the respective services, authorities, obligations, and responsibilities of the parties as provided in the Design Professional Contract. CM/GC agrees to coordinate, assist, and develop a working relationship with the Design Professional to effect the purposes of the Project in accordance with the terms of this Contract and the Design Professional Contract. Section 1 – General Part 1 – General Provisions 2 General Requirements 1.1.1.3.2.3 The CM/GC also acknowledges that the Design Professional will consult with and assist the Owner in developing and implementing the Owner's objectives, including budgeting and time criteria, space requirements and relationships, flexibility and expandability requirements, special equipment and systems, and Site requirements. Furthermore, the CM/GC acknowledges that the Owner and the Design Professional are proceeding with the Project on the basis of trust, good faith, and fair dealing, and they will take all actions reasonably necessary to ensure the Project proceeds to completion within the Owner's time and budgeting constraints. The CM/GC further acknowledges that in order for the Design Professional to perform its obligations under the Design Professional Contract, the Design Professional requires certain materials, information or other submissions as per the Contract Documents, from the CM/GC. The CM/GC agrees to provide the Design Professional with the Submittals required by the Construction Documents. The CM/GC further agrees to cooperate with the Design Professional to ensure timely completion of all obligations under this Contract and the entire Project. 1.1.1.3.2.4 CM/GC agrees that the services provided by the Design Professional under the Architectural Contract are intended to coordinate and complement, but not to diminish, alter or substitute for any of the services, authority, obligations, or responsibilities of the CM/GC under this Contract. CM/GC further agrees that the performance of services by the Design Professional in connection with the Project shall in no way relieve CM/GC from any of its services, authority, obligations, or responsibilities under this Contract, and shall not alter or diminish those services, authority, obligations, or responsibilities in any way whatsoever. 1.1.1.3.3 [RESERVED] 1.1.1.3.4 Owner's Representative. Owner shall from time to time in writing designate one person as Owner's Representative under this Contract. Owner's Representative so designated in writing shall serve as Owner's Representative under this Contract unless or until Owner gives notice in writing of the appointment of his successor. Owner or Owner's Representative may designate in writing assistants to serve as Owner's Representative with respect to the Project governed by this Contract or in different phases or in specific areas of responsibility with respect to the Project. All requests for consents and approvals required of Owner in connection with the Project, whether by Design Professional, or CM/GC, shall be submitted to Owner's Representative, or if the matter is within the written designation of authority of his assistant, to his designated assistant. Design Professional and CM/GC may rely upon written consents and approvals signed by the Owner's Representative, or his designated assistant acting within the scope of his written designation, as the consent and approval of Owner, provided that CM/GC acknowledges that Owner’s Representative may not bind the Owner to any decision, written statement or representation materially altering the terms of the Contract Documents or increasing the total amount paid under this Contract in excess of Guaranteed Maximum Price, as such changes must be approved by resolution of the City of Milton City Council. 1.1.1.3.5 Intentionally Omitted. 1.1.1.3.6 CM/GC. In accordance with this Contract, the CM/GC shall participate in the review and development of the design of the Project set forth in the Program and, in coordination with the Design Professional, shall participate in the scheduling of such design work and of construction of the Project, the Components thereof, construction of the Components of the Project under Component Change Orders, and of the entire Project under a GMP Change Order. Nothing herein shall be deemed to impose upon the CM/GC any responsibilities to provide any services constituting the practice of architecture, engineering, or any related design profession. CM/GC shall exercise the professional skill and judgment of a CM/GC in similar circumstances in Georgia in the performance of its construction management services. 1.1.1.3.7 Owner’s Construction Inspector. From time to time, in writing, the Owner may hire and/or designate an individual or firm as Owner's Construction Inspector under this Contract. The Owner’s Construction Inspector may be hired by Owner or Design Professional’s contract and shall provide up to 100% inspection services of the Work on behalf of the Owner. The presence of an Owner’s Construction Inspector does not relieve the CM/GC of any of its responsibilities for quality control and independent testing set forth in the General Requirements. The Owner’s Construction Inspector has the authority to report any deviations from the Contract Documents directly to the CM/GC’s superintendent at the job Site for immediate action, and also to report same to the Design Professional, and Owner. 1.1.1.3.8 Representatives. The designated representatives of the CM/GC and the Owner shall have full authority to act (other than for the receipt of notices that must be given as specified in Paragraph 1.1.5) in matters relating to this Contract until notice is given that such authority has been revoked; provided that CM/GC acknowledges that Section 1 – General Part 1 – General Provisions 3 General Requirements Owner’s Representative may not bind the Owner to any decision, written statement or representation materially altering the terms of the Contract Documents or increasing the total amount paid under this Contract in excess of the Guaranteed Maximum Price, as such changes must be approved by resolution of the City of Milton City Council, and that the Owner’s Representative must act within the guidelines of the Contract Documents and Construction Documents, and all Change Orders thereto. CM/GC and the Owner may each rely upon the written certification of the other as to the appointment of a designated representative or the revocation of his authority. The CM/GC shall designate, in writing, a representative authorized to act on the CM/GC's behalf with respect to the Project. The CM/GC's initial authorized representative shall be the Project Superintendent identified in the CM/GC’s proposal. CM/GC shall employ the Project Superintendent and necessary assistants who shall be in attendance at the Site during the progress of the Work. CM/GC shall be represented by an officer of the CM/GC All written communications given to such officer shall be binding upon the CM/GC. 1.1.1.3.9 Separate Contractor. Owner may select one or more Separate Contractors to perform work with respect to the Project or Components thereof. The CM/GC shall afford the Owner's Separate Contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities and shall coordinate the Separate Contractors’ schedules with those of the CM/GC. The Owner's Separate Contractors shall adhere to the CM/GC's work rules, schedule, lay down areas, and safety requirements. 1.1.1.3.10 Commissioning Authority. Owner may select and employ a Commissioning Authority to perform building commissioning activities and monitor testing activities. The Commissioning Authority shall perform and coordinate and accomplish its work as set forth in Articles 1.3.4 and 2.1.7. 1.1.2 Project Team, Cooperation, Partnering. 1.1.2.1 Concept. It is the Owner's expectation that the Design Professional, Owner, CM/GC, and any Separate Contractor, shall work as a Project Team to effect the commencement of and completion of construction in accordance with the Project Schedule, and to achieve Final Completion of the Project. Each team member shall communicate with all other team members to assure overall coordination, cooperation, and efficiency. Each team member shall cooperate fully with and coordinate fully with each other team member in order to achieve Project completion in an expeditious and economical manner. The CM/GC shall schedule regular meetings of the key principals of the Project Team in an effort to solve problems in a partnering atmosphere to facilitate the ability of each team member to meet its business objectives, so long as its business objectives are consistent with the successful completion of the Project. It is the Owner’s intent that all consensus decisions of the Project Team, where differing from the Contract Documents, be reduced to writing in an appropriate Change Order. 1.1.2.2 Conference. Promptly after the execution of this Contract, CM/GC shall confer with the Design Professional, and Owner to identify personnel and relevant organizational charts of each team member, and to establish working relationships with each team member. 1.1.2.3 Authority of CM/GC. CM/GC is, and at all times during the term of this Contract shall be, an independent contractor in the performance of its duties and obligations under this Contract. CM/GC shall have no authority to bind or otherwise obligate Owner, orally, in writing or by any acts, unless specifically authorized by Owner in writing, and then only for the limited purpose and extent stated in such authorization. Nothing contained in this Contract shall constitute or be deemed or construed to create a partnership or joint venture, or any agency relationship, between Owner and CM/GC. 1.1.3 Intentionally Omitted. 1.1.4 Third Party Beneficiary. CM/GC acknowledges, stipulates, and agrees that the Owner is political subdivision of the State of Georgia acting by and through the City Council of City of Milton, Georgia, and that the Owner is performing an essential public and governmental function by means of the Contract. There are no third party beneficiaries of this Contract. 1.1.5 Notice. 1.1.5.1 General Requirement. Any notice, election, demand, request, consent, approval, or other communication required or permitted to be given under this Contract shall be in writing signed by an officer or duly authorized representative of the party making same and shall be deemed received, and shall be effective when: (1) personally delivered, or (2) on the third day after the postmark date when mailed by certified mail, postage prepaid, return receipt requested, or (3) upon actual delivery when sent via national overnight commercial carrier to the address shown in the Contract. The persons and addresses to which notices should be given may be changed by notice given in accordance with this Article. Section 1 – General Part 1 – General Provisions 4 General Requirements 1.1.5.2 Copies of Notices to Owner. Wherever the Contract Documents provide that a copy of any notice, request, or demand filed with the Design Professional by the CM/GC shall be furnished to the Owner, such notice, request, or demand shall not become effective until the Owner has received his copy. No notice in writing or given orally to the Design Professional is notice to the Owner unless copy of the aforesaid notice in writing shall have been properly served upon the Owner at the address shown in the Contract. 1.1.6 Liquidated Damages. 1.1.6.1 Time of the Essence. Time being of the essence of this Contract, and a material consideration thereof, it is mutually agreed by the parties hereto that in the case of the CM/GC’s failure to complete the construction within the time specified, the Owner will be damaged thereby. The CM/GC shall commence performance of the Work on the Site under this Contract as of the Proceed Order Date. The CM/GC shall complete construction, except for Minor Items and Permitted Incomplete Work (see Article 6.1.2), not later than the Material Completion Date, as adjusted by Change Order. 1.1.6.2 Liquidated Damages. Because it is difficult to definitely ascertain and prove the amount of actual damages likely to result if CM/GC fails to complete the construction within the time specified, inclusive of, but not limited to, expenses for inspection, superintendence, loss of use, and necessary traveling expenses, the Owner and CM/GC hereby agree that, instead of requiring any such proof, as liquidated damages for delay (but not as a penalty), the CM/GC shall pay the daily amount for Liquidated Damages specified in Paragraph 8 of the Contract for each and every calendar day that expires after the Material Completion Date, as provided herein, or as agreed by both parties in a Change Order. The CM/GC shall be responsible for payment of the Liquidated Damages, accrued daily, beginning upon the contractually required Material Completion Date and ending on the date that the Certificate of Material Completion is issued. The parties agree that the specified Liquidated Damages are not established as a penalty but are calculated and agreed upon in advance as a fair and equitable amount reasonably estimated in advance to cover losses to be incurred by the Owner for such delay or interruption in view of the uncertainty and impossibility of ascertaining actual damages that would be incurred. 1.1.6.2.1 CM/GC Agrees to Pay. The CM/GC agrees to pay the amount, computed by multiplying the Liquidated Damages set forth in the Contract by the number of days between the contractually required Material Completion Date and the date that the Certificate of Material Completion is issued. 1.1.6.2.2 Deducted as They Accrue. Liquidated Damages shall be deducted from periodic payments as they accrue, and such deduction shall be in addition to the retainage provided for in the Contract. The remaining balance of any Liquidated Damages shall be deducted from the Payment for Final Completion to the CM/GC or its Surety. If the unpaid balance of the Contract Sum is less than the total amount to be deducted for Liquidated Damages as herein above provided, the CM/GC shall promptly pay to the Owner, upon the Owner's demand, the amount by which such sum exceeds the unpaid balance of the Contract Sum. 1.1.6.3 Limitation on Owner’s Damages. Except as otherwise set forth in the Contract Documents, damages of the Owner for delay shall be limited to the Liquidated Damages as defined herein. Nothing in this Article 1.1.6 shall be construed to limit Owner’s right to pursue damages or remedies for claims against the CM/GC for reasons other than delay. 1.1.7 Documents. 1.1.7.1 Precedence of Documents and Changes. In the event of conflict within or between this Contract and the General Requirements, the provision most beneficial to the Owner, as determined by the Owner in its sole discretion, shall govern. No change to the Contract Documents is effective unless notice shall have been issued by the Owner. The Design Professional has no authority to amend the Contract Documents, orally or in writing, either expressly or by implication. The Contract Documents are to be taken as a whole and are intended to be complementary with one another. It is also intended that they include all items necessary for the proper execution and completion of the Work. If a conflict exists between or within the Contract Documents, or if they are inconsistent, this Contract shall govern, provided that any Change Order executed after the date of this Contract shall control over any contrary terms contained in this Contract and any other Contract Documents existing at the time of this Contract. 1.1.7.2 Copies of Contract Documents to CM/GC. Without charge to the CM/GC, the Design Professional shall furnish to the CM/GC electronic access to current Drawings and Specification files and Rivit Model in accordance with the Design Professional’s contract for CM/GC’s use in planning, estimating, bidding, contract administration Section 1 – General Part 1 – General Provisions 5 General Requirements and other construction management activities. The CM/GC may obtain such additional sets of Contract Documents, as the CM/GC deems necessary and shall pay the cost of reproduction of such additional sets to the Design Professional. 1.1.7.3 Marked-Up (“As-Built”) Documents. Prior to Final Completion, the CM/GC shall provide one (1) complete set of Marked-Up Documents to the Design Professional. The Marked-Up Documents shall consist of the Drawings and Specifications, Change Orders, field instructions, answers to RFIs, clarifications, sketches, etc. annotated and changed to reflect the as-built condition of the Project, all Change Orders, field instructions, answers to Requests for Information (“RFI’s”), clarifications, sketches, delegated CM/GC design Drawings and locations of utilities and other hidden elements. 1.1.7.4 Copies to the Owner. Upon Owner’s request, the CM/GC shall furnish the Owner with copies of Project related correspondence, letters of transmittal, etc. 1.1.8. Defined Terms. Wherever used in the Contract Documents, the terms defined in this Contract will have the meanings indicated that are applicable to both the singular and plural, and to the masculine and feminine thereof. In addition to terms specifically defined, terms with initial capital letters in the Contract Documents may include references to identified articles and paragraphs, and the titles of other documents or forms. 1.1.8.1 Meaning of Words and Phrases. Unless the context or the Contract Documents taken as a whole indicate to the contrary, words used in the Contract Documents that have usual and common meanings shall be given their usual and common meanings; words having technical or trade meanings shall be given their customary meaning in the subject business, trade, or profession. Materials or work described in words that, so applied, have a well- known technical or trade meaning shall be held to refer to such recognized meaning. 1.1.8.2 Cross-References, Headings, and Citations to the Contract. Cross-references, headings, and citations to the Contract, if any, are for the convenience of the CM/GC and the Owner and are not intended to be plenary or exhaustive nor are they to be considered in interpreting the Contract Documents or any part of the Contract Documents. 1.1.8.3 Install, Deliver, Furnish, Supply, Provide and Other Such Words. Install, deliver, furnish, supply, provide, and other such words mean that the Work in question shall be put in place by the CM/GC ready for use unless expressly provided to the contrary. 1.1.8.4 Articles Not Plenary. This Article and Article 1.1.9 are not entire, plenary, or exhaustive of all terms used in the Contract and General Conditions that require definition. There may be definitions of other terms under articles to which the terms are related. Terms defined in the Design Professional Contract shall have the meanings set forth in those documents, unless otherwise specifically provided. 1.1.9 Basic Definitions. 1.1.9.1 Addenda. Written or graphic instruments issued by the Design Professional that clarify, correct, or change any of the Component parts of the Contract Documents. 1.1.9.2 Affiliate. With respect to CM/GC, any firm, partnership, corporation or other legal entity that is owned by, under common ownership or control with, or having a common principal or shareholder with, the CM/GC, whether such relationship is direct or indirect. In addition, unless the consequences of such relationship for the purposes of this Contract are expressly waived in writing by the Owner after full disclosure by the CM/GC, the term “Affiliate” also includes any entity currently affiliated with CM/GC as a partner or joint venturer with respect to any commercial venture, whether or not such venture includes the Project. See O.C.G.A. §36-91-53. 1.1.9.3 Affiliated Contract. Any agreement concerning the Project between the CM/GC and an Affiliate, including all modifications and amendments thereto. 1.1.9.4 Application for Payment. The form acceptable to Owner that is to be used by the CM/GC during the course of the Work in requesting payment from the Owner and that is to be accompanied by such supporting documentation as is required by the Contract Documents. 1.1.9.5 Asbestos. Any material that contains more than one (1) percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. Section 1 – General Part 1 – General Provisions 6 General Requirements 1.1.9.6 As Built Documents. Documents showing actual locations of all utility lines and altered to conform to all changes made in the building during its construction, including but not limited to all Drawing changes made by Addendum and by Change Order. For field changes not documented through addendums, RFIs or Change Orders, the Design Professional shall rely on marked up Drawings prepared by the CM/GC to prepare these AS-BUILT DOCUMENTS. The Design Professional is not responsible for the accuracy of the information prepared by the CM/GC to prepare these AS-BUILTS.The Design Professional shall furnish the following information: (a) One hard copy of full-size Drawings and Specifications that include all changes made by Addendum or Change Order. (b) An electronic copy of the documents on compact discs in an electronic version as requested by the Owner (which format may include PDF, RWG, Revit, or any other format acceptable to the Owner, provided that Owner’s selected format does not require a redraw of the plans by the Design Professional) and an electronic file of Specifications in Microsoft Word. If translation is required, the translation shall be of the same level of quality, completeness and usability as the original. 1.1.9.7 Basic Services. The preconstruction, consultation, construction and related services required to be provided by the CM/GC for the construction and completion of the Project or Component thereof in accordance with the Contract Documents. Basic Services is not interchangeable with and is distinct from the term "Work", as Work may include services beyond Basic Services. 1.1.9.8 Bulletin. Written or graphic material issued after the award of the contract that clarifies, corrects, or proposes a change in any of the Component parts of the Contract Documents. 1.1.9.9 Business Day. A business day is each calendar day other than (1) Saturday, (2) Sunday, and (3) any holiday observed by Owner. 1.1.9.10 Change Order. A document issued on or after the Effective Date of the Contract, signed by the CM/GC and the Owner and ordinarily certified by the Design Professional, which may authorize a change or changes, including but not limited to a change to the Contract Sum, the Contract Time, or the Contract Documents. 1.1.9.11 Claim. A demand or assertion by the Owner or the CM/GC seeking an adjustment of the Contract Sum or Contract Time, or both, or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes and matters in question between the Owner and the CM/GC arising out of or relating to the Contract. The responsibility to substantiate a Claim shall rest with the party making the Claim. A demand for money or services by a third party, including a Trade Contractor, Supplier, or Subcontractor to the CM/GC, is ipso facto not a Claim against the Owner. 1.1.9.12 Component. An element of a Project for which the Design Professional prepares or segregates Construction Documents as a discrete package to permit procurement of the described items or the commencement of the construction of the described element of the Project. 1.1.9.13 Component Change Order. A Change Order authorizing the CM/GC to proceed to construct a Component pursuant to the Component Construction Documents. 1.1.9.14 Component Construction Documents. The Construction Documents issued by the Design Professional with respect to a Component. 1.1.9.15 Construction Documents. The architectural and engineering documents setting forth the design for the Project prepared by the Design Professional. Construction Documents include, but are not limited to, the Specifications, the Drawings, the General Requirements, and all Addenda. 1.1.9.16 Construction Progress Schedule. A schedule indicating agreed upon activity sequences and durations, Milestone dates for receipt and approval of pertinent information, preparation, submittal, and processing of Shop Drawings and Samples, delivery of materials or equipment requiring long-lead time procurement, and proposed date(s) of Material Completion and Final Completion. The format of the schedule will be agreed upon by the parties. 1.1.9.17 Contract. The written document that is the evidence of the Contract between the Owner and the CM/GC. 1.1.9.18 [RESERVED] 1.1.9.19 Contract Documents. The Contract Documents include the executed Contract, any Component Section 1 – General Part 1 – General Provisions 7 General Requirements Construction Documents, the Construction Documents, and all Change Orders, contractor’s bid (including all documentation accompanying the bid and any post-bid documentation required by the city prior to the Notice of Award), bonds, all special conditions, general conditions, supplementary conditions, specifications, drawings and addenda, together with written amendments, change orders, field orders and the city’s (or city’s designated representative) written interpretations and clarifications issued in accordance with contract documents on or after the date of the contract agreement. 1.1.9.20 Contract Time. The period of time established for completion of the Project by the Contract Documents. Contract Time commences upon the date specified in the Proceed Order and ends upon the date Final Completion is actually accomplished, as it may be amended. Expiration of Contract Time shall in no way limit CM/GCs warranty obligtaions described herein. 1.1.9.21 CM/GC. The person or entity responsible for the proper completion of the activities described in the Contract Documents, except where specifically provided otherwise. 1.1.9.22 Cost of the Work. The sum of all allowable costs necessarily incurred and paid by CM/GC in the proper performance of the Work, but such costs shall not include CM/GC’s Fee, Owner’s Design Contingency or Construction Overhead Costs and Expenses. Notwithstanding anything to the contrary herein, Cost of the Work shall include CM/GC’s Contingency. 1.1.9.23 Day. Unless otherwise stated, reference to the terms "day," "days," "month," or "months" mean calendar day, calendar days, calendar month, and calendar months, respectively. 1.1.9.24 Defective Work. Work that, for any reason, is not in compliance with the Contract Documents. Defective Work is usually identified in a Notice of Non-Compliant Work. 1.1.9.25 Design Development. An interim step in the design process occurring upon receipt of written acceptance from Owner of the Schematic Design Documents and written authorization from Owner to proceed. Design Development documents consist of plans, elevations, and other Drawings and outline Specifications and Design Professional’s Budget Certificate. These documents will fix and illustrate the size and character of the entire Project in its essentials as to kinds of materials, type of structure, grade elevations, sidewalks, utilities, roads, parking areas, mechanical and electrical systems, and such other work as may be required. 1.1.9.26 Design Professional Contract. The Contract between the Owner and the Design Professional for the design of the Project; also known as the Architectural Contract. 1.1.9.27 Design Professional (also known as the “Architect”). The architect or engineer or architectural or engineering firm selected by Owner (i) for the design and preparation of Contract Documents governing the construction of a Project, or (ii) for construction contract administration under the Contract Documents, or (iii) for both, all such services and the scope thereof to be set forth in the Design Professional Contract. The Design Professional is not an employee of the Owner but is engaged or retained by it for the purpose of performing design and construction administration services for the Project. The term “Design Professional” includes architects, engineers, surveyors, designers, and other consultants retained by the Design Professional. 1.1.9.28 Drawings. That part of the Contract Documents prepared or approved by the Design Professional that graphically show the scope, extent, and character of the Work to be performed by CM/GC. Shop Drawings and other CM/GC Submittals are not Drawings as so defined. 1.1.9.29 Effective Date of the Contract. The date indicated on the Contract or as otherwise specified therein. 1.1.9.30 Final Certificate, Design Professional’s Certificate of Final Completion. The Certificate issued by the Design Professional stating that all Work has been completed in accordance with the terms of the Contract Documents. See Section 6, Project Completion. 1.1.9.31 Final Completion. Final Completion has the definition set forth in Article 6.2.1.1 1.1.9.32 Final Notice of Non-Compliant Work. The Final Notice of Non-Compliant Work is issued as a result of the inspection for Final Completion, also known as the Final Punchlist. Upon the completion or correction of this Non-Compliant Work (“punchlist” work) the Design Professional, with the approval of the Owner, will issue the Final Certificate. Costs associated with the repair or replacement of Non-Compliant Work may be deducted from Section 1 – General Part 1 – General Provisions 8 General Requirements CM/GC’s Contingency (except to the extent CM/GC recevives funds from another party, such as subcontractor or insurance company, due to the Non-Compliant Work). 1.1.9.33 Guaranteed Maximum Price (GMP) (also referred to herein as the “Contract Sum”). The maximum amount that Owner is obligated to pay CM/GC for construction of the Project under the GMP Change Order, and including all costs and fees to be paid to CM/GC in connection with the Work and the Project. 1.1.9.34 Guaranteed Maximum Price (GMP) Change Order. The Change Order setting the Guaranteed Maximum Price and authorizing the CM/GC to proceed to construct the Project pursuant to the Construction Documents. The GMP Change Order supersedes all prior Component Change Orders unless specific provisions in the GMP Change Order express otherwise. 1.1.9.35 Hazardous Substances. See Section 1 Part 6. 1.1.9.36 Material Completion and “Material Completion Date”. See Section 6 Part 1. 1.1.9.37 Milestone. A principal event specified in the Contract Documents, including the Material Completion Date and other events relating to an intermediate completion date or time. 1.1.9.38 Notice. Written notice. See Article 1.1.5. 1.1.9.39 Notice of Non-Compliant Work. A Notice of Non-Compliant Work shall be in writing, shall be dated, shall be signed by the Design Professional, and shall be addressed to the CM/GC with a copy to the Owner, as set forth in Section 3, Part 6 (Correcting the Work) and Section 6, Part 6 (Correcting the Work after Final Payment). 1.1.9.40 Owner. City of Milton, Georgia, identified as the Owner in this Contract with whom CM/GC has entered into the Contract and for whom the Work is to be completed. 1.1.9.41 Owner's Representative. Owner may from time to time in writing designate one individual as Owner's Representative under this Contract. Owner's Representative so designated in writing shall serve as Owner's Representative unless and until Owner gives notice in writing of the appointment of his successor. The Owner or Owner's Representative may designate in writing assistants to serve as Owner's Representative with respect to the Project governed by this Contract or in different phases or in specific areas of responsibility with respect to the Project. All requests for consents and approvals required of Owner in connection with the Project, whether by the Design Professional, CM/GC, Owner’s Construction Inspector, and or Separate Contractor, shall be submitted to Owner's Representative, if so designated, or if the matter is within the written designation of authority of his assistant, to his designated assistant. The Design Professional, CM/GC, Owner’s Construction Inspector, and Separate Contractor may rely upon written consents and approvals signed by the Owner's Representative, or his designated assistant acting within the scope of his written designation, as the consent and approval of Owner; provided that any approval or consent materially altering the terms of this Contract or the Contract Documents, or increasing the amount paid under this Contract in excess of the GMP must be approved by resolution of the City of Milton City Council. 1.1.9.42 Overall Project Schedule. The overall construction schedule that includes both design and construction activities that is approved by the Owner. 1.1.9.43 Pre-Commencement Phase Services. The services required to be provided by the CM/GC for the Pre- Commencement Phase of the Project in accordance with the Contract Documents, including but not limited to Section 3.2.13 of this Contract. 1.1.9.44 Proceed Order. The Proceed Order is a written notice from the Owner that includes a specified date (i.e. the Proceed Order Date) upon which the CM/GC is authorized to commence physical work on the Site. Unless the Proceed Order states otherwise, the Proceed Order Date shall be the date upon which the Proceed Order is actually signed and dated by the Owner’s authorized representative. A Proceed Order is a condition precedent to the execution of any Work on the Site by the CM/GC. The Proceed Order was formerly referred to as the “Notice to Proceed.” 1.1.9.45 Project. The total and complete undertaking for the public works facility to be constructed under this Contract. 1.1.9.46 Project Manual. A bound manual prepared by the Design Professional. It shall include but not be limited to the Specifications, the General Requirements, and Addenda. Section 1 – General Part 1 – General Provisions 9 General Requirements 1.1.9.47 Owner Party(ies). The Owner’s departments, agencies and instrumentalties and all of its respective officers, boards, commissions, members, elected and appointed officials, employees, servants, volunteers or agents. 1.1.9.48 Samples. Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and that establish the standards by which such portion of the Work will be judged. The CM/GC shall furnish for approval all Samples required by the Contract Documents. The Work shall be in accordance with approved Samples. 1.1.9.49 Schematic Design. The beginning of the design process, sometimes commonly known as Preliminary Design. Schematic Design documents are the Schematic Design plans and elevations showing the scale and relationship of Project or its Components. Schematic Design documents consist of written and graphic (drawings, sketches, etc.) presentations that will enable the Owner to determine if the intent of the Project, as set forth in the Program provided by the Owner, is being addressed, and shall consist of at least the following: (a) schematic site plan; (b) floor plans; (c) elevations; and (d) additional Specification documents describing architectural, structural, mechanical and electrical systems and materials; and (e) a preliminary Design Professional’s Budget Certificate. 1.1.9.50 Separate Contractor. Any person or entity other than CM/GC that enters into an agreement with Owner to perform the construction of all or any portion of the construction on a Project. 1.1.9.51 Site. Lands or areas indicated in the Contract Documents as being furnished by the Owner upon which the Work is to be performed, including rights-of-way and easements for access thereto, and such other lands furnished by the Owner that are designated for the use of the CM/GC. Also referred to as Project Site, Job Site and Premises. 1.1.9.52 Specifications. That part of the Contract Documents consisting of written requirements for materials, equipment, systems, standards, and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable thereto. The term "Specifications" shall also include all written matter in the Project Manual or on the Drawings and any Addenda or Change Orders thereto. 1.1.9.53 Subcontractor. The generic term subcontractor as employed herein includes only those having a direct contract with the CM/GC or any subcontractor performing Work specified pursuant to this CM/GC contract. 1.1.9.54 Submittals. Shop Drawings, schedules, data, catalogue cuts, manufacturers' published recommendations, charts, Bulletins, brochures, illustrations, circulars, roughing drawings or formulae, etc., that are specifically prepared, distributed, or assembled by or for CM/GC or by Subcontractors, manufacturers, or Suppliers and submitted by CM/GC to illustrate some portion of the Work or for use in installing the Work. Design Professional shall ensure that the Contract Documents shall specify when Shop Drawings or Submittals require the seal of a specialty consultant. 1.1.9.55 Supplier. A manufacturer, fabricator, distributor, supplier, or vendor of goods or equipment in connection with the Work, or any other party having a Contract or Purchase Order with the CM/GC or with a Subcontractor to furnish materials or equipment to be incorporated in the Work by the CM/GC or a Subcontractor. 1.1.9.56 Trade Contractor. A Subcontractor who furnishes and installs materials according to the plans and Specifications of this Project but does not include one who merely furnishes materials. 1.1.9.57 Underground Facilities. All underground pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any encasements containing such facilities, including without limitation those that convey electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater, storm water, other liquids or chemicals, or traffic or other control systems. 1.1.9.58 Unit Price Work; (“Unit Prices” to be agreed to by CM/GC and Owner). Work to be paid for on the basis of unit prices as defined and described in the Contract Documents. A percentage markup for overhead or profit shall be included in all unit prices. 1.1.9.59 Shop Drawings. Detailed construction and fabrication drawings that show the proposed material, shape, size, and assembly of the parts and how the entire unit will be installed. 1.1.9.60 Incumbrance Record. A record of Owner commitments related to changes in the Work. Section 1 – General Part 1 – General Provisions 10 General Requirements 1.1.9.61 Work. All labor, materials, and services necessary to produce the construction of the Project in accordance with the Contract Documents, including the entire construction or the various separately identifiable parts thereof. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction, and furnishing, installing, and incorporating all equipment, fixtures, and supplies into such construction, all as required by the Contract Documents. Section 1 – General Part 2 – CM/GC’s General Responsibilities and Duties 11 General Requirements PART 2 – CM/GC’S GENERAL RESPONSIBILITIES AND DUTIES 1.2.1 General Responsibilities. 1.2.1.1 Representations of CM/GC. 1.2.1.1.1 Independent Contractor; Fiduciary Role. The CM/GC represents that it is an independent contractor, competent, knowledgeable, and familiar with the type of Work contemplated by this Contract. The CM/GC agrees and understands that neither it nor any of its agents or employees may act in the name of the Owner except and unless and to the extent specifically authorized in writing by the Owner to do so. The CM/GC further represents that it accepts a fiduciary role and responsibility with respect to the Owner and that it owes the Owner the duties of good faith, trust, confidence, and candor, and that it must exercise a high standard of care in managing money and property. The CM/GC will, to its best abilities, act in the best interests of the Owner and, to its best abilities, ensure the timely completion of the Work. The CM/GC shall furnish design review, construction administration and management services and use the CM/GC's best efforts to construct the Project in an expeditious and economical manner consistent with the interests of the Owner. 1.2.1.1.2 Familiarity with Project. CM/GC represents that it has: (a) visited the Project Site(s), (b) taken such other steps as may be necessary to ascertain the nature and location of the Project Work and the general and local conditions that affect the Project Work or the cost thereof, (c) investigated the labor situation as regards to the Project, (d) examined the nature and location of the Project Work, the obstacles that may be encountered and all other conditions having a bearing upon the performance of the Project Work, the superintendence of the Project Work, the time of completion and all other relevant matters, (e) reported to Owner the results of all of the foregoing, and (f) familiarized itself with all local laws, and regulations. CM/GC represents that it has taken the foregoing into account in its review of the Contract Documents. (Notwithstanding anything to the contrary herein, the Designer has all responsibility for ensuring that the design, and Contract Documents representing such, are to and in compliance with applicable code.) 1.2.1.2 Responsibility to Coordinate. CM/GC acknowledges its responsibility to coordinate the Project Work with that of Separate Contractors to be selected for the installation of other work within the Project, or in the proximity of the Project. CM/GC expressly agrees to schedule and, with the assistance of Owner, coordinate the Project Work with such Separate Contractors in order to assist them and permit each phase of the Project to be completed on schedule. 1.2.1.3 Definition of Project Criteria. Owner shall be responsible for defining Project Criteria as to expectations for program design, cost, and construction schedule. CM/GC shall be responsible for delivering all construction services necessary to complete improvements that satisfy the Project Criteria promulgated by Owner. Additionally, CM/GC shall be responsible for providing timely feedback to Owner relating to Project design, budget, and schedule to allow Owner to make value- based judgments throughout the development and construction process. 1.2.1.4 CM/GC’s Review of the Construction Documents and Participation in Design Coordination Meetings. The CM/GC shall review the Construction Documents, including without limitation, the Owner’s Program to understand the requirements of the Project. The CM/GC shall actively participate in Design Coordination Meetings with the Design Professional and Owner for the purpose of collaborating and coordinating the final design and Construction Documents. The CM/GC is responsible for cooperating and assisting in the coordination of the development of the design of the Project within the budgeted cost and schedule. The objective of the coordination is to assure that the design meets the Owner’s Program in all respects, including but not limited to the following areas: • Cost containment and cost monitoring; • Cost-effective decisions; • Compatibility with Owner’s architectural standards. • Consistency with the Owner’s expectations in the Owner’s Program; • The appropriate provision of all necessary services and utilities; • The necessary level of environmental review and documentation; • That the Owner is kept fully aware of the progress of the Project; • That the Overall Project Schedule is maintained; • That construction quality assurance complies with the Owner’s Program; • That the Construction Documents are reviewed for constructability; and • That all permits and approvals are obtained for the Owner to occupy the Project. 1.2.1.5 Project Delivery. The CM/GC shall commence the Basic Services immediately upon the Effective Date of the Contract and shall commence physical work at the Site as of the Proceed Order Date specified in the Proceed Order issued Section 1 – General Part 2 – CM/GC’s General Responsibilities and Duties 12 General Requirements by the Owner. CM/GC shall construct the Project in accordance with the Contract Documents, and shall diligently perform all the Work required by the Contract Documents or reasonably inferable from industry standards and code requirements. CM/GC shall deliver the Project completed in accordance with the Contract Documents, substantially free from defects, and within the Contract Time. The CM/GC’s duties shall not be diminished by any approval by the Owner or Design Professional, of Work completed or produced; nor shall the CM/GC be released from any liability by any approval by the Owner or Design Professional of Work completed or produced, it being understood that the Owner is ultimately relying on the CM/GC’s skill and knowledge in performing the Work required under this Contract. In the event that during the course of performing the Work, the CM/GC discovers or reasonably should discover (given its role as a CM/GC and not as a design professional) that there exists in any Drawings, Specifications, plans, sketches, instructions, information, requirements, procedures, and other data supplied to the CM/GC (by the Owner or any other party) that is, in the CM/GC’s opinion, unsuitable, improper, or inaccurate for the purposes for which the document or data is furnished, CM/GC shall promptly inform the Owner of such inaccuracies, impropriety, issues or concerns. 1.2.1.6 CM/GC’s Consultation concerning Replacement of Work. The CM/GC shall provide consultation concerning replacement of Work damaged by fire or other cause during construction, and furnish all Basic Services required in connection with the replacement of such Work. Such consultation will be considered an additional service and will be provided pursuant to a Change Order unless the fire or other damage was caused as a result of the negligence of the CM/GC or its Subcontractors. If the cost of the replacement or repair of the damage is reimbursable under the terms of any insurance policy, the full amount of any such insurance recovery shall be applied to the Project for the benefit of the Owner. 1.2.1.7 Budgetary Limitations. CM/GC agrees and acknowledges that budgetary limitations are not a justification for breach of sound principals of CM/GC’s profession and industry. CM/GC shall take no calculated risk in the performance of the Work. Specifically, CM/GC agrees that, in the event it cannot perform the Work within the budgetary limitations established without disregarding sound principals of CM/GC’s profession and industry, CM/GC will give written notice immediately to the Owner. 1.2.1.8 Owner’s Reliance on the Work. The CM/GC acknowledges and agrees that, except where the Owner has undertaken design responsibility, the Owner does not generally undertake to approve or pass upon matters of expertise of the CM/GC. The CM/GC acknowledges and agrees that the acceptance of Work by the Owner, or Owner’s Representative is generally limited to the function of determining whether there has been compliance with what is required to be produced under this Contract. Notwithstanding the foregoing, the CM/GC shall be entitled to rely upon any design instructions expressly provided by the Owner or Owner’s Representative. 1.2.2 General Duties. The CM/GC accepts the relationship of trust and confidence established between it and the Owner by this Contract. The CM/GC agrees to furnish all services that are necessary or appropriate to complete fully all required Basic Services as defined in the Contract Documents. The CM/GC also agrees to furnish efficient business administration and superintendence to complete fully all required Basic Services and Work.. 1.2.2.1 Provision and Payment for Basic Services and the Work. Unless otherwise provided in the Contract Documents, the CM/GC shall provide and pay for all labor, materials, equipment, transportation, construction, resources, work, and services necessary or incidental to completing the Work for each phase or Component of the Project in a proper and timely manner in accordance with the Contract Documents and applicable laws, whether temporary or permanent and whether or not incorporated or to be incorporated in the Project. 1.2.2.2 Supervision and Direction. CM/GC shall supervise and direct the Work using diligent skill and attention. CM/GC shall be responsible for and shall coordinate all construction means, methods, techniques, sequences, and procedures. (See also Section 3.) 1.2.2.3 Enforce Discipline. CM/GC shall at all times enforce strict discipline and good order among its employees, Subcontractors, and others performing the Work, and shall not employ or permit the employment of unfit persons or persons not skilled in the task assigned to them. 1.2.2.4 [RESERVED] 1.2.2.5 Maintain Records. CM/GC shall keep Owner informed of the progress of the Work. CM/GC shall maintain records of the cost for the Work pursuant to and in compliance with generally acceptable accounting requirements and such other methods as Owner may require, including but not limited to complete backup documentation for all pay applications. 1.2.2.6 Answer Questions. CM/GC, with reasonable promptness and in accordance with time limits set by Owner, shall answer Owner's questions and provide Owner with requested Project information. Section 1 – General Part 2 – CM/GC’s General Responsibilities and Duties 13 General Requirements 1.2.2.7 Acts and Omissions. Employees of or Subcontractors to the CM/GC shall perform the Work required by this Contract. The CM/GC is responsible to the Owner for acts and omissions of anyone directly or indirectly employed by CM/GC, any Subcontractor, and anyone for whose acts the CM/GC and any such Subcontractor may be liable. 1.2.2.8 Promptly Commence. Upon the Effective Date of the Contract, the CM/GC shall immediately commence and diligently pursue the performance of the Basic Services described in this Contract. 1.2.3 General Consultation Services. As a part of Basic Services, CM/GC shall provide the following consultation services to Owner: 1.2.3.1 Job Coordination Meetings. CM/GC shall schedule and conduct meetings with the Owner, Design Professional, Separate Contractors, and appropriate Subcontractors, not less than biweekly, for the purpose of discussing the status and progress of the Work. Such meetings shall be held as often as Owner determines. 1.2.3.2 Advice Concerning Revisions. CM/GC shall advise the Owner and Design Professional regarding proposed revisions in connection with Site use and improvements, selection of materials, building systems and equipment, construction feasibility, availability of materials and labor, time requirements for installation and construction, other factors related to costs (including costs of alternative designs or materials, preliminary budgets and possible economies), and scheduling of design and construction services, and perform and provide life-cycle costs and value engineering analyses and other studies for such purposes. 1.2.3.3 Advice and Assistance with Utilities. CM/GC shall advise and assist the Owner 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. 1.2.3.4 Advice on Market Conditions. The CM/GC shall consult with the Design Professional and provide advice as to construction market conditions and scheduling factors. 1.2.3.5 Names of Trade Contractors. The CM/GC, as soon as practicable after the commencement of this Contract, shall furnish to the Design Professional the written names of the persons or entities the CM/GC proposes to engage as Trade Contractors for the Project subject to such persons or entities being approved or deemed approved in accordance with provisions of the Contract Documents. 1.2.3.6 Names of Vendors. The CM/GC shall provide the Design Professional a list of contractors, and vendors whose services may be required in the purchasing of materials and services for the construction of the Project. 1.2.3.7 Tests, Studies, etc. The CM/GC shall notify the Design Professional of any tests, analyses, studies, or reports that may be required. 1.2.3.8 Easements, etc. If the CM/GC knows or learns of the need to obtain easements, or legal authorizations regarding Site utilization, the CM/GC shall promptly notify the Owner where essential to the execution of the Owner's Program. 1.2.4 Other Actions. CM/GC shall perform all other actions required in the supervision of the Work and the completion of the construction of the Project. Owner and CM/GC acknowledge that, in anticipation of the execution and delivery of this Contract, CM/GC has to date performed services and functions that fall within the duties and obligations of CM/GC pursuant to this Contract. CM/GC acknowledges and agrees that all such services and functions shall be deemed to have been performed pursuant to the terms and provisions of this Contract, and shall be subject to all duties and obligations of CM/GC to Owner under this Contract, and subject to the standard of care owing by CM/GC to Owner pursuant to this Contract. 1.2.5 Existing Documents. CM/GC recognizes the existence of existing documents prepared on behalf of the Owner and identified in Exhibit A. The CM/GC has carefully reviewed these documents and has determined them to be, at the time of execution of this Contract, consistent with the objectives to complete the project within the Guaranteed Maximum Price Cost Limitation and Material Completion Date, subject to completion of the Construction Documents 1.2.6 Duty to Give Notice to Owner. If the Owner, the Design Professional, or any other person with whom the Owner or Design Professional respectively has a direct contractual relationship, in the judgment of the CM/GC, acts, or fails to act in such a manner, as to (i) delay the progress of the construction of the Project or (ii) increase the cost of the Project, CM/GC shall give prompt notice to Owner so as to permit Owner to take corrective action. [Remainder of Page Intentionally Left Blank] Section 1 – General Part 3 – Owner’s Responsibilities and Rights 14 General Requirements PART 3 – OWNER’S RESPONSIBILITIES AND RIGHTS 1.3.1 Owner’s Representative. 1.3.1.1 Written Designation. The Owner may designate, in writing, a representative authorized to act on the Owner's behalf with respect to the Project. 1.3.1.2 Accessibility. The Owner's Representative shall be readily accessible (either on Site or by computer, phone or fax or otherwise) shall be fully acquainted with the Project, and shall have authority promptly to render decisions, approve Construction Documents, budgets, schedules and Change Orders and to furnish information required of or to be provided by the Owner hereunder; provided that such decisions and approvals altering the terms of this Contract or the Contract Documents or increasing the amount paid under this Contract in excess of the GMP must be approved by Resolution of the City of Milton City Council to be binding. 1.3.1.3 Independent Review and Inspection. The Owner may obtain independent review of the Contract Documents by a separate architect, engineer, contractor, or cost estimator under contract to or employed by the Owner. Such independent review shall be undertaken at the Owner's expense in a timely manner and shall not delay the orderly progress of the Work. The Owner may undertake independent inspection of the installation of the construction. Such independent inspector shall operate as the agent of the Owner in requiring the CM/GC to stop the Work in order to protect the best interests of the Project or the Owner. If any direction provided to CM/GC results work that is not or costs that are not part of the scope or responsibility of the CM/GC, CM/GC shall be entitiled to a Change Order reflecting all costs associated therewith. Any instruction by an Owner’s independent inspector to stop work shall be handled as set forth in Section 5, Part 1 of this Agreement. 1.3.2 Design Professional. 1.3.2.1 Design Professional to Design Work. The Design Professional Contract requires the Design Professional to design and to prepare the Drawings and Specifications, a copy of which shall be furnished to the CM/GC upon request. The Design Professional shall designate a readily accessible representative (either on Site or by computer, phone or fax or otherwise) who shall have authority promptly to render decisions and to furnish information required of the Design Professional. 1.3.2.2 Copies of Drawings and Specifications to CM/GC. In accordance with the Design Professional Contract the CM/GC may be furnished, free of charge, with access to current Drawings and Specification files and Rivit Model for CM/GC’s use in planning, estimating, bidding, contract administration and other contract administration activities. Further, the Design Professional Contract requires that the CM/GC be furnished, free of charge, one hard copy of the final Component Construction Documents for each Project Component, complete with original stamps and signatures. The CM/GC may obtain such additional sets of Drawings and Specifications as the CM/GC deems necessary and shall pay the cost of reproduction of such additional sets to the Design Professional. Any additional sets of Drawings and Specifications obtained by the CM/GC shall be obtained as part of the Basic Services, and CM/GC shall not request additional compensation from Owner related to such additional documents. 1.3.2.3 Contract Administration. The Design Professional shall provide periodic review of the Work to assess compliance with the Contract Documents. The Design Professional shall not be responsible for the safety of the Work; provided that the Design Professional shall report any identified safety issues immediately. The Design Professional is not the agent of the Owner, but is engaged as a consultant to the Owner to assist the Owner in determining if the conditions of the Contract have been met. Design Professional is the agent of the Owner only when and to the extent, in special instances, Design Professional is authorized in writing by the Owner to so act, and in such instances Design Professional shall, upon request, produce and show such written authority. Design Professional has authority to stop the Work whenever such stoppage may be necessary to seek the proper execution of the Contract or is in the best interest of the Owner. If any direction provided to CM/GC results work that is not or costs that are not part of the scope or responsibility of the CM/GC, CM/GC shall be entitiled to a Change Order reflecting all costs associated therewith. Any instruction by the Design Professional to stop work shall be handled as set forth in Section 5, Part 1 of this Agreement. 1.3.2.4 Impartial Decisions. The Design Professional is the interpreter of the conditions of this CM/GC Contract and the judge of its performance, in the first instance. The Design Professional shall side neither with the Owner nor with the CM/GC, but shall use its powers to enforce performance by both. 1.3.2.5 Design Professional Decisions. Design Professional’s decisions must be in writing and signed by the Design Professional of Record. Section 1 – General Part 3 – Owner’s Responsibilities and Rights 15 General Requirements 1.3.2.5.1 Promptness. The Design Professional shall make decisions within fourteen (14) calendar days after proper presentation of evidence on (1) any issue, Claim, or dispute of the Owner or CM/GC, or (2) a demand of the Owner or CM/GC for a decision on any matter relating to the execution or progress of the Work. 1.3.2.5.2 Additional Time. If, because of events beyond the Design Professional’s reasonable control, Design Professional is not able to meet the specified time period, then Design Professional may ask the Owner for additional time, which request shall not be unreasonably denied. 1.3.2.5.3 Protests of Design Professional’s Decisions. All decisions of the Design Professional on any Claim, dispute, or demand shall be final and binding on the Contract in the absence of written notice of protest from the CM/GC received by the Owner within fourteen (14) calendar days of the date the decision of the Design Professional is received by the CM/GC. See Section 5 Part 2. 1.3.2.6 Aesthetics. All decisions of the Design Professional on matters of aesthetics are final, conclusive, and binding on all parties if consistent with the requirements of the Contract Documents. 1.3.2.7 Succession. In case of the termination of the employment of the Design Professional, the Owner shall appoint a capable and reputable Design Professional against whom the CM/GC makes no reasonable objection and whose status under the Contract shall be that of the former Design Professional. 1.3.3 Permits, Licenses, and Inspections. The Owner shall cooperate with the CM/GC as the CM/GC secures building and other permits, licenses and inspections. 1.3.4 Testing. The Owner shall provide and pay for initial and subsequent independent construction testing as required by the Contract Documents. Laboratories for testing services shall be selected by, engaged by, and responsible to the Owner. In the case of tests (a) prescribed in the Contract Documents or any part thereof, or (b) requested by the Owner, the CM/GC must give notice to the selected testing agency stating the date and the hour when the CM/GC will be ready for the test to be made. In the event the test fails or the CM/GC is not ready for the test at the scheduled time, the expense of the services of the testing laboratory shall be deducted from the Contract Sum, upon notice to the CM/GC by the Owner accompanied by a copy of the invoice for the testing services for the test that failed or for which the CM/GC was not ready. The notice and readiness provisions of this article do not apply to verification of design mix on concrete. 1.3.5 Owner’s Independent Consultants. In the event the Owner, in its sole discretion, shall either itself perform or retain one or more independent consultants to provide peer review, expert opinion, or other analysis of design, the Construction Documents, or construction as performed in the field, the CM/GC agrees that any such review or analysis shall not constitute any admission by Owner concerning the adequacy, fitness, or completeness of the design, the Construction Documents, or the adequacy or compliance of the construction to the Specifications. Such consultant reports are expert opinion rendered solely to the Owner, and CM/GC may not use such consultant reports in connection with any Claim or legal action arising out of or related to the Project without the express written consent of the Owner, unless required by the provisions of the Civil Practice Act governing the designation and use of expert witnesses. 1.3.6 No Partial Occupancy. There shall be no partial occupancy by the Owner of the Project prior to the achievement of Final Completion. This provision may be modified by Change Order. 1.3.7 Disqualification of Potential “Pre-Qualified” Subcontractors. The Owner may disqualify for just cause any pre-qualified potential subcontractors identified in the Bidding Documents. Owner shall pay the difference in the cost of the Work necessarily resulting from such disqualification, provided that such difference in cost must be agreed to in writing by Owner prior to being incurred. 1.3.8 Owner’s Right to Perform Work. The Owner reserves the right to perform construction or operations related to the Project with Separate Contractors on the Site. If the CM/GC claims that delay or additional cost is caused by such action by the Owner, the CM/GC shall assert such Claims as provided in Section 5, Part 2 of the General Requirements. [Remainder of Page Intentionally Left Blank] Section 1 – General Part 4 – Protection of Persons and Property 16 General Requirements PART 4 – PROTECTION OF PERSONS AND PROPERTY 1.4.1 Reasonable Precautions. The CM/GC shall take reasonable precautions 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 the CM/GC or the CM/GC's Subcontractors; or (c) other property at or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation, replacement or other rearrangement in the course of construction. 1.4.2 Duty to Protect Property. The CM/GC shall continuously maintain adequate protection of the Work from damage and shall protect all other property on the Site from damage, injury, or loss regardless of who may be the owner of said property. CM/GC shall make good any such damage, injury, or loss. 1.4.3 Safety Precautions. The CM/GC shall comply with the rules and regulations of OSHA and the Department of Labor (See O.C.G.A. Section §34-2-6), and, where not inconsistent with the foregoing, the "Manual of Accident Prevention in Construction" issued by the Associated General Contractors of America, Inc., for safety and prevention of accidents, and shall maintain an accurate record of all cases of death, occupational disease, and injury requiring medical attention or causing loss of time from Work arising out of and in the course of employment on Work under the Contract. The CM/GC alone shall be responsible for the safety, efficiency, and adequacy of his plant, appliances, and methods, and for any damage that may result from their improper construction, maintenance, or operations. CM/GC shall erect and properly maintain at all times, as required by the conditions and progress of the Work, proper safeguards for the protection of workers and the public and shall post danger warnings against any hazards created by the construction operations. The CM/GC shall designate a responsible member of his organization, normally the superintendent, whose duty shall be the prevention of accidents. 1.4.4 Emergencies. In an emergency affecting the safety of persons or property or the Work or adjoining property, the CM/GC shall take reasonable precautions to prevent imminent damage, injury, or loss. 1.4.5 Fire Protection. CM/GC shall take adequate and reasonable precautions to protect the Work against damage by fire and smoke. For example, without limitation, CM/GC shall do the following: (a) Provide fire extinguishers or fire hoses in readily accessible locations; (b) Periodically inspect fire extinguishers, remove discharged extinguishers immediately, and replace with new or recharged extinguishers; (c) Keep fire extinguishers or fire hoses within five (5) feet of any welding or open flame operations; (d) 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. (e) Prohibit workers from smoking during operations involving combustible adhesives, solvents, mastics, or other fire hazard materials. 1.4.6 Remedy Damages. The CM/GC shall promptly remedy damages and loss to property at the Site or elsewhere caused by the CM/GC, by any Subcontractor, by anyone directly or indirectly employed by the CM/GC or any such Subcontractor, or by anyone for whose acts the CM/GC or any such Subcontractor may be liable. Should the CM/GC cause damage to any Separate Contractor‘s work, the CM/GC agrees, upon due notice, to settle with the Separate Contractor. 1.4.7 Written Programs. CM/GC shall have written environmental, quality control, crisis/emergency management, health and safety plans and programs in place with a designated (qualified) coordinator as the point of contact during the Project. Such plans shall be on the Site, and the superintendent and the Project management team shall be familiar with and utilize such programs. [Remainder of Page Intentionally Left Blank] Section 1 – General Part 5 – Bonds, Indemnity and Insurance 17 General Requirements PART 5 – BONDS, INDEMNITY AND INSURANCE 1.5.1 Bonds 1.5.1.1 Required Bonds. 1.5.1.1.1 Performance Bond and Payment Bond. The CM/GC shall furnish both a performance bond and a payment bond in the exact form set forth in Section 7 (Forms) of these General Conditions. Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under this Contract, the CM/GC shall promptly furnish a copy of the bonds or shall permit a copy to be made. 1.5.1.1.2 Intentionally Omitted. 1.5.1.1.3 Five Year Bond of Roofs and Walls. The CM/GC shall furnish a Five Year Bond on Roofs and Walls in the exact form set forth in Section 7 (Forms) of these General Conditions and in the penal sum of the Actual Cost of the walls, wall cladding, wall insulation, roof, insulation and roof deck, but not less than the amount shown as in the approved initial breakdown for these roof and wall systems. 1.5.1.2 Required Qualifications for Surety. The surety and insurance companies must be acceptable to the Owner. Only those sureties listed in the Department of Treasury’s Listing of Approved Sureties (Department Circular 570) are acceptable to the Owner. 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 A.M. Best Rating of "A-" or better and with a financial size rating of Class VII or larger. 1.5.1.3 Penal Amount of Bonds, State Law. The CM/GC acknowledges and agrees that, pursuant to O.C.G.A. §§ 36-91-40, 36-91-70 and 36-91-90, the performance bond and the payment bond must be in a penal amount equal to at least 100% of the GMP Cost Limitation or GMP when established. Accordingly, the CM/GC warrants and agrees that, for any Change Order increasing the GMP by five (5) percent or more, or when the total Cost of the Work has increased by five (5) percent or more, it shall obtain a written amendment to the payment bond and the performance bond increasing the penal amounts of both bonds to 100% of the GMP, effective as of the date of the Change Order. The premium increase, if any, may be properly included in the cost of the Change Order. The Design Professional shall approve no payment for the Work provided by the Change Order until the CM/GC has provided the written amendment to the Owner. 1.5.1.4 Changes in Surety Status. The Owner may require the CM/GC to strengthen any or all of the bonds or to furnish a new or additional bond or bonds within ten (10) days if any of the following occurs, in the judgment of the Owner, during the term of this Contract: (1) Any surety on a bond has become insolvent; (2) Any corporate surety is no longer certified or approved by the Commissioner of Insurance to do business in the state; or (3) For any cause there are no longer proper or sufficient sureties on any or all of the bonds. Thereupon, if so ordered by the Owner, CM/GC shall cease all Work on the Contract unless such new or additional bond or bonds are furnished. If such bond or bonds are not furnished within such time, the Owner may terminate this Contract for cause pursuant to Article 5.3.2. 1.5.2 Liability and Indemnification. 1.5.2.1 General Liability. CM/GC covenants and agrees to take and assume all responsibility for the W ork rendered in connection with this Contract. CM/GC shall bear all losses and damages directly or indirectly resulting to it and/or the Owner on account of the performance or character of the Work rendered pursuant to this Contract. The CM/GC shall be responsible to the Owner from the time of the signing of this Contract or the beginning of the first Work, whichever shall be earlier, for all injury or damage of any kind resulting from any negligent act or omission or breach, failure or other default regarding the Work by the CM/GC, or any of its Subcontractors, its agents, employees or others working at the direction of the CM/GC or on its behalf, regardless of who may be the owner of the property. 1.5.2.2 Indemnification Agreement. To the fullest extent permitted by law, the CM/GC shall indemnify and hold harmless the Owner and Owner Parties (collectively “Indemnitees”) from and against liability, claims, damages, losses and expenses, including attorneys’ fees, arising out of or resulting from performance of the work, provided that such liability, claims, damage, loss or expense is attributable to bodily injury, sickness, disease or death, to injury to or destruction of tangible property (other than the work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by willful or negligent acts or Section 1 – General Part 5 – Bonds, Indemnity and Insurance 18 General Requirements omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable. 1.5.2.2.1 This indemnification does not extend to claims for losses or injuries or damages incurred directly by the Indemnitees due to the sole negligence of any Indemnitee. 1.5.2.2.2 This indemnification shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this provision. 1.5.2.2.3 In any and all claims against the Indemnitees by any employee of the CM/GC, any Subcontractor, anyone directly or indirectly employed by CM/GC or Subcontractor, or anyone for whose acts the CM/GC or Subcontractor may be liable, the indemnification obligation set forth in this provision shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the CM/GC or any Subcontractor under workers’ or workmen’s compensation acts, disability benefits acts, or other employee benefit acts. 1.5.2.3 This indemnification does not extend to claims for losses or injuries or damages incurred by the Indemnitees due to any negligent act, error, or omission of a design professional in the performance of professional services that fails to meet the applicable professional standard of care, skill and ability as employed by others in their profession, provided that to the extent CM/GC worked with the Design Professional or should have reasonably known of the issue prior to such damage or injury being incurred, CM/GC shall be liable for its own actions or omissions related thereto. 1.5.2.4 Suits or Claims for Infringement. The CM/GC shall defend, indemnify, and hold the Owner harmless from any suits or claims of infringement of any patent rights or copyrights arising out of any patented or copyrighted materials, methods, or systems used by the CM/GC. 1.5.2.5 Survival. This obligation to indemnify, defend, and hold harmless the Owner and Indemnities shall survive expiration or termination of this Contract, provided that the claims or other Liabilities are based upon or arise out of action that occurred during the performance of this Contract. 1.5.3 Insurance Requirements. 1.5.3.1 Requirements: The CM/GC shall have and maintain in full force and effect for the duration of this Contract, insurance insuring against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the W ork by the CM/GC, its agents, representatives, employees and Subcontractors. The CM/GC’s Completed Operations coverage should be in place for at least three (3) years after completion of the Project. All policies shall be subject to approval by the Owner as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City of Milton City Council. 1.5.3.2 Required Insurance Coverage and Minimum Limits of Insurance: The CM/GC agrees to purchase and maintain, and have the authorized agent state on the insurance certificate that the CM/GC has purchased, the following types of insurance policies with coverage and limits no less than the amount provided below: (a) Commercial General Liability Insurance. The CM/GC shall maintain Commercial General Liability Insurance (2002 or 2003 ISO Occurrence Form or equivalent) that shall include, but need not be limited to, coverage for bodily injury and property damage arising from premises and operations liability (including operations of independent contractors engaged in construction), products and completed operations liability, blasting and explosion, collapse of structures, underground damage, personal injury liability and contractual liability. The Commercial General Liability policy must include separate limits per Project and shall provide at minimum the following limits: (1) Premises and Operations $1,000,000 (one million dollars) per occurrence (2) Products and Completed Operations $1,000,000 (one million dollars) per occurrence Section 1 – General Part 5 – Bonds, Indemnity and Insurance 19 General Requirements (3) Bodily and Personal Injury $1,000,000 (one million dollars) per (including but not limited to occurrence sickness, disease or death, injury to or destruction of property, including loss of use resulting thereform) (4) Contractual $1,000,000 (one million dollars) per occurrence (5) General Aggregate $2,000,000 (two million dollars) per project Additional Requirements for Commercial General Liability Insurance are shown below at Paragraph 1.5.3.4. (b) Commercial Business Automobile Liability Insurance. The CM/GC shall provide Commercial Business Automobile Liability Insurance that shall include coverage for bodily injury and personal injury, including but not limited to death, and injury to or destruction of property, including but not limited to loss of use resulting therefrom, arising from the operation of any owned, non-owned, or hired automobile. The Commercial Business Automobile Liability Insurance Policy shall provide not less than $1,000,000 (one million dollars) Combined Single Limits for each accident. Additional Requirements for Commercial Business Automobile Liability Insurance are shown below at Paragraph 1.5.3.4. (c) Commercial Umbrella Liability Insurance. The CM/GC shall provide a Commercial Umbrella Liability Insurance to provide excess coverage above the Commercial General Liability, Commercial Business Automobile Liability and the Workers' Compensation and Employers' Liability to satisfy the minimum limits set forth herein. The umbrella coverage shall follow form with the Umbrella limits required as follows: $2,000,000 per Occurrence $10,000,000 Aggregate Additional Requirements for Commercial Umbrella Liability Insurance are shown below at Paragraph 1.5.3.4. (d) Professional Liability Insurance. The CM/GC shall provide Professional Liability Insurance of not less than $1,000,000 (one million dollars) Combined Single Limit for each incident for claims arising out of professional services and caused by the CM/GC’s errors, omissions, or negligent acts. (e) Builder’s Risk Insurance. CM/GC shall provide a Builder’s Risk Insurance Policy to be made payable to the Owner and CM/GC, as their interests may appear. The policy amount shall be equal to 100% of the Contract Sum or $2,000,000 (whichever is greater), written on a 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: i) Furniture and equipment may be delivered to the insured premises and installed in place ready for use; and ii) Partial or complete occupancy by Owner; and iii) Performance of Work in connection with construction operations insured by the Owner, by agents or lessees, or other contractors of the Owner.” (f) Workers' Compensation Insurance. The CM/GC 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/GC qualifies to pay its own workers’ compensation claims. The CM/GC shall require all Subcontractors performing Work under this Contract to obtain an insurance certificate showing proof of Workers' Compensation Coverage and shall submit a certificate on the letterhead of the CM/GC in the following language: Section 1 – General Part 5 – Bonds, Indemnity and Insurance 20 General Requirements This is to certify that all Subcontractors performing Work on this Project are covered by their own workers' compensation insurance or are covered by the CM/GC’s workers’ compensation insurance. (g) Employers’ Liability Insurance. The CM/GC shall also maintain Employer's Liability Insurance Coverage with limits of at least: (i) Bodily Injury by Accident $1,000,000 each accident; (ii) Bodily Injury by Disease $1,000,000 each employee; and (iii) Bodily Injury/Disease Aggregate $1,000,000 each accident. The CM/GC shall require all Subcontractors performing Work under this Contract to obtain an insurance certificate showing proof of Employers Liability Insurance Coverage and shall submit a certificate on the letterhead of the CM/GC in the following language: This is to certify that all Subcontractors performing Work on this Project are covered by their own Employers Liability Insurance Coverage or are covered by the CM/GC’s Employers Liability Insurance Coverage. 1.5.3.3 Deductibles and Self-Insured Retentions: All deductibles shall be paid by the CM/GC. Except for qualified self-insurers or group self-insurers, self-insured retention in any policy shall not exceed $100,000.00. Any deductibles or self-insured retentions must be declared to and approved by the Owner so that the Owner may ensure the financial solvency of the CM/GC; these should be included on the certificate of insurance. 1.5.3.4 Additional Requirements for Commercial Policies in Paragraphs 1.5.3.2 (a) through (c). (a) The policy shall name as additional Insureds the Owner and Owner Parties. (b) The policy must be on an "occurrence” basis. 1.5.3.5 Insurance Certificates and Required Endorsements. 1.5.3.5.1 Insurance Certificates. The CM/GC shall procure the insurance coverages identified above at the CM/GC’s expense (i.e. within GMP) and shall furnish the Owner insurance certificates and endorsements to the policies evidencing coverage required by this Section prior to the start of Work and within ten (10) days of execution of this Contract. The certificates of insurance shall list the Owner as certificate holders and as additional insureds, as required herein. The certificates of insurance and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. Evidence of insurance coverages shall be provided on the Certificate of Insurance shown in Section 7 or on a similar form approved for use by the Georgia Commissioner of Insurance that provides following: (a) Name and address of authorized agent (b) Name and address of insured (c) Name of insurance company(ies) (d) Description of policies (e) Policy Number(s) (f) Policy Period(s) – effective date and expiration date (g) Limits of liability (h) Name and address of Owner as certificate holder (i) Project Name and Number (j) Signature of authorized agent (k) Telephone number of authorized agent (l) Mandatory thirty (30) day notice of cancellation or non-renewal (except ten (10) days for non payment of premium). The Owner reserves the right to require complete, certified copies of all required insurance policies at any time. The CM/GC shall provide proof that any expiring coverage has been renewed or replaced prior to the expiration of the coverage. The CM/GC is responsible for any delay resulting from the failure of his insurance carriers to furnish proof of proper coverage in the prescribed form. Section 1 – General Part 5 – Bonds, Indemnity and Insurance 21 General Requirements 1.5.3.5.2 Special Commercial General Liability Endorsement. The CM/GC shall cause its insurer to issue a special endorsement identifying this Project and this CM/GC Contract on the schedule of covered projects. The Owner’s name should be entered in the blank and the special endorsement attached to the Certificate of Insurance. 1.5.3.5.3 Other Insurance Provisions: The policies specified below shall contain, or be modified or endorsed to contain, the following provisions: (a) General Liability and Automobile and Umbrella Liability Coverage. (i) Additional Insured Endorsement. The CM/GC shall cause its insurer to issue an additional insured Endorsement on ISO Form CG 20 10 11 85 (“Additional Insured – Owners, Lessees or Contractors – Scheduled Person or Organization”), or its equivalent, naming the Owner and Owner Parties as additional insureds. If the insurer uses ISO Form CG 20 10 only, then the form must expressly provide for continued operations coverage and provide substantially similar coverages as ISO Form CG 20 10 11 85. The coverage shall contain no special limitations on the scope of protection afforded to the Owner and Owner. (ii) Contribution. The CM/GC’s insurance coverage shall be primary and noncontributing insurance as respects to any other insurance or self-insurance available to the Owner or Owner Parties. Any insurance or self-insurance maintained by the Owner and Owner Parties shall be in excess of the CM/GC’s insurance and shall not contribute with it. (iii) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Owner and Owner Parties. (iv) Coverage shall state that the CM/GC’s insurance shall apply separately to each insured against whom claim is made or suit is brought. (v) Coverage shall be provided on a “pay on behalf” basis, with defense costs payable in addition to policy limits. There shall be no cross liability exclusion. (vi) The insurer shall agree to waive all rights of subrogation against the Owner and Owner Parties for losses arising from Work performed by the CM/GC for the Owner. (vii) All endorsements to policies shall be executed by an authorized representative of the insurer. (b) Workers' Compensation Coverage. The insurer providing Workers’ Compensation Coverage will agree to waive all rights of subrogation against the Owner and Owner Parties for losses arising from work performed by the CM/GC for the Owner. (c) All Coverages. Policies shall have concurrent starting and ending dates. 1.5.3.6 Insurer Qualifications, Insurance Requirements. Each of the insurance coverages required above (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 an insurer (or, for qualified self-insureds or group self-insureds, a specific excess insurer providing statutory limits) with a A.M. Best Rating of "A-" or better and with a financial size rating of Class VII or larger. Further, each such policy shall contain the following provisions: 1.5.3.6.1 The insurance company agrees that the policy shall not be canceled, suspended, voided, changed, allowed to lapse or allowed to expire until thirty (30) days (ten (10) days if due to nonpayment) after the Owner has received written notice thereof, as evidenced by return receipt of certified mail or statutory mail, or until such time as other insurance coverage providing protection equal to protection Section 1 – General Part 5 – Bonds, Indemnity and Insurance 22 General Requirements called for in this Contract shall have been received, accepted and acknowledged by the Owner. Such notice shall be valid only as to the Project as shall have been designated by Project Number and Name in said notice. 1.5.3.6.2 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, employees, agents or other representatives ("Separation of Insureds"). 1.5.3.7 Claims-Made Policies: CM/GC shall extend any claims-made insurance policy for at least three (3) years after termination or final payment under the Contract, whichever is later. 1.5.3.8 Subcontractors: CM/GC shall include all Subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each Subcontractor. All coverage for Subcontractors shall be subject to all of the requirements stated in this Contract, including, but not limited to, naming the parties as additional insureds. [Remainder of Page Intentionally Left Blank] Section 1 – General Part 6 – Hazardous Conditions and Materials 23 General Requirements Part 6 – Hazardous Conditions and Materials 1.6.1 Hazardous Materials. 1.6.1.1 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 USC § 9601 et seq., and regulations promulgated thereunder (collectively "CERCLA") and any corresponding state or local law or regulation, and shall also 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 USC § 6901 et seq., and regulations promulgated thereunder (collectively "RCRA") and any corresponding state or local law or regulation; (c) crude oil, petroleum and fractions of distillates thereof and petroleum releases; (d) any other material, substance or chemical defined, characterized or regulated as toxic or hazardous under any applicable law, regulation, ordinance, directive or ruling, including, but not limited to, Asbestos or polychlorinated biphenyl (PCB); and (e) any infectious or medical waste or environmental contamination as defined by any applicable federal or state laws or regulations. 1.6.1.2 Obligation to Notify Owner of Existing Hazardous Materials. The CM/GC shall immediately notify the Owner and the Design Professional, both 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 it becomes aware. If the CM/GC encounters Hazardous Materials on the Project Site, the CM/GC shall (i) immediately stop performance of 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 or Supplier to proceed, with any Work or other activities in the area affected by such Hazardous Materials until such materials have been properly remediated and until directed in writing to do so by the Owner; and, (v) take any other steps necessary to protect life and health and the surrounding environment. The CM/GC shall be entitled to adjustment of the Contract Time and the Contract Sum pursuant to the General Requirements in order to compensate for the impact of any required demolition, re-work, shutdown, delay, protection of Work, disruption, and start-up resulting from the encountering of such Hazardous Materials on the Project Site for which the CM/GC is not responsible, provided that such adjustments must be agreed to in writing by Owner prior to becoming effective. 1.6.1.3 Prohibition Against Selecting and Installing Products Containing Hazardous Materials. The CM/GC shall not select, install or otherwise incorporate any products or materials containing Hazardous Materials within the boundaries of the Project Site, unless the products and materials are specifically required in the Contract Documents, in which case the CM/GC shall notify Owner of such Hazardous Materials it is aware of prior to incorporating such products or materials into the Project. Should the CM/GC or his Subcontractors or material Suppliers have knowledge that, or believe that, an item, component, material, substance, or accessory within a product or assembly selected by the CM/GC may contain Hazardous Materials, it is the CM/GC’s responsibility to secure a written certification from the manufacturer of any suspected material which identifies the specific Hazardous Material(s) contained, together with the Material Safety Data Sheets (MSDS) for such materials. A copy of the written certification shall be submitted to the Owner and Design Professional. 1.6.1.4 Fill, Backfill and Landscaping. No soil found on Site, or transported to the Site from remote locations, which contains debris or waste or Hazardous Materials shall be used for fill, backfill or landscaping topsoil. 1.6.2 Responsibility and Warranty of Trade Contractors, Suppliers, and Subcontractors. Products that are specified by reference standards or in descriptive manner without a manufacturer’s name, model number or trade name, to be selected by the CM/GC, shall not contain Hazardous Materials in any form, except as and to the extent permitted in 1.6.1, above, and 1.6.3, below. The CM/GC shall require that each of his Subcontractors and material Suppliers warrant to the Owner and Design Professional that all materials, products and assemblies, other than those which are specifically and expressly required by the Contract Documents, incorporated, or submitted for incorporation into this Project are free of Hazardous Materials. This warranty shall also 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. 1.6.3 Hazardous Materials and Substances Used On the Job Site. Products containing Hazardous Materials may be employed in the performance of Work by the CM/GC and its Subcontractors as allowed above, as a means and methods application or as part of its performance of the Work, such as chemicals used on the job Site, but only if: (i) such products are used in accordance with the manufacturer’s instructions and Material Safety Data Sheets; (ii) such products are rendered harmless upon completion of the affected W ork; (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 but not limited to the ultimate users of the completed Work; (iv) the CM/GC shall make available to the Owner and the Design Professional copies of Section 1 – General Part 6 – Hazardous Conditions and Materials 24 General Requirements Material Safety Data Sheets (MSDS) for any such products used on the job Site, and (v), the CM/GC shall immediately notify Owner, Design Professional and appropriate regulatory agencies if there is a spill or release or misuse of any such product used on the job Site that exceeds State or Federal reportable limits. 1.6.4 Hazardous Conditions. The CM/GC and Owner acknowledge that previously unknown hazardous conditions may be uncovered at any job Site, and in particular where existing structures are being demolished and/or remodeled to accommodate new construction or to reutilize existing facilities. Should a hazardous condition not involving Hazardous Materials as set forth above be encountered on the Project Site, and should reasonable safety precautions be deemed by the CM/GC in good faith to be inadequate to prevent foreseeable personal injury to persons encountering the hazardous condition, the CM/GC shall, upon recognizing the hazardous condition, stop Work in the affected area and immediately report the hazardous condition to the Design Professional and Owner in writing. The Owner shall undertake, or shall contract (by Change Order) with the CM/GC or contract with a Separate Contractor, to resolve the condition. So long as the hazardous condition did not result from activities or substances brought on the Site by the CM/GC, the CM/GC shall be entitled to adjustments in the Contract Time and the Contract Sum as set forth in Paragraph 1.6.1.2 above, provided that such adjustments must be agreed to in writing by Owner prior to becoming effective. [Remainder of Page Intentionally Left Blank] Section 1 – General Part 7 – Miscellaneous Provisions 25 General Requirements PART 7 – MISCELLANEOUS PROVISIONS. 1.7.1 Legal Compliance. 1.7.1.1 General. This Contract shall be governed by and construed under the laws of the State of Georgia. The CM/GC shall comply with all laws, rules, regulations, ordinances, and orders of any government agency having jurisdiction in the performance of the Basic Services and the Work and shall ensure the compliance of its Subcontractors. CM/GC shall also perform its services in accordance with the usual and customary standards of the CM/GC’s profession or business. The CM/GC and the Owners acknowledge that it is prohibited for any person to offer, give, or agree to give any City of Milton employee or official, or for any City of Milton employee or official to solicit, demand, accept, or agree to accept from another person, a gratuity of more than nominal value or rebate or an offer of employment in connection with any decision, approval, disapproval, recommendation, or preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to any program requirement or a contract or subcontract, or to any solicitation or proposal therefor. The CM/GCand the Owner further acknowledge that it is prohibited for any payment, gratuity, or offer of employment to be made by or on behalf of a sub-consultant under a contract to the prime consultant or higher tier sub-consultant, or any person associated therewith, as an inducement for the award of a subcontract or order. 1.7.1.2 Specific Laws. Without limiting the generality of the foregoing Paragraph, the CM/GC specifically agrees to comply with the following laws as specifically referenced (and any related rules and regulations): 1.7.1.2.1 Intentionally Omitted. 1.7.1.2.2 O.C.G.A. § 36-91-21. 1.7.1.2.3 Preference for Georgia forest products, O.C.G.A. § 50-5-63. 1.7.1.2.4 Intentionally Omitted. 1.7.1.2.5 Standards and Requirements for Construction, Alterations, etc., O.C.G.A. § 8-2-1, et seq. 1.7.1.2.6 Control of Soil Erosion and Sedimentation, O.C.G.A. § 12-7-1, et seq. 1.7.1.2.7 Regulation of Fire and other Hazards (See O.C.G.A. § 25-2-1 et seq. and applicable Rules and Regulations). 1.7.1.2.8 Regulation of Blasting Operations (See O.C.G.A. § 25-8-1, et seq. and 25-9-1, et seq. and applicable Rules and Regulations). 1.7.1.2.9 Providing safe workplace, O.C.G.A. §§ 34-2-10 and 34-7-20. 1.7.1.2.10 Georgia Facility Protection Act, O.C.G.A. § 25-9-1, et seq. 1.7.1.2.11 High Voltage Safety Act, O.C.G.A. § 46-3-30, et seq. 1.7.1.2.12 Access and Use by Physically Handicapped Persons, O.C.G.A. § 30-3-1, et seq. 1.7.1.2.13 Intentionally Omitted. 1.7.1.2.14 Intentionally Omitted. 1.7.1.2.15 Title VI and Title VII of the Civil Rights Act, 42 U.S.C. § 2000a through 2000h-6 1.7.1.2.16 Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.; 42 U.S.C. § 6101, et seq. 1.7.1.2.17 Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. 1.7.1.2.18 Federal Occupational Safety and Health Act, 29 U. S. C. § 651, et seq. Section 1 – General Part 7 – Miscellaneous Provisions 26 General Requirements 1.7.1.2.19 Federal Emergency Planning and Community Right-to-Know Act, 42 U. S. C. § 11001, et seq. 1.7.1.2.20 Georgia Open Records Act, O.C.G.A. §50-18-70, et seq. 1.7.1.2.21 Intentionally Omitted. 1.7.1.2.22 Scaffolding and Staging Statute, O.C.G.A. §25-15-110, et seq. 1.7.1.2.23 Department of Labor Rules and Regulations (See O.C.G.A. § 34-2-6 et seq. and applicable Rules and Regulations). 1.7.1.2.24 Hazardous Chemical Protection and Right to Know Act, O.C.G.A. § 45-22-2 et seq. 1.7.1.2.25 Retainage on Public Works Contracts, 0.C.G.A. §13-10-80, et seq. 1.7.1.2.26 Compliance with “federal work authorization programs” and federal Immigration Reform and Control Act of 1986 by Georgia Public Employers, contractors and subcontractors, O.C.G.A. §13-10-90 et seq.. 1.7.1.3 Building Codes. The following Building Codes, as well as any other applicable building codes, regulations or guidelines, in the latest editions approved by the Georgia Department of Community Affairs, or any other applicable state or local government entity, shall be used. (See O.C.G.A. §8-2-20, et seq. and related Rules and Regulations) As of the year 2000, these codes are published jointly by the Southern Building Code Congress International, the International Code Council, the Building Officials and Code Administrators, International, and the International Conference of Building Officials, and are commonly referred to as the International Building Codes. 1.7.1.3.1 Georgia State Minimum Standard Building Code (International Building Code with Georgia State Amendments). 1.7.1.3.2 Georgia State Minimum Standard Mechanical Code (International Mechanical Code with Georgia State Amendments). 1.7.1.3.3 Georgia State Minimum Standard Gas Code (International Fuel Gas Code with Georgia State Amendments). 1.7.1.3.4 Georgia State Minimum Standard Plumbing Code (International Plumbing Code with Georgia State Amendments). 1.7.1.3.5 Georgia State Minimum Standard Electric Code (National Electrical Code with Georgia State Amendments). 1.7.1.3.6 Georgia State Minimum Standard Energy Code (International Energy Conservation Code with Georgia State Supplements and Amendments). 1.7.1.3.7 Georgia State Minimum Standard Fire Prevention Code (International Fire Code with Georgia State Amendments). 1.7.1.4 Fire, Life Safety, and Accessibility Codes. The following codes, in addition to any other applicable codes, rules and regulations, in the versions approved by the Georgia State Fire Marshal/Fire Safety Commissioner and Department of Human Resources, shall be used. 1.7.1.4.1 Georgia State Life Safety Code (NFPA 101) 1.7.1.4.2 State Accessibility Codes (See O.C.G.A. §30-3-3) 1.7.1.4.3 Rules and Regulations of the Georgia Safety Fire Commissioner (See O.C.G.A. §§ 25-2-4,12.) Section 1 – General Part 7 – Miscellaneous Provisions 27 General Requirements 1.7.1.5 Latest Edition. The latest edition approved by the implementing agency of the regulations, rules, and codes listed in Paragraphs 1.7.1.3 and 1.7.1.4 above, with all amendments as of the date of the opening of bids, shall govern the installation of all Work and is adopted and incorporated into the Contract Documents and made a part thereof by reference; provided, however, that the Drawings and Specifications shall be adhered to in all cases where they call for quality of materials, quality of workmanship, or quality of construction which is equal to or in excess of the quality required by the above stated codes; and provided further that there may be no variances from the Drawings and Specifications except to the extent that the said variances shall be necessary in order to comply with the above stated codes. It shall be the responsibility of the CM/GC to familiarize himself with the requirements of the above stated codes. If there are any express requirements in the Drawings or Specifications that are at variance to the above stated codes, all changes in the Work necessary to eliminate or add to the said requirements and make the Work conform to the above stated codes shall be completed as provided in the Contract for changes in the Work; provided that all such changes must be approved by Owner in writing prior to becoming effective. 1.7.1.6 Compliance with Federal and State Work Authorization and Immigration Laws. 1.7.1.6.1 E-Verify. The CM/GC and all Subcontractors, Suppliers and consultants must comply with all federal and state work authorization and immigration laws, and must certify compliance using the form set forth in Section 7 (“Affidavit and Certificate of Compliance – Federal and State Work Authorization”). Such form shall be used to certify that the CM/GC is compliant with O.C.G.A. § 13-10-90, et seq., Georgia Department of Labor Rule 300-10-1-.01, and the U.S. Immigration Reform and Control Act of 1986 (IRCA), P.L. 99-603, and that Contractor has, within the previous twelve (12) month period, conducted a verification, under the federal Employment Eligibility Verification (“EEV” or “E-Verify”) program, of the social security numbers, or other identifying information now or hereafter accepted by the E-Verify program, of all employees who will perform Work pursuant to this Contract to ensure that no unauthorized aliens will be employed. The CM/GC hereby verifies that it has, prior to executing this Contract, executed a notarized affidavit, the form of which is provided in Section 7, and submitted such affidavit to the Owner. (The CM/GC acknowledges that each entity acting as the CM/GC pursuant to this Contract must separately execute and submit such affidavit to the Owner.) The required certificates must be filed with the Owner and copies maintained by the CM/GC as of the beginning date of this Contract and each subcontract, Supplier contract, and consultant contract. Further, CM/GC agrees that it shall maintain compliance with such requirements, and ensure compliance by its Subcontractors, during the term of this Contract. In the event the CM/GC employs or contracts with any Subcontractor(s) in connection with this Contract, the CM/GC agrees to secure from such Subcontractor(s) attestation of the Subcontractor’s compliance with O.C.G.A. § 13-10-91 and Rule 300-10-1-.02 by the Subcontractor’s execution of the subcontractor affidavit, the form of which is included in Section 7, prior to the commencement of work by the Subcontractor, and such Subcontractor affidavit shall become part of the contractor/subcontractor agreement. Further, CM/GC agrees to provide completed copies of such Subcontractor affidavit to the Owner within five (5) Business Days from receipt from any Subcontractor. Owner retains the right to inspect, or send a designee to inspect, and audit the Project Site and employment records of the CM/GC, Subcontractors and consultants without notice during normal working hours until Final Completion, and as otherwise specified by law and by Rules and Regulations of the Georgia Department of Labor. CM/GC and CM/GC’s Subcontractors shall retain all documents and records of their respective verification process for a period of five (5) years following Final Completion. CM/GC agrees that the employee-number category designated below is applicable to the CM/GC: New South Construction Company, Inc.: Initials Number of Employees __________ Over 500 employees __________ 100 to 499 employees __________ 11 to 99 employees Section 1 – General Part 7 – Miscellaneous Provisions 28 General Requirements CM/GC hereby agrees that, in the event CM/GC employs or contracts with any Subcontractor(s) in connection with this Contract, the CM/GC will secure from the Subcontractor(s) such Subcontractor(s’) indication of the above employee-number category that is applicable to the Subcontractor. 1.7.2 Surveys, Permits, and Regulations. The Owner shall furnish all surveys unless otherwise specified. Permits and licenses of a temporary nature necessary for the prosecution of the Work shall be obtained and paid for by the CM/GC. Permits, licenses, and easements for permanent structures or permanent changes in existing facilities shall be obtained and paid for by the Owner unless otherwise specified. The CM/GC and its Subcontractors must pay any municipal or city occupational licenses, taxes, or fees, if any. The CM/GC shall give all notices and comply with all laws, ordinances, rules, and regulations bearing on the conduct of the Work. If the CM/GC observes that the Drawings or Specifications are at variance with any such laws, ordinances, rules or regulations, he shall promptly notify the Owner in writing, and any necessary changes shall be adjusted as provided in the Contract for changes in the Work. If the CM/GC performs any Work knowing it to be contrary to such laws, ordinances, rules or regulations without such notice to the Owner, he shall bear all costs arising therefrom, including but not limited to the cost to bring such Work into compliance. Nothing in this paragraph shall be construed to impose design responsibility on the CM/GC except as noted in the Contract Documents. 1.7.3 Open Records Act. Owner and Design Professional and CM/GC acknowledge and agree that all records of the Project and the Work, including but not limited to records of Subcontractors, are subject to the Georgia Open Records Act, O.C.G.A. §50-18-70, et seq., with particular attention being called to O.C.G.A. §50-18-70(a) regarding the records of private persons, firms, corporations, or other private entity engaged in performance of services or functions on behalf of a public agency or public office. 1.7.4 Use of Site. The CM/GC has a revocable license to come on, use, and perform Work upon the Premises, shall confine thereto his plant, his apparatus, the staging and storage of materials, the operations of his forces and the Work to limits indicated by law, ordinances, permits, or the Contract Documents, and shall not unreasonably encumber the Premises with his materials. The CM/GC shall not load or permit any part of the Work to be loaded with weight that will endanger its safety. The CM/GC shall enforce Contract requirements regarding signs, advertisements, fires, and smoking and shall remove from the Premises and properly dispose all trash and debris. 1.7.5 [RESERVED] 1.7.6 Utilities. Pending the extension and connection of permanent water, permanent gas, permanent sewer taps, and permanent electric power, the CM/GC shall obtain temporary water, temporary gas, temporary electric power, and provide sewage disposal at his own expense. In the absence of provisions to the contrary, the CM/GC shall pay for all utilities services until Final Completion has been achieved. 1.7.7 Royalties and Patents. The CM/GC shall pay all royalties and license fees. He shall defend all suits or claims for infringement of any patent rights and shall indemnify and hold the Owner harmless from loss on account thereof. 1.7.8 Separate Contracts. The Owner reserves the right at any time and from time to time upon notice to CM/GC to perform, or cause to be performed by other contractors, other work at the Site in connection with the development of the Project that is not contemplated hereby or that is contemplated hereby if the CM/GC and the Owner shall be unable to agree upon a Change Order incorporating such work as Work of the CM/GC under this Contract. In either case, the Owner shall assure that such personnel or contractors do not cause any conflict with the Work of CM/GC. CM/GC shall afford the Owner and other contractors reasonable opportunity for the introduction, protection, and storage of material and equipment at the Site and the execution of Work, and shall properly connect, if required by Contract Documents, and coordinate its Work with theirs. If any work by the Owner or its other contractors increases CM/GC's costs or extends the time of performance, CM/GC shall be entitled, upon timely Claim, to a Change Order for payment by Owner of any reasonable costs actually incurred by CM/GC as a result thereof and to an extension of time for performance for such reasonable time as the Design Professional shall determine, provided that such additional costs and extension of time must be approved by Owner prior to being incurred. CM/GC has no responsibility hereunder to certify the suitability or correctness of any Work performed by Owner's own personnel or other contractors under direct contract with the Owner. This Article also applies to installation of loose equipment and fixtures by the Owner or a Separate Contractor. 1.7.9 Records, Reports Access, and Audits. (1) Records: Section 1 – General Part 7 – Miscellaneous Provisions 29 General Requirements (a) CM/GC shall oversee the receipt of all materials, the use of all equipment, and the doing of all labor entering into the performance of the Work; shall retain all invoices, checks and other records showing billing and payment for materials, equipment and labor going into the performance of the Work; shall maintain books of account with respect to the performance of the Work; and shall require its Subcontractors, Trade Contractors, and Trade Suppliers to maintain similar records throughout the Project and for a period of four (4) years from the date of Final Completion. Furthermore, records that are the subject of audit findings shall be retained for three (3) years or until such audit findings have been resolved, whichever is later. (b) All costs shall be supported by properly executed payrolls, time records, invoices, contracts, or vouchers, or other official documentation evidencing in proper detail the nature and propriety of the charges. All checks, payrolls, invoices, contracts, vouchers, orders, or other accounting documents pertaining in whole or in part to this Contract shall be clearly identified and readily accessible. (2) Reports and Information: Upon request, the CM/GC shall furnish to the Owner any and all statements, records, reports, data, and information related to matters covered by this Contract in the form requested by the Owner. (3) Audits and Inspections: CM/GC and its Subcontractors, Trade Contractors, and Trade Suppliers shall, at reasonable times and upon request at any time during the progress of the Work or during the required record retention period, afford the Owner access to the Site and to the aforesaid records with respect to matters covered by this Contract, including but not limited to books and records of account, wherever located, as they relate to the Work and determination of the cost thereof for such examination and audit by Owner or by a designated representative of the Owner as Owner may elect. Such right of access, examination and audit includes but is not limited to the right to obtain access to and to examine and audit CM/GC’s and each of its Subcontractor’s, Trade Contactor’s, or Trade Supplier’s home office records relating to the Work. Owner may make copies of any records which Owner has the rights to access, examine, and audit. If the Owner so requests at any time subsequent to the execution of this Agreement, and within anytime until the records are turned over to the Owner, CM/GC shall allow an audit to be made by an independent certified public accountant, selected and hired by the Owner, of CM/GC’s determinations of Actual Cost and Contingency Costs, with Owner to pay all reasonable costs related to completing such audit, including all fees charged by the accountant. If the audit results in a finding of improper payment by the Owner, the Owner shall provide documentation regarding the result of the audit, and CM/GC shall refund such improper payment to the Owner; provided that the CM/GC shall have sixty (60) days to dispute any evidence of overpayment. To the extent a dispute arises regarding the results of such audit, the parties shall use the dispute resolution proceedings described in Section 5 Part 2. The CM/GC shall in all agreements with Subcontractors, Trade Contractors, and Trade Suppliers include a provision that the Owner shall have the same rights with respect to the Subcontractor, Trade Contractor, or Trade Supplier; provided that any Subcontractor, Trade Contractor, or Trade Supplier bidding a lump sum payment for its portion of the Work shall be excused from this audit requirement. Notwithstanding anything to the contrary herein, this Section 1.7.9 and any other audit provision of this Contract shall not apply to cost items included or covered by any lump sum amounts, including without limitation, Overhead Costs, Fee, and Preconstruction Fee. 1.7.10 Employment of Georgia Citizens and Use of Georgia Products and Georgia Forest Products. Given that the Work provided for in this Contract is to be performed in City of Milton, Georgia, it is the wish of the Owner that materials and equipment manufactured or produced in City of Milton and the State of Georgia shall be used in the Work and that City of Milton, Georgia citizens shall be employed in the Work at wages consistent with those being paid in the general area in which the Work is to be performed. This desire on the part of the Owner is not intended to restrict or limit competitive bidding nor to increase the Cost of the Work; nor shall the fulfillment of this desire be asserted by the CM/GC as an excuse for any noncompliance or omission to fulfill any obligation under the Contract. The parties hereby agree and acknowlge that given the population of the City of Milton, Georgia, significant participation of the type described in this Section may be difficult to achieve. 1.7.11 Interpretation of Contract Documents. The Contract Documents shall be construed neither against nor in favor of either party, but shall be construed in a neutral manner. Each party has participated in negotiating and drafting this Contract, so if an ambiguity or a question of intent or interpretation arises, this Contract is to be construed as if the parties had drafted it jointly, as opposed to being construed against a party because it was responsible for drafting one or more provisions of this Contract. Section 1 – General Part 7 – Miscellaneous Provisions 30 General Requirements 1.7.12 Counterparts. This Contract may be executed in multiple counterparts each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. At least one (1) counterpart of this Contract shall be delivered to the Owner and one (1) counterpart to the CM/GC. 1.7.13 Forms and Specimens. The forms and specimens in Section 7 are incorporated by reference herein and shall be executed in substantial conformance with the Contract Documents. 1.7.14 Entire Contract. The Contract Documents referenced herein constitute the entire Contract between the Owner and the CM/GC and supersede all prior negotiations, representations, and agreements, either oral or in writing, between the parties with respect to the subject matter of this Contract. Except as set forth herein, no other promises, understandings, agreements, representations or warranties, oral or written, expressed or implied between the parties relating to the subject matter of this Contract not contained in this Contract or the Contract Documents shall be valid and binding. This Contract may not be changed, modified, or terminated, in whole or in part, nor any provision waived except by a duly authorized Change Order executed by each of the parties hereto. 1.7.15 Confidentiality. 1.7.15.1 CM/GC acknowledges that it may receive confidential information of the Owner, which shall be conspicuously marked as such, and that it will protect the confidentiality of any such confidential information and will require any of its Subcontractors, contractors, and/or staff to likewise protect such confidential information. The CM/GC agrees that confidential information it receives or such reports, information, opinions, or conclusions that CM/GC creates under this Contract shall not be made available to, or discussed with, any individual or organization, including the news media, without prior written approval of the Owner. CM/GC shall exercise reasonable precautions to prevent the unauthorized disclosure and use of Owner information whether specifically deemed confidential or not, provided that such precautions shall not prevent dissemination or communication of information if such dissemination or communication is made in the ordinary course of CM/GC’s business or in furtherance of the Project. 1.7.15.2 CM/GC acknowledges that the Owner’s disclosure of documentation is governed by Georgia’s Open Record’s Act, and CM/GC further acknowledges that, if CM/GC submits records containing trade secret information and if CM/GC wishes to keep such records confidential, CM/GC must submit and attach to such records an affidavit affirmatively declaring that specific information in the records constitutes trade secrets pursuant to Article 27 of Chapter 1 of Title 10, and the parties shall follow the requirements of O.C.G.A. § 50- 18-72(a)(34) related thereto. 1.7.16 Licenses, Certifications and Permits. The CM/GC covenants and declares that it has obtained all diplomas, certificates, licenses, permits, or the like required by any and all national, state, regional, county, local boards, agencies, commissions, committees or other regulatory bodies in order to perform the Work contracted for under this Contract; provided that some permits or licenses related to the Project may be obtained as part of the Work and shall be obtained as required. All Work performed by CM/GC under this Contract shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily expected of competent professionals. The CM/GC shall furnish copies of all such permits, licenses, or approvals to the Owner within ten (10) days after issuance. 1.7.17 Key Personnel . All of the individuals identified in Exhibit “P” are necessary for the successful completion of the Work due to their unique expertise and depth and breadth of experience. There shall be no change in CM/GC’s Project Manager or members of the project team, as listed in Exhibit “P”, without written approval of the Owner. CM/GC recognizes that the composition of this team was instrumental in the Owner’s decision to award the Work to CM/GC and that compelling reasons for substituting these individuals must be demonstrated for the Owner’s consent to be granted. Any substitutes shall be persons of comparable or superior expertise and experience. Failure to comply with the provisions of this Section shall constitute a material breach of CM/GC’s obligations under this Contract and shall be grounds for termination; provided that Owner must provide CM/GC written notice of its assertion of such breach and provide CM/GC with fifteen (15) days to cure such breach. CM/GC shall not subcontract with any third party for the performance of any portion of the Work without the prior written consent of the Owner. CM/GC shall be solely responsible for any such Subcontractors in terms of performance and compensation. 1.7.18 Ownership of Work. All reports, designs, drawings, plans, specifications, schedules, work product, and other materials prepared or in the process of being prepared for the Work to be performed by the CM/GC (“materials”) shall be the property of the Owner, and the Owner shall be entitled to full access and copies of all such materials. Section 1 – General Part 7 – Miscellaneous Provisions 31 General Requirements Any and all Owner copyrightable subject matter in all materials is hereby assigned to the Owner, and the CM/GC agrees to execute any additional documents that may be necessary to evidence such assignment. 1.7.19 Meetings. The CM/GC is required to meet with the Owner’s personnel, or designated representatives, to resolve technical or contractual problems that may occur during the term of this Contract at no additional cost to the Owner. Meetings will occur as problems arise and will be coordinated by the Owner. When possible, the CM/GC will be given a minimum of three full working days notice of meeting date, time, and location; provided that meetings may be scheduled faster where necessary to remain on track regarding Project completion or where safety requires. Face-to-face meetings are desired. However, at the CM/GC’s option and expense, a conference call meeting may be substituted. Consistent failure to participate in problem resolution meetings, two consecutive missed or rescheduled meetings, or to make a good faith effort to resolve problems, may result in termination of the Contract. 1.7.20 Nondiscrimination. In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and all other provisions of Federal law, the CM/GC agrees that, during performance of this Contract, CM/GC, for itself, its assignees and successors in interest, will not discriminate against any employee or applicant for employment, any Subcontractor, or any Supplier because of race, color, creed, national origin, gender, age or disability. In addition, CM/GC agrees to comply with all applicable implementing regulations and shall include the provisions of this Article 1.7.20 in every subcontract for services contemplated under this Contract. 1.7.21 Headings. All headings herein are intended for convenience and ease of reference purposes only and in no way define, limit, or describe the scope or intent thereof, or of this Contract, nor in any way affect this Contract. 1.7.22 No Third Party Rights. This Contract shall be exclusively for the benefit of the parties hereto and shall not provide any third parties with any remedy, claim, liability, reimbursement, cause of action, or other right. 1.7.23 Successors and Assigns. The CM/GC and Owner each bind itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives with respect to all covenants, agreements, and obligations contained in the Contract Documents. [Remainder of Page Intentionally Left Blank] Section 2 – Preconstruction Phase Part 1 – Preconstruction Phase Services 32 General Requirements SECTION 2 – PRECONSTRUCTION PHASE Preconstruction services shall be exclusively governed by that Preconstruction Services Agreement between the parties dated the 30th day of April, 2015. The terms set forth in this Section are supplemental rights and responsibilities relating to the Project. PART 1 – PRECONSTRUCTION PHASE SERVICES 2.1.1 General. [RESERVED]2.1.2 [RESERVED] 2.1.3 [RESERVED] 2.1.4 [RESERVED] 2.1.5 Scheduling Requirements. Preconstruction Services are exclusively governed by the aforementioned Preconstruction Services Agreement, and the following terms of this Section 2 shall serve as supplemental preconstruction terms. 2.1.5.1 [RESERVED] 2.1.5.2 [RESERVED] 2.1.5.3 Progress Reports and Information. When required, the CM/GC shall submit to the Design Professional and Owner such schedule of quantities and costs, payrolls, bills, vouchers, correct copies of all subcontracts, statements, reports, correct copies of all agreements, correspondence, and written transactions with the surety on the performance bond that have any relevance to the Work, estimates, records, and other data as the Owner may request that concerns the Work performed or to be performed under this Contract. When requested by the Owner, the CM/GC shall give the Owner access to its records relating to the foregoing. (See also Article 4.1.2, Audits.) The above reports shall include, but are not limited to, (a) written notice of dates by which specified Work will have been completed, (b) written notice of dates by which Non-Compliant Work will be made good, (c) written notice that Non-Compliant Work has been made good, (d) written notice as to the date or dates by which Work that has not been performed with equal steps and at the same rate required by the Overall Project Schedule shall have been brought into conformity with the Overall Project Schedule, (e) date by which any undisputed claim of a Subcontractor, Supplier, or laborer shall have been paid, (f) written advice regarding the nature and amount of any disputed claim of a Subcontractor, Supplier, or laborer, and (g) information regarding Work performed under Change Orders. 2.1.6 [RESERVED] 2.1.7 [RESERVED] 2.1.8 CM/GC Cost Responsibilities. 2.1.8.1 [RESERVED] 2.1.8.1.1 [RESERVED] 2.1.8.1.2 [RESERVED] 2.1.8.2 [RESERVED] 2.1.8.3. Unit Prices. 2.1.8.3.1 [RESERVED] 2.1.8.3.2 During Construction. Upon request of the Owner, the CM/GC shall submit written proposals for Unit Prices to be applied in the event Change Order Work is authorized by the Owner using a unit price pricing methodology. 2.1.8.3.3 [RESERVED] 2.1.9 [RESERVED] 2.1.10 [RESERVED] Section 2 – Preconstruction Phase Part 1 – Preconstruction Phase Services 33 General Requirements 2.1.11 [RESERVED] 2.1.12 [RESERVED] [Remainder of Page Intentionally Left Blank] Section 2 – Preconstruction Phase Part 2 – Construction Documents and Site Plan 34 General Requirements PART 2 – CONSTRUCTION DOCUMENTS AND SITE PLAN 2.2.1 General Provisions Regarding Construction Documents. 2.2.1.1 [RESERVED] 2.2.1.2 [RESERVED] 2.2.1.3 [RESERVED] 2.2.1.4 [RESERVED] 2.2.1.5 [RESERVED] 2.2.1.6 [RESERVED] 2.2.1.7 [RESERVED] 2.2.1.8 Intellectual Property Rights in Construction Documents, Drawings, and Models. The Drawings, Specifications and other documents prepared by the Design Professional pursuant to this Contract (including, without limitation, the Construction Documents), are the property of the Owner, whether or not the Project for which they are made commences or completes construction. Neither the CM/GC nor any Subcontractor or material or equipment Supplier shall own or claim a copyright in such Drawings, Specifications, and other similar or related documents; Owner shall retain all common law, statutory, and other intellectual property rights with respect thereto. The CM/GC must deliver remaining copies of such documents to the Owner upon request or upon completion of the Work, except that the CM/GC may keep one (1) copy of such documents for its files. The CM/GC shall only use such Drawings, Specifications and other documents for this Project. Neither the CM/GC nor any Subcontractor or material or equipment Supplier may use such Drawings, Specifications, and other documents on other projects without the specific written consent of the Owner. All models are the property of the Owner. 2.2.2 Documents at the Project Site. 2.2.2.1 Drawings and Specifications at the Project Site. The CM/GC shall keep at the Site at least one (1) copy of the Contract Documents and Change Orders, all in good order and available to the Design Professional and to his representatives. 2.2.2.2 Design Coordination Responsibilities for Construction Documents. The CM/GC shall continue its design coordination activities, as a part of its Basic Services, for the duration of construction activities at the Site. 2.2.2.3 Recording Changes. The CM/GC shall record all changes and shall annotate a copy of the Drawings to reflect the as-built condition in order to produce, at Final Completion, the Marked-up Construction Documents required by Section 6, Part 4. 2.2.3 [RESERVED] 2.2.4 Special Situation – New Sole Source Designation. 2.2.4.1 Limitations. This Article 2.2.4 applies only to Construction Documents referenced in a proposed Construction Document Change Order that designate a Sole Source that was not designated in the Program or the documents on which the GMP was based. Except as stated in this Paragraph, CM/GC's inability to obtain payment and performance bonds from Trade Contractors or warranties from Trade Contractors or Suppliers as required under this Contract shall not otherwise excuse CM/GC from its bonding and warranty obligations under this Contract. 2.2.4.2 Sole Source as Grounds for Rejection of Construction Document Change Order. If, after the acceptance of the GMP Change Order, a proposed Construction Document Change Order is submitted to CM/GC for the purposes of adding Construction Documents to this Contract necessitating a revision to the Program in accordance with the assumptions stated in the GMP Change Order, and said Construction Documents designate a “Sole Source” (as defined herein) from which CM/GC is required to procure goods or services necessary to perform the Work, which sole source has not been designated previously, CM/GC shall, in addition to the grounds enumerated above, be entitled to reject the proposed Construction Document Change Order if (1) the designated Sole Source is a Trade Contractor and it refuses to provide to CM/GC performance and payment bonds for the Trade Contract Sum in substantially the form set forth in Section 7; or (2) the designated Sole Source is a Trade Contractor or Supplier and it refuses to provide CM/GC warranties required under this Section 2 – Preconstruction Phase Part 2 – Construction Documents and Site Plan 35 General Requirements Contract, including any warranty required by Construction Documents referenced in the proposed Construction Document Change Order. In such event, CM/GC shall give written notice to the Owner rejecting the proposed Construction Document Change Order and shall accompany said written notice with a proposal from CM/GC for changes or modifications in the referenced Construction Documents so as to eliminate the Sole Source designation but to achieve goods or services equal in quality or function. The Owner shall then require the Design Professional to revise the subject Construction Documents so as to eliminate the designation of the Sole Source by incorporation of CM/GC's proposal or otherwise. Upon revision of the Construction Documents by the Design Professional and approval thereof by the Owner, the Owner shall again submit to the CM/GC a proposed Construction Document Change Order for the purpose of adding the revised Construction Documents to this Contract. CM/GC shall be entitled to a reasonable extension of the Date of Final Completion but not an increase in any Component of the Guaranteed Maximum Price by reason of its rejection of a proposed Construction Document Change Order under this Paragraph or by reason of any redesign by the Design Professional required under this Paragraph. 2.2.4.3 No Excuse Without Notice. If CM/GC accepts a proposed Construction Document Change Order adding Construction Documents to this Contract that designate a Sole Source (without putting the Owner on notice under this Article), CM/GC shall not be excused from its obligations with respect to the described Work by reason of the refusal of a designated Sole Source to provide payment or performance bonds to CM/GC or its refusal to provide warranties as required under this Contract. 2.2.4.4 Meaning of Sole Source. As used in this Article 2.2.4, “Sole Source” means a Trade Contractor or Supplier specified by name in Construction Documents as the exclusive source from which conforming goods or services may be obtained. Designation of goods or services by reference to a named source accompanied by the qualification “or equal” or similar language is not a designation of a Sole Source as that term is defined herein. 2.2.6 Manufacturer's Recommendations. All Work or materials shall be installed in accordance with the manufacturer's recommendations and requirements. The CM/GC shall obtain the manufacturer’s recommendations and requirements, for its use at the Site in executing the Work, copies of Bulletins, circulars, catalogues, or other publications bearing the manufacturer’s titles, numbers, editions, dates, etc. If the manufacturer’s recommendations and requirements are not available, the CM/GC shall request installation instructions from the Design Professional. 2.2.7 Site Plan. 2.2.7.1 [RESERVED] 2.2.7.2 [RESERVED] 2.2.7.3 Installation, Inspection, and Maintenance. The CM/GC is responsible for installation and maintenance of the BMPs as a part of its Bid. The CM/GC shall obtain the services of a qualified testing laboratory to inspect the BMPs in accordance with the permits, the costs of such inspections to be borne by the Owner. 2.2.8 Geological and Archeological Specimens. If, during the execution of the Work, the CM/GC, any Subcontractor, or any servant, employee, or agent of either should uncover any valuable material or materials, such as, but not limited to, treasure trove, geological specimens, archival material, archeological specimens, or ore, the CM/GC acknowledges that title to the foregoing is vested in the Owner. The CM/GC shall notify the Owner upon the discovery of any of the foregoing, shall take reasonable steps to safeguard it, and seek further instruction from the Design Professional. Any additional cost incurred by the CM/GC shall be addressed under the provision for changed conditions. The CM/GC agrees that the Geological and Water Resources Division and the Historic Preservation Division of the Georgia Department of Natural Resources may inspect the Work at reasonable times. [Remainder of Page Intentionally Left Blank] Section 3 – Construction Phase Part 1 – Construction Services 36 General Requirements SECTION 3 – CONSTRUCTION PHASE PART 1 – CONSTRUCTION SERVICES 3.1.1 Basic Construction Services. 3.1.1.1 Requirement to Commence Work. The CM/GC shall under all circumstances commence Work under a Component Change Order or GMP Change Order, as the case may be, no later than ten (10) days after the Proceed Order Date of a Proceed Order issued subsequent to a Component Change Order or GMP Change Order. 3.1.1.2 Payment for Services and Work. Unless otherwise stipulated, the CM/GC shall provide and pay for all materials, supplies, labor, services, water, tools, equipment, light, power, transportation, and other utilities and facilities necessary for the proper execution and completion of the Work. 3.1.1.2.1 No Obligation of Owner. CM/GC shall not enter into, execute, or deliver any agreement, document, or undertaking, or incur any obligation with any Trade Contractor, Supplier or Subcontractor in the name of the Owner. 3.1.1.2.2 No Conditional Sales Agreements. CM/GC shall not make, cause to be made, or permit, any contract for materials or equipment of any kind or nature whatsoever to be used in connection with the Work on a conditional sales or any other basis whereby the title to the equipment or materials does not pass to the Owner upon delivery to the Site or incorporation in the Project, free and clear of any lien, financing arrangement, or other impediment to title. 3.1.1.2.3 Separate, Distinct, and Independent Covenants. The covenants of this subparagraph are separate, distinct, and independent covenants, and no default by the Owner under the terms of this Contract shall relieve or release CM/GC of and from the covenants set forth in this subparagraph. 3.1.1.3 Quality of Materials and Workmanship. Unless otherwise specified, all materials shall be new, and both workmanship and materials shall be of good quality. The CM/GC shall, if required, furnish satisfactory evidence as to the kind and quality of materials and Work. The burden of proof is on the CM/GC. 3.1.1.4 Quality and Discipline of Employees. The CM/GC shall at all times enforce strict discipline and good order among his employees and shall not employ on the Work any unfit person or anyone not skilled in the Work assigned to him. 3.1.1.5 Failure of the CM/GC to Supply Workmen. A Notice of Non-Compliant Work may be issued for failure of the CM/GC to supply enough workers or enough materials or proper materials. 3.1.1.6 Superintendence and Supervision by CM/GC. 3.1.1.6.1 Supervision by CM/GC. The CM/GC shall give efficient supervision to the Work, using his best skill and attention. He shall coordinate the Work with the activities and responsibilities of the Owner, the Design Professional, and CM/GC so as to complete the Project in accordance with the Owner's objectives of quality, cost, and time for completion as set forth in the Construction Documents. He shall carefully study and compare all Drawings, Specifications, and instructions and shall at once report to the Design Professional any error, inconsistency, or omission that he may discover. 3.1.1.6.2 Superintendent of CM/GC. The CM/GC shall hire and provided on this Work, during its progress and until the Final Certificate has been executed by the Design Professional, a competent Project Superintendent and any necessary assistants, all satisfactory to the Design Professional and Owner. The Project Superintendent shall not be changed, except with the consent of the Owner and the Design Professional, unless the superintendent proves to be unsatisfactory to the CM/GC and ceases to be in his employ. The superintendent represents the CM/GC, and all directions given to the superintendent shall be as binding as if given to the CM/GC. 3.1.1.6.3 Replacement Project Superintendent. If the CM/GC terminates the Project Superintendent or, if the CM/GC, for any reason, engages a Project Superintendent different from the one originally assigned to the Project, CM/GC must ensure that the replacement Project Superintendent has similar qualifications and experience as the originally identified Project Superintendent. Furthermore, the CM/GC must obtain the Owner's prior written approval before engaging a permanent replacement Project Superintendent. 3.1.1.6.4 Competent Full-Time Staff. The CM/GC shall maintain at the Site a competent, full-time staff with appropriate expertise to coordinate and provide general direction of the Work in order to (i) Maintain adequate Section 3 – Construction Phase Part 1 – Construction Services 37 General Requirements control of the Work as to quality and compliance with the Contract Documents, and (ii) Maintain satisfactory progress by the Trade Contractors involved in the performance of the Work. 3.1.1.6.5 Coordination. The CM/GC shall establish with the Design Professional procedures for coordination among the Owner, the Design Professional, and the CM/GC. Further, the CM/GC shall establish similar procedures for coordination between CM/GC and its Trade Contractors and Suppliers, with respect to all aspects of the Project, and implement such procedures. 3.1.1.6.6 Qualified Workforce and Sufficient Staff. CM/GC shall require all Trade Contractors, Subcontractors, and Suppliers to employ, only skilled workmen properly qualified by experience and ability to perform the task assigned to them. In addition, Trade Contractors and Subcontractors shall employ and assign to the Work, at all times, sufficient staff and personnel to perform their subcontracted services in a skilled, professional, and satisfactory manner so as not to delay the progress of the Work. The CM/GC shall immediately replace or cause to be replaced all Workmen whose Work, as determined by the CM/GC, does not meet such requirements. 3.1.2 Meetings and Schedule Updates. 3.1.2.1 Meetings. CM/GC shall conduct scheduled meetings on a regular basis at which the Owner, the Design Professional, the CM/GC, and Trade Contractors may discuss jointly such matters as procedures, progress, problems, and scheduling. The CM/GC shall provide and distribute minutes of such meetings, including therein a list of the action items, responsible parties, and action dates to maintain schedules. 3.1.2.2 Updating Schedules. CM/GC shall furnish the Owner with updates to the Overall Project Schedule, which shall be revised as required by the conditions of the Work and Project, showing complete preconstruction, procurement, and construction schedules. Such schedules shall set forth the following: 3.1.2.2.1 Major Elements and Components. Listing of all major elements and Components of the Work, as well as major equipment items to be purchased, with adequate information as to those items requiring long lead-time; 3.1.2.2.2 Analysis. An analysis of the types, quantity, and availability of labor required to perform all of the Work; 3.1.2.2.3 Separate Phases. A report of the separate phases of the Work to be performed by the CM/GC and Trade Contractors, along with a flow chart of the activity sequences, coordination, and duration of each; 3.1.2.2.4 Financial Requirements. A report of monthly and cumulative financial requirements; and 3.1.2.2.5 Status. The status of construction and completion. 3.1.2.3 Joint Development of Procedures. CM/GC shall develop jointly with the Design Professional and Owner procedures for the following items: 3.1.2.3.1 Routing. Routing of correspondence; 3.1.2.3.2 Progress Reports. Progress reports; 3.1.2.3.3 Cost Control. Cost control and reporting; 3.1.2.3.4 Lines of Authority. Lines of authority and personnel assignments of CM/GC's organization; 3.1.2.3.5 Field Construction Procedures. Field construction procedures, including, without limitation, safety, construction means and methods, logistics, and handling of material and equipment at the Site; 3.1.2.3.6 Inventory Control. Inventory control and security; Section 3 – Construction Phase Part 1 – Construction Services 38 General Requirements 3.1.2.3.7 Accounting. Accounting and auditing; 3.1.2.3.8 Quality Control. Quality control of materials and the Work; 3.1.2.3.9 Other. Such other procedures as may be reasonably required by the Owner. 3.1.2.4 Monitoring. CM/GC shall provide regular monitoring of the Overall Project Schedule as construction progresses; identify potential variances between scheduled and probable completion dates; review the schedule for Work not started or incomplete, and recommend to the Owner and Trade Contractors adjustment in the Construction Progress Schedule to meet the Date for Final Completion; provide written summary reports of each monitoring to all appropriate parties and document accordingly. 3.1.2.5 Record Progress. CM/GC shall record the progress of the Work; submit written progress reports monthly to the Owner and the Design Professional, including information on the percentage of completion; maintain a daily log, approved as to form and type of entries by the Design Professional, which log shall be accessible to the Owner and the Design Professional at all times during normal business hours. 3.1.2.6 Determine Adequacy. CM/GC shall determine the adequacy of the CM/GC's Trade Contractors', and Suppliers' personnel and equipment, as well as the availability of materials and supplies to meet the Construction Progress Schedule; CM/GC shall take appropriate action when requirements of the Trade Contracts are not being met. 3.1.2.7 Provide and Pay For. CM/GC shall provide and pay for all supervision, labor, materials, equipment, utility services (including water, gas, electricity, sewage, or waste water), tools, supplies, transportation, and other items or facilities necessary for the execution and completion of the Work in accordance with the Contract Documents. 3.1.3 Construction Budget. 3.1.3.1 Provide Budget. Prior to the commencement of the Work under a Component Change Order and the GMP Change Order, the CM/GC shall provide or update the Construction Budget to the Owner and Design Professional, using the format provided in Exhibit C attached hereto and incorporated herein by reference and including therein, as a line item, the estimated cost for each discrete cost of the Work within the Change Order Sum or the Guaranteed Maximum Price, as the case may be. The CM/GC shall revise and refine the Construction Budget at appropriate intervals as required by the conditions of the Work and present the revisions to the Owner. As the projected cost of the Work becomes more determinable, the CM/GC shall incorporate approved changes as they occur, shall develop cash flow reports and forecasts, shall identify variances between actual and budgeted costs and shall advise the Owner and Design Professional promptly whenever projected costs exceed or may exceed the budgeted cost. The Construction Budget, as revised thereafter, shall be regularly updated and provided by the CM/GC to the Owner and Design Professional for the purpose of permitting the Owner to monitor the progress of the Work and to establish the basis on which Claims or requests by the CM/GC, or other matters, may be evaluated. 3.1.3.2 Cost Control System. 3.1.3.2.1 Develop System. The CM/GC shall develop a system of cost control for the Work, including but not limited to regular monitoring of Actual Costs for activities in progress and estimates for uncompleted tasks and proposed changes. 3.1.3.2.2 Implement System. The CM/GC shall monitor costs and implement the system of cost control for the Work, revise from time to time the Construction Budget with approved changes, and develop cash flow reports and forecasts as requested by the Owner. The CM/GC shall identify variances between actual and estimated costs and report the variances to the Owner and Design Professional at regular intervals. 3.1.3.3 Cost Accounting Records. The CM/GC shall maintain cost accounting records on items of Actual Cost and Construction Contingency Costs, including but not limited to authorized Work performed under Unit Prices, Actual Costs and Construction Contingency Costs for labor and materials, and other basis for requiring accounting records. The CM/GC shall maintain at the Project Site accounting records for Trade Contracts, this Contract, and other Contracts related to the Project. 3.1.3.4 Payment Procedures. The CM/GC shall develop jointly with the Design Professional and Owner procedures for reviewing, processing, recording, and paying Trade Contractors and Suppliers upon their application for payment, and implement same consistent with the Contract Documents. Further, CM/GC shall develop and implement a procedure for the review, processing, and payment of applications by Trade Contractors and Suppliers for progress Section 3 – Construction Phase Part 1 – Construction Services 39 General Requirements and final payments, including a retainer release method. Such procedure shall be submitted to the Owner for approval. 3.1.4 Coordination of the Work. 3.1.4.1 Coordination. CM/GC shall establish with Trade Contractors, Suppliers and Subcontractors the on-Site organization and lines of authority in order to carry out the overall progress of the Work. Further, CM/GC shall coordinate the Work of the CM/GC under the Contract Documents with professional consultants retained by the Owner or the Design Professional. 3.1.4.2 Construction Means and Methods. The CM/GC shall be responsible for coordinating all portions of the Work under this Contract. He shall be responsible for construction means, methods, techniques, sequences, and procedures, as well as for safety precautions and programs in connection with the Work. He shall ensure that the foregoing activities are performed in compliance with the Contract Documents. Notwithstanding the foregoing, no Trade Contractor is relieved of its responsibility for taking all reasonable and necessary steps to perform all Work consistent with the Contract Documents. 3.1.4.3 Quality Control. CM/GC shall review the Work of Trade Contractors and Suppliers for defects and deficiencies. Further, CM/GC shall develop and implement a system, including appropriate quality control documentation, for ensuring that all such defects and deficiencies are corrected. 3.1.4.4 Procedures for Change Orders. CM/GC shall coordinate and develop for Trade Contractors and Subcontractors procedures for (i) preparation, review, and processing of Change Orders; (ii) recommending necessary or desirable changes to the Owner and the Design Professional; (iv) reviewing requests for changes by the Owner, Trade Contractors, or Suppliers; (iv) submitting recommendations to the Owner and the Design Professional with respect to proposed Change Orders; and (v) implementing Change Orders as approved by the Owner. 3.1.4.5 Procedures for Approval of Materials. CM/GC shall develop procedures to ensure that no materials shall be purchased unless and until Component Construction Documents, defining or affecting such materials, have been approved by the Owner and then only in conformance with the Component Change Order or Construction Documents Change Order. 3.1.5 Mobilization. CM/GC shall mobilize, transport and assemble its equipment, materials, and supplies, as well as construct such temporary systems as are necessary and required at the Site, all in adequate time for satisfactory performance of the Work. 3.1.6 Duty to Commence. 3.1.6.1 Time for Commencement. Within ten (10) days after the Proceed Order Date, the CM/GC shall commence to procure such services, labor, and materials necessary to perform the Work described in any approved Component Change Order or the GMC Change Order, but only to the extent Construction Documents for said Work or affecting said Work have been approved by Owner. 3.1.6.2 No Direct Performance. The CM/GC shall not directly perform any Work or provide any materials, equipment, or supplies but shall contract for performance of Work or procurement of materials, equipment, or supplies through Trade Contracts and Subcontracts, except as otherwise permitted by the Contract Documents. No fee shall be payable by Owner to CM/GC for self-provided Work or materials except by lump sum as provided in paragraph 3.2.3.2. 3.1.6.3 Responsibility for Proper Performance. Notwithstanding CM/GC's execution of contracts with Trade Contractors, Subcontractors or Suppliers incident to the performance of the whole or any part of the Work, the CM/GC shall be responsible to the Owner for the proper performance of the Work in compliance with the Contract Documents, unless the Contract Documents expressly provide to the contrary. Unless caused by the Owner or Design Professional, inefficiency, non-performance, improper performance, or other default by any Trade Contractor or Supplier under contract with CM/GC or employee thereof shall not excuse the CM/GC from its obligation to assure timely performance in compliance with the Contract Documents. 3.1.6.4 Acts and Omissions. The CM/GC shall be fully responsible for the acts and omissions of its officers, employees, agents, licensees, Trade Contractors, Subcontractors, Suppliers, invitees and guests, as well as their respective officers, employees, agents, licensees, Suppliers, guests, materialmen, and all other persons performing any of the Work or supplying labor, services, materials, or equipment for or under the Trade Contracts entered into by the CM/GC. The failure of a Trade Contractor, Subcontractor or Supplier under contract with CM/GC or employees thereof to properly perform shall not excuse the CM/GC for any omission from or non-compliance with the requirements of the Contract Documents; nor shall the CM/GC be entitled to an extension of time because of the failure of a Trade Contractor, Subcontractor or Supplier, Section 3 – Construction Phase Part 1 – Construction Services 40 General Requirements unless such failure was a direct result of some delay to the Trade Contractor, Subcontractor, or Supplier of the kind and character for which the CM/GC is entitled to receive an extension of time. 3.1.6.5 Responsibility for Completion. CM/GC shall complete the Work under Component Change Orders and the GMP Change Order and shall achieve Final Completion of the Project not later than thirty (30) days after the Material Completion Date. 3.1.7 Notice of Commencement. The CM/GC shall, in accordance with Georgia law, record and post a Notice of Commencement for the construction portion of the Work, and shall promptly deliver a stamped-recorded copy of such Notice of Commencement to the Design Professional. (See O.C.G.A. § 36-91-92.) 3.1.8 Measurements and Dimensions. Before ordering material or doing Work that is dependent upon coordination with building conditions, the CM/GC shall verify all dimensions, elevations, grades, and pitch by taking measurements at the building Site and shall be responsible for the correctness of same. Any discrepancies between the Drawings and/or Specifications and the existing conditions shall be referred to the Design Professional for additional instructions before any Work affected thereby is begun. 3.1.9 Rain Water, Surface Water, and Back-up. The CM/GC shall protect all excavations and trenches, from rainwater, surface water, and back up of drains and sewers. The CM/GC shall furnish all labor, pumps, shoring, enclosures, and equipment necessary to protect and to keep the Work free of water. 3.1.10 Dust Control. CM/GC shall provide and include in the Cost of the Work dust-proof enclosures or partitions for protection wherever dusty or dirty Work is performed, and CM/GC shall provide dampening of debris to avoid dusting when removed. 3.1.11 Cutting, Patching, and Fitting. The CM/GC shall do all cutting, patching, and fitting of the Work that may be required to make its several parts come together properly and fit. 3.1.12 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 the CM/GC to accomplish this requirement. The CM/GC shall 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, motors, controllers, switchgear, drain points, filter, access doors, and fire dampers. If spaces, dimensions, or other design conditions do not permit compliance with the present article, the CM/GC shall file a request in writing with the Design Professional for additional instructions, furnishing a copy to the Owner. 3.1.13 Cleaning. 3.1.13.1 During Construction. At all times, the CM/GC shall keep the premises free from accumulations of waste material or rubbish caused by his employees, Trade Contractors, or Work. Periodically during the course of the Work he shall remove all his rubbish, tools, scaffolding, and surplus materials from and about the Work and Site and shall leave his Work and the Site "broom-clean" or its equivalent, unless more exactly specified. Prior to Final Completion by a Trade Contractor of any Trade Contract, CM/GC shall require the Trade Contractor to remove from the Work and Site all temporary systems, tools, equipment, machinery, and surplus materials not required for the continued performance of any Work under the Trade Contract or this Contract. In case of dispute, after 48 hours written notice to CM/GC, the Owner may remove the rubbish and charge the cost to the CM/GC. 3.1.13.2 Prior to Final Completion. Prior to Final Completion of the Project, CM/GC shall remove from the Site all wastes and rubbish, clean all tile and glass surfaces, replace broken glass, remove stains, paint spots, and clean and polish all plumbing fixtures and equipment, leave the Work “vacuum clean” or its substantial equivalent, all hard surface floors swept and mopped, all carpeted floors vacuumed, all surfaces other than floors dusted, blower dusted, or wiped (depending on type of surface) and surface blemishes cleaned, all glazing washed [both sides], and all electrical and mechanical equipment and fixtures cleaned, with all ductwork cleaned and filters replaced, if such are dirty, before other cleaning is started, and re-cleaned if any dust or dirt has gotten into the ductwork during the cleaning process. The CM/GC shall restore existing facilities such as roads, other paved surfaces, fencing, curbing and the like at the Site to at least their preconstruction conditions; provided, however, the CM/GC may, in an orderly fashion, leave equipment and supplies at the Site as necessary to achieve Final Completion of the Project. This cleaning must be completed before the CM/GC can expect the Design Professional to commence the inspection for Final Completion. To achieve Final Completion, the CM/GC shall have fully cleaned the Site – all debris must have been removed from the Site, and all paved surfaces must have been broom swept and thoroughly hosed down. Section 3 – Construction Phase Part 1 – Construction Services 41 General Requirements 3.1.14 Duty of CM/GC to Report Defects. If any part of the CM/GC’s Work depends for proper execution or results upon the work of any Separate Contractor to the Owner, the CM/GC shall inspect and promptly report to the Design Professional any apparent defects in such work that render it unsuitable for such proper execution and results. 3.1.15 Duty of CM/GC to Report Conflicts. To ensure the proper execution of his subsequent Work, the CM/GC shall measure Work already in place and shall at once report to the Design Professional any discrepancy between the executed Work and the Drawings or Specifications. [Remainder of Page Intentionally Left Blank] Section 3 – Construction Phase Part 2 – Component Change Orders 42 General Requirements PART 2 – COMPONENT CHANGE ORDERS 3.2.1 Scope of Part. This Part shall govern the performance of all construction Work under a Component Change Order unless the provisions of this Contract are modified by Change Order. This Contract shall not apply, and none of the responsibilities of the CM/GC stated herein shall apply, to Work performed by a Separate Contractor for which CM/GC is not responsible under this Contract. 3.2.2 Component Change Order Proposal. 3.2.2.1 Proposal. If, prior to the execution of the GMP Change Order, the CM/GC proposes and the Owner authorizes the commencement of construction or procurement of any Component of the Project for which the Owner has approved Component Construction Documents, the Owner shall request the CM/GC to procure proposals and to submit a proposed Component Change Order to this Contract under which the CM/GC shall offer to contract with a Trade Contractor(s) for the construction of the Component or with a Supplier(s) for procurement of the Component in accordance with the Component Construction Documents. The Owner’s request shall identify the specific Component of the Project for which a proposed Change Order is requested. 3.2.2.2 Component Construction Documents. The Design Professional shall issue Component Construction Documents meeting the following minimum criteria: a. The Component Construction Documents shall reasonably show the intent of the Work to be accomplished; b. The Component Construction Documents shall be sufficient for the CM/GC to price the Work; c. The Component Construction Documents shall meet all regulatory and Fire Marshal requirements; and d. The Component Construction Documents shall be sufficiently detailed to preclude the necessity for rework as the Construction Documents proceed to 100% completion. 3.2.2.3 Component Change Order Format. The Component Change Order shall state a Change Order Sum as defined in Article 3.2.3 below, shall state a proposed Date for Final Completion of such Work, and shall be substantially in the form set forth in Exhibit G. 3.2.3 Component Change Order Sum. 3.2.3.1 Change Order Sum. The Change Order Sum for Work or materials contracted for by the CM/GC under a Component Change Order shall consist of the following: 3.2.3.1.1 Trade Contractors and Suppliers. The Subcontract Sums due the Trade Contractors or Suppliers retained by CM/GC for the performance of the Work; 3.2.3.1.2 CM/GC's Estimated Costs. The CM/GC's Estimated Cost (based on anticipated Actual Costs (as defined in Section 4, Part 4) for the performance of the Work that are not represented by services and that are not included in the services or materials provided by the Trade Contractor or Supplier in subparagraph 3.2.3.1.1 above; 3.2.3.1.3 Construction Contingency. Construction Contingency (as defined in Section 4, Part 4) for the Component’s anticipated contingency costs incident to the performance of the Work and procurement of the materials for the Component; and 3.2.3.1.4 CM/GC's Fee. The CM/GC's Fee for the performance of the Work, which shall be stated as a lump sum amount commensurate with the scope of the Component Change Order and a proportionate percentage of the lump sum for the relevant phase, as provided in paragraph 5 of the Contract. 3.2.3.2 Lump Sum Amount. If CM/GC proposes to perform Work with its own forces, and the Owner approves, the lump sum amount shall be the Change Order Sum, and the Change Order Sum proposed shall not include, as additions, any estimated cost, contingency, overhead, scope of Work or CM/GC Fee components in the same manner as set forth in Article 3.7.8. 3.2.3.3 Mobilization Costs. 3.2.3.3.1 Intentionally Omitted. 3.2.3.3.2 Temporary Structures. To the extent the CM/GC's Estimated Cost Component of the Change Order Sum includes estimated Actual Costs for CM/GC's on-Site offices or for other temporary structures Section 3 – Construction Phase Part 2 – Component Change Orders 43 General Requirements and equipment incident to mobilization of its own forces for Work under the proposed Component Change Order, CM/GC shall submit as part of its proposed Component Change Order a proposed budget for such costs and a proposed plan for acquisition of such items. If the Owner approves the provision by CM/GC of on-Site office facilities and other temporary structures and equipment from CM/GC's own inventory, then no CM/GC's Fee shall be payable by Owner on account of such self-provided facilities (in excess of any fee included in the approved sales price or rental rate), and the CM/GC's Fee shall be proportionately reduced. 3.2.4 Unacceptable Proposals. If, prior to its acceptance of a proposed Component Change Order, the CM/GC shall give notice to the Owner that the lowest responsible proposal received by the CM/GC from a Trade Contractor to perform the Work described in the proposed Change Order exceeds the CM/GC's Construction Cost Estimate for that Work, or that no responsible proposal for that Work has been received, then the CM/GC may propose to either (1) request a redesign of Construction Document governing the Component (so long as the redesign is a functional and quality equivalent); or (2) request that the CM/GC perform the Work with its own forces for the lump sum amount stated in the CM/GC's Construction Cost Estimate, which shall be the lump sum Change Order Sum. Any design fees and costs for a requested redesign approved by Owner shall be paid by CM/GC to the Design Professional through the Owner. The Owner, in its sole and absolute discretion, may reject either or both proposals made by CM/GC. 3.2.5 Time for Review. The Owner shall have seven (7) days following its receipt of the CM/GC's proposed Component Change Order under this Article to accept or reject same. Otherwise, CM/GC shall be entitled to an extension of time equal to the delay of Owner in accepting or rejecting same. 3.2.6 Rejection. If the Owner rejects the CM/GC's proposed Component Change Order, CM/GC may revise and resubmit same but shall not be obligated to do so. In the event that no such Component Change Order can be agreed upon, CM/GC shall continue its performance under any Component Change Orders then outstanding and with the performance of any other services required under this Contract until such time as a Component or GMP Change Order is approved or either party elects to terminate this Contract. If the Owner rejects the CM/GC's proposed Component Change Order, Owner may remove by Change Order from the Contract Documents the Work contemplated by the rejected Component Change Order and may use alternative methods for the construction or procurement of the Work involved, and CM/GC shall not be entitled to any Fee or other compensation with respect to such Work. In the event that the Owner uses alternative methods for the construction or procurement of the Work, the CM/GC must cooperate with the Owner in order to get the W ork completed. 3.2.7 Proceed Order for a Component. If the Owner accepts the CM/GC's proposed Component Change Order, the Owner shall give written notice of same by returning the proposed Component Change Order with its acceptance endorsed thereon and shall issue to CM/GC a Proceed Order to construct the Component. At that time, the Component Change Order shall become a part of the Contract Documents. Thereafter, the Work performed thereunder shall be performed and administered in accordance with the Contract Documents. The date of the Proceed Order shall be the starting date for the Work covered by the Component Change Order. 3.2.8 Duty to Proceed. Upon receipt of the Owner's Notice of Acceptance of the proposed Component Change Order, the CM/GC shall, in accordance with Article 2.1.2 of this Contract, furnish Owner with items required thereunder and, the CM/GC shall, as of the Proceed Order Date, commence performance of the Work covered by the Component Change Order. 3.2.9 Owner's Liability. 3.2.9.1 Maximum Liability. The Change Order Sum as stated in a Component Change Order shall be the maximum amount that the Owner is required to pay to CM/GC for the performance of the Work under a Component Change Order. The Change Order Sum, however, may be increased or decreased under those circumstances where other Articles of this Contract authorize an increase or decrease in the Contract Sum or the payment of additional compensation. This increase or decrease shall be added to or subtracted from the original Change Order Sum to determine the revised Change Order Sum. 3.2.9.2 Maximum Sum Calculated. Where the Change Order Sum is so calculated, the sum of (i) the Contract Sum payable to the Trade Contractor or Supplier plus (ii) the CM/GC's Estimated Costs plus (iii) Construction Contingency plus (iv) CM/GC’s Fee shall be the maximum sum that Owner shall be obligated to pay CM/GC for the performance of the Work encompassed by the Component Change Order. 3.2.10 Completion Date. The completion date for the Work as stated in a Component Change Order shall be subject to extension or acceleration under those circumstances where other provisions of this Contract authorize an extension or acceleration in the time. Section 3 – Construction Phase Part 2 – Component Change Orders 44 General Requirements 3.2.11 Effect of GMP Change Order. At the time CM/GC submits its GMP Change Order proposal under Article 3.3.1, CM/GC shall incorporate into the Estimated Cost, Construction Contingency, and Fee components of the proposed Guaranteed Maximum Price the corresponding components or lump sum amounts of all Change Order Sums stated in all Component Change Orders accepted as of that date by the Owner. The Owner shall receive a credit for payments it has made under all Component Change Orders after approval of the GMP Change Order. 3.2.12 Cumulative Effect of Component Change Orders. Estimated Cost and Contingency Cost components of the Change Order Sums of Component Changes Orders shall be cumulative so that the aggregate of all outstanding Estimated Cost and Contingency Cost components of all Component Change Orders shall be available for payment to CM/GC at any time. 3.2.13 Pre-Commencement Obligations. The CM/GC shall complete the pre-commencement obligations set forth in Article 2.1.2, as additionally detailed below: 3.2.13.1 Payment and Performance Bonds. 3.2.13.1.1 Component Change Order. (a) In the case of the initial Component Change Order, CM/GC shall provide payment and performance bonds in conformance with and in the form set forth in the Contract Documents designating the CM/GC as the principal obligor and the Owner as the obligee, in an amount of the Change Order Sum covering the Work under that Component Change Order and, in the case of subsequent Component Change Orders, an endorsement to such bonds increasing the aggregate amount of the bonds to an amount equal to the aggregate of the Change Order Sums of all Component Change Orders to this Contract. See also Article 1.5.1. If, in connection with a Component Change Order, the CM/GC has furnished payment and performance bonds in the amount approved by the Owner as the reasonably expected aggregate amount of the Change Order Sums of that and any prior Component Change Order and all subsequent Component Change Orders and covering all such Work, then upon entry of a subsequent Component Change Order, no additional endorsement to payment or performance bonds shall be required, provided that the aggregate amount of the Change Order Sums of all Component Change Orders does not exceed the penal sum of each bond. However, Owner may require written confirmation from the surety that the outstanding bonds cover the Work under a subsequent Component Change Order. No election or failure of the Owner to request such confirmation shall affect the rights of Owner or others under the existing bonds covering such Work. (b) As an alternative, the initial payment and performance bonds may be obtained with the penal amount set as the sum of the total CM/GC fees plus the total estimated construction cost at the time of the initial Component Change Order. 3.2.13.1.2 Effect of GMP Change Order Upon Bonds. Upon approval of the GMP Change Order, payment and performance bonds shall be furnished by the CM/GC in conformance with and in the form set forth in Contract Documents, in the amount of the Guaranteed Maximum Price, designating CM/GC as the principal obligor and the Owner as the obligee. If, in connection with a Component Change Order preceding the GMP Change Order, CM/GC has furnished payment and performance bonds covering the Work under Component Change Orders and under the GMP Change Order, and such bonds are in an amount not less than the Guaranteed Maximum Price, no additional payment or performance bonds shall be required. However, Owner may require written confirmation of the surety that the outstanding bonds cover the Work under the GMP Change Order. No election or failure of the Owner to request such confirmation shall affect the rights of Owner or others under the existing bonds covering such Work. 3.2.13.2 Certificates of Insurance. CM/GC shall provide to Owner all certificates of insurance required under of this Contract, including those required under Contract Documents. 3.2.13.3 Construction Progress Schedule. CM/GC shall complete and provide to Owner for approval a Construction Progress Schedule. 3.2.13.4 Construction Budget. CM/GC shall complete and provide to Owner for approval a Construction Budget. 3.2.13.5 Rental Rates. CM/GC shall complete and provide to Owner for approval a schedule for (i) proposed rental rates on heavy construction equipment, and (ii) proposed wage rates of operating engineers. The CM/GC firm shall certify that the proposal for rental rates and proposal for wage rates comply with the Contract Documents. Section 3 – Construction Phase Part 2 – Component Change Orders 45 General Requirements [Remainder of Page Intentionally Left Blank] Section 3 – Construction Phase Part 3 – GMP Change Order 46 General Requirements PART 3 – GMP CHANGE ORDER 3.3.1 Guaranteed Maximum Price. 3.3.1.1 Guaranteed Maximum Price Proposal. The CM/GC shall propose a Guaranteed Maximum Price (GMP) and shall include in his proposal all services, equipment, labor, and materials required by the Contract Documents. Upon approval, the GMP Change Order, including the CM/GC’s proposal, will become a part of the Contract Documents. 3.3.1.2 Submission of Guaranteed Maximum Price Proposal. After the completion of Design Development Documents, and when the Project Drawings and Specifications are sufficiently complete, but not later than thirty (30) days after a Construction Documents Change Order, CM/GC shall submit to the Owner a proposed GMP Change Order to establish the Guaranteed Maximum Price, which shall be inclusive of the Cost of the Work, the Construction Contingency (as defined in Section 4 Part 4) and CM/GC's Fee (as defined in Section 4 Part 1). Under the GMP Change Order, the CM/GC shall propose (i) to perform the construction of the entire Project in accordance with the assumptions stated in the GMP Change Order or in accordance with the Construction Documents Change Order, as appropriate, for a Guaranteed Maximum Price, which shall be specified in the proposed GMP Change Order, and (ii) to achieve Final Completion of the Project not later than thirty (30) days following the Material Completion Date specified in the proposed GMP Change Order. 3.3.1.2.1 GMP Defined. The Guaranteed Maximum Price shall be inclusive of (i) the CM/GC's Estimated Cost of the Work, (ii) the Construction Contingency, (iii) the CM/GC's Fee, and (iv) the CM/GC’s Fixed Overhead costs, to be set forth in the proposed GMP Change Order as follows: (a) Estimated Costs of the Work. The proposed GMP Change Order shall include separately identified dollar amounts, stated as fixed sums, for Actual Costs as estimated by the CM/GC for the complete construction of the Project, which amount shall include all Trade Contract and Subcontract Sums, costs of materials, and any Component Change Order Sums; (b) Construction Contingency. The proposed GMP Change Order shall include, as a separately identified item, a Construction Contingency sum in an initial amount (subject to increase or decrease) against which CM/GC can draw at its election for the purposes set forth in Section 4 Part 4. The initial Construction Contingency sum shall include the contingency amounts stated in all accepted Component Change Orders. (c) CM/GC's Fee. The proposed GMP Change Order shall include, as a separately identified item, the total Fee for CM/GC's performance of the Work. The Fee shall be stated as a lump sum amount and shall be not more than the amount shown in Paragraph 5 of the Contract. (d) CM/GC’s Overhead Costs and Expenses. The proposed GMP Change Order shall include, as a separately identified item, a lump sum fixed amount for CM/GC's Overhead Costs and Expenses (Preconstruction and Construction) for performance of the Work and a daily rate for Time Dependent Overhead Costs that shall be used in adjusting the maximum amount for CM/GC's Overhead Costs and Expenses in the event the Contract Time is extended for one of the specified reasons for which such time is compensable. (e) Credit for Payments. The Owner shall receive a credit for all payments made under the Contract Documents, as against the CM/GC Fee and the cost of Basic Services and the Work. 3.3.1.2.2 CM/GC’s Statement. CM/GC shall include, as part of the proposed GMP Change Order, a statement identifying: (a) A list of the Drawings and Specifications, including all Addenda and Bulletins thereto, including without limitation the Conditions of the Contract, which were used in preparation of the Guaranteed Maximum Price proposal. (b) All estimates, noting whether they cover furnishing and delivery, or furnishing, delivery, and installation. The CM/GC's Fee shall not be reduced because the Actual Cost of the estimated item is less than the estimate and shall not be increased because the Actual Cost of the estimated item is greater than the estimate. (c) A listing of any trade, Work categories, or other items that are not included in the Guaranteed Maximum Price. Section 3 – Construction Phase Part 3 – GMP Change Order 47 General Requirements (d) A Construction Documents Schedule setting forth the dates assumed by CM/GC for the Design Professional's completion of Construction Documents necessary to effect the Program to satisfy Subparagraph 3.3.1.2.2(l) below that have not been completed and approved by Owner, to which schedule the Design Professional shall have agreed. (e) A Shop Drawing Approval Schedule setting forth the schedule assumed by CM/GC for the Design Professional's response to Shop Drawings, submitted by CM/GC, to which schedule the Design Professional shall have agreed. (f) A Construction Progress Schedule prepared in accordance with this Contract. (g) A Construction Budget prepared in accordance with this Contract. (h) A Component Schedule showing any Components of the Project that the CM/GC expects the Design Professional to segregate. (i) The Design Professional's concurrence with the Construction Documents Schedule, Shop Drawing Approval Schedule, and the Component Schedule referenced above. (j) A staffing plan along with a wage and salary schedule for CM/GC's staffing of the Project during the course of the Work, for which CM/GC proposes that the Owner reimburse CM/GC Actual Costs under this Contract. (k) A proposed budget for CM/GC's estimated Actual Cost for CM/GC's on-Site offices and for other temporary structures and equipment and a proposed plan for acquisition of such items. (l) A list of the clarifications and assumptions made by CM/GC in the preparation of the Guaranteed Maximum Price proposal to supplement the information contained in the Drawings and Specifications. (m) The proposed Guaranteed Maximum Price, including a statement of the estimated cost organized by trade categories, allowances, contingency, and other items, along with the CM/GC’s Fee, that compose the Guaranteed Maximum Price. (n) The Material Completion Date and Final Completion Date upon which the proposed Guaranteed Maximum Price is based. 3.3.1.3 No Allowances Permitted in GMP. While allowances may be utilized in the cost calculations for portions of the Project not yet fully designed during the Preconstruction Phase of this Agreement, the CM/GC shall not include any cash allowances in the GMP Change Order proposal. The CM/GC may include within the GMP Change Order proposal such assumptions deemed appropriate concerning costing issues used in developing the proposed GMP. The CM/GC acknowledges and agrees that the GMP includes sums for overhead and CM/GC’s Fee on account of all assumptions. No demand for overhead and profit other than those included in the GMP shall be allowed. 3.3.2 Submittal of GMP Change Order. 3.3.2.1 Format for Submittal. The CM/GC's proposed GMP Change Order shall be submitted to the Owner as an offer in substantially the form set forth in Exhibit H. 3.3.2.2 GMP Proposal Review Meeting. Following CM/GC's submission of the proposed GMP Change Order and prior to its acceptance, the Owner and Design Professional shall meet with the CM/GC to review the proposed GMP Change Order and the statement of its basis. The Owner and the Design Professional shall promptly notify the CM/GC of any errors or omissions they discover in the presented information during their review of same. CM/GC shall be entitled to make any necessary adjustments to the proposed GMP Change Order as a result of any errors discovered by the CM/GC, the Design Professional, or the Owner prior to its acceptance by the Owner. Neither the Design Professional nor the Owner has any duty to CM/GC to examine the proposed GMP Change Order to discover such errors, and no error discovered after acceptance by the Owner of the GMP Change Order shall constitute a basis for a change therein or a modification to this Contract. 3.3.3 Acceptance or Rejection of GMP Change Order. 3.3.3.1 Time for Acceptance or Rejection. The Owner shall have thirty (30) Business Days from the receipt of CM/GC's proposed GMP Change Order to accept or reject same. Section 3 – Construction Phase Part 3 – GMP Change Order 48 General Requirements 3.3.3.2 Written Notice of Acceptance. If the Owner accepts the CM/GC's proposed GMP Change Order, the Owner shall give written notice of same by returning the proposed GMP Change Order with its acceptance endorsed thereon and shall issue to CM/GC a Proceed Order. At that time, the GMP Change Order shall become a part of the Contract Documents. Thereafter, the Work performed thereunder shall be performed and administered in accordance with the Contract Documents. The date of the Proceed Order shall be the starting date for the Work covered by the GMP Change Order. 3.3.3.3 Rejection of GMP Proposal. If the Owner rejects the CM/GC's proposed GMP Change Order, CM/GC may, but shall not be obligated to, revise and resubmit same. In the event no GMP Change Order can be agreed upon, CM/GC shall continue its performance under any Component Change Orders then outstanding and with the performance of any other services required under this Contract until such time that a GMP Change Order is approved or either party elects to terminate this Contract. 3.3.4 Duty to Proceed. Upon receipt of the Owner's Notice of Acceptance of the GMP Change Order, the CM/GC shall furnish the items required by Article 2.1.2 that are not yet submitted, and on the Proceed Order Date, the CM/GC shall promptly begin or continue the prosecution of the W ork in accordance with the Contract Documents and in accordance with any subsequent Construction Document Change Order. 3.3.5 Modification of GMP. Whenever this Contract authorizes an increase or decrease in the GMP, the increase or decrease shall operate to increase or decrease the Estimated Cost Component and CM/GC’s Fee Component of the GMP Change Order. The Guaranteed Maximum Price shall be subject to additions and deductions by Change Order. 3.3.6 Replacement of GMP with Lump Sum Price. 3.3.6.1 Owner’s Option. At Owner’s sole option at or after completion of 95% of Construction Documents, Owner may request CM/GC to propose a Lump Sum Price to replace the GMP for full and Final Completion of the Project. Owner may, in its sole discretion, accept such Lump Sum Price, reject such Lump Sum Price, or enter into negotiations with CM/GC to reach a mutually agreeable Lump Sum Price. The cost of preparation of the Lump Sum Price Proposal may be paid from the ConstructionContingency. Upon agreement as to the Lump Sum Price, the change shall be effected by a Lump Sum Price Change Order using the form provided in Exhibit I attached hereto and incorporated herein by reference. 3.3.6.2 Effect of Lump Sum Price Change Order. The Lump Sum Price shall become the Contract Sum for full and Final Completion of the Project in accordance with the Contract DocumentsUnpaid amounts from these GMP budget categories shall be returned to the Owner. Within 10 days of the execution of the Lump Sum Price Change Order, CM/GC shall present for the approval of the Design Professional and Owner a schedule of values for the periodic payment of the remaining contract balance, which approval shall not be unreasonably withheld. 3.3.6.3 Periodic Payments of the Lump Sum Price. In the event the GMP is replaced with a Lump Sum Price to be paid in periodic payments, the cost accounting and payment provisions contained in this agreement shall be superseded and modified to the extent of the following: (a) Periodical Estimates and Receipts.–The CM/GC shall submit to the Design Professional and in accordance with a form to be supplied by the Owner (specimen of which will be supplied upon request) an application (sometimes herein designated "periodical estimate") for each payment, and, if requested by the Owner or Design Professional, receipts or other vouchers showing CM/GC’s payments for materials and labor, including payments to Trade Contractors, Suppliers, and Subcontractors. (b) Initial Breakdown and Periodical Payments.–If payments are made on valuation of Work done, such application shall be submitted at least thirty (30) days before each payment falls due. Before the first application, the CM/GC shall submit to the Design Professional a schedule of values of the various parts of the Work, including quantities, aggregating the total sum of the contract, divided in such manner as to facilitate payments to Trade Contractors, Suppliers, and Subcontractors, on a form to be furnished by the Owner with a complete breakdown of the Lump Sum Price so arranged and so itemized as to meet the approval of the Design Professional and, if requested, supported by such evidence as to its correctness as the Design Professional may direct. The schedule, designated herein the "initial breakdown" (specimen of which will be supplied on request), when approved by the Design Professional, shall be used as a basis for certificates of payment unless it be found to be in error. In applying for payments, the CM/GC shall submit a statement based upon this schedule on the periodical estimate form and, if requested by the Design Professional or Owner, said statement shall be itemized in such form and supported by such evidence as the Design Professional or Owner may direct, showing the CM/GC’s right to the payment claimed on the periodical estimate. (c) Materials stored.–If periodic payments are made on account of materials delivered and suitably stored at the Site but not incorporated in the Work, they shall, if required by the Owner or the Design Professional, be Section 3 – Construction Phase Part 3 – GMP Change Order 49 General Requirements conditional upon submission by the CM/GC of bills of sale or such other procedure as will establish the Owner's title to such material or otherwise adequately protect the Owner's interest. The CM/GC is responsible for the existence, protection, and, if necessary, replacement of materials until issuance of the Final Certificate by the Design Professional. The Owner shall not pay for any materials stored off Site. (d) Processing of Periodical Estimates.–The Contract Compliance Specialist or alternate entity appointed by the Owner will review the Periodical Estimate prepared by the CM/GC and, if he concurs, execute a certificate on the face of the Periodical Estimate as to its accuracy. The Design Professional shall visit the Project Site after the CM/GC and Contract Compliance Specialist have agreed on the Periodical Estimate and conduct such inspections and reviews as are necessary to make a decision as to the accuracy of the Periodical Estimate. If the Contract Compliance Specialist and the CM/GC cannot agree on the appropriateness of the Periodical Estimate in question, the Design Professional shall make a decision. Upon determining the appropriateness of the estimate, the Design Professional shall execute the certificate of Periodical Estimate and forward it to the Owner for payment. 3.3.6.4 Changes to the Lump Sum Price. As otherwise permitted by this Contract, the Lump Sum Price shall be subject to additions and deductions by Change Order. [Remainder of Page Intentionally Left Blank] Section 3 – Construction Phase Part 4 – Changes to the Work 50 General Requirements PART 4 – CHANGES TO THE WORK 3.4.1 Acknowledgement of Existing Physical Conditions. In undertaking the Work under this Contract, the CM/GC acknowledges that he has visited the Site and has taken into consideration all open and apparent conditions that might affect his Work. No Claim based on lack of knowledge of existing conditions shall be allowed unless the existing physical conditions cannot be discovered by a reasonably observant person. Any Claims relating to conditions that are materially different from the Contract Documents that were not open and apparent may be adjusted as provided in this Part. 3.4.2 Owner’s Right to Make Changes. Without invalidating the Contract, the Owner, by Change Order and without notice to the sureties, may authorize or order extra Work or changes by altering, adding to, or deducting from the Work or the Contract Time, the Contract Sum being adjusted accordingly. All Change Orders shall be performed under the conditions of the original Contract, except that any Claim for extension of time caused thereby shall be adjusted at the time of signing of the Change Order. (See Change Order formats in Exhibits G through I attached hereto.) Prior to the issuance of the Proceed Order, the CM/GC and the Owner shall advise each other in writing of their designees authorized to accept and approve changes to the Contract Sum and the limits to each designee's authority. Should any designee or limits of authority change during the time this Contract is in effect, the CM/GC or Owner shall give written notice to the other as provided in Article 1.1.5. There is no legal limitation on the Owner’s right to make changes such as may be, in the Owner’s sole discretion, useful or desirable to the Project. 3.4.3 Changes Forbidden without Consent of Owner. Neither the Design Professional nor the CM/GC shall make any change whatsoever in the Work without an approved Change Order. In the absence of an approved Change Order, the CM/GC shall have no Claim for payment, repayment, reimbursement, remittance, remuneration, compensation, profit, cost, overhead, expense, loss, expenditure, allowance, charge, demand, hire, wages, salary, tax, cash, assessment, price, money, bill, statement, dues, recovery, restitution, benefit, recoupment, exaction, injury, damages, or time based upon or resulting from any change. The provisions of this Article do not apply to emergencies as described in Article 1.4.4; provided that any additional payment for such emergency changes shall be negotiated in good faith and agreed upon in writing by the parties if such emergency resulted from circumstances beyond CM/GC’s control. 3.4.4 Form and Execution of Change Orders. 3.4.4.1 The Change Order. The Change Order is the instrument by which adjustments in the Contract Sum and the Contract Time are effected. The Change Order shall be accompanied by a breakdown as set forth in Paragraph 3.4.7.4. The breakdown is for the purpose of enabling the Design Professional and the Owner to make a judgment on the dollar amount of the adjustment in the Contract Sum and is not a part of the Change Order. No condition, term, qualification, limitation, exception, exemption, modification, or proviso, except as set forth in this Part, shall appear in the breakdown. Only such conditions, terms, qualifications, limitations, exceptions, exemptions, modifications, and provisos as are permitted under this Part are valid. The Design Professional shall certify to the dollar amount and description of the adjustments permitted by the Change Order. 3.4.4.2 Execution of Change Orders. Change Orders shall be signed by the CM/GC, ordinarily certified by the Design Professional, and approved by the Owner in accordance with the form of Change Order prescribed by the Owner. No request for payment by the CM/GC for a Change Order shall be due, nor shall any such request appear on an Application for Payment, until the Change Order is executed by the Owner. In the event of emergency (see Article 1.4.4) or significant impact to the Overall Project Schedule, the Owner shall direct the Change Order to proceed upon a Force Account until the cost and time is resolved in the manner set forth in Paragraph 3.4.7.3 below. 3.4.4.3 Disagreement between Design Professional and CM/GC. 3.4.4.3.1 As to GMP and Fees. Should the Design Professional disagree with the CM/GC as to the amount of the adjustment to the Change Order Sum and such disagreement is not resolved between them within seven (7) days, the Owner, if it desires the Change Order Work to proceed, may direct a Change Order for Force Account. Section 3 – Construction Phase Part 4 – Changes to the Work 51 General Requirements 3.4.4.3.2 As to Contract Time. Should the Design Professional disagree with the CM/GC as to the amount of the adjustment to the Contract Time and such disagreement not be resolved between them within seven (7) days, the decision of the Design Professional as to any adjustment in the Contract Time, including any designation by the Design Professional of such time as is eligible for Time Dependent Overhead Costs, shall be final, subject to protest to the Owner of the Design Professional’s decision as set forth in Section 5 Part 2. 3.4.4.3.3 As to Other Disagreements. Should the Design Professional disagree with the CM/GC as to matters other than Contract Sum or Contract Time, the dispute shall be resolved by the Owner as set forth in Section 5, Part 2. 3.4.4.4 Change Order Conditions. All Change Orders are issued under the following conditions and shall contain the following language as appropriate: 3.4.4.4.1 For Lump Sum Change Order: The payment and extension of time (if any) provided by this Change Order constitutes compensation in full to the CM/GC and its Subcontractors and Suppliers for all costs and markups directly and indirectly attributable to the Change Order herein, for all delays related thereto and for performance of changes within the time stated. 3.4.4.4.2 For Force Account or Indefinite Amount Change Order: The payment and extension of time (if any) provided by this Change Order constitutes interim compensation to the CM/GC and its Subcontractors and Suppliers for Actual Costs and markups directly and indirectly attributable to the Change Order herein, for all delays related thereto and for performance of changes within the time stated. 3.4.4.4.3 For All Change Orders: Any changes or reservations by the CM/GC to the standard representations and releases contained in a Change Order (examples of which are included in Exhibits G through I attached hereto), or refusal of the CM/GC to perform an executed Change Order, shall be a material breach of this Contract that may be sufficient cause to issue a declaration of default. 3.4.5 All Cost and Time Impacts to be Included. Each Change Order shall include all time and monetary impacts of the change. Failure to include a change in Contract Time or in Contract Sum in Change Orders shall be considered a zero price/zero time Change Order and shall waive any change in Contract Time and Contract Sum. Commencement of Work upon a Change Order is conclusive proof that the CM/GC accepts the Change Order. 3.4.6 Changes in Contract Time. All Change Orders must state that the Contract Time and the Final Completion Date either are not changed or are increased or decreased by a specific number of Days. The CM/GC must provide written justification for the extension to the Design Professional and to the Owner. The written justification must demonstrate an anticipated actual increase in the time required to complete the Work beyond that allowed by the Contract as adjusted by prior Change Orders to the Contract. No extension to the Contract Time shall be allowed unless the additional or changed Work increases the length of the critical path beyond the Final Completion Date. If approved, the increase in time required to complete the Work shall be added to the Contract Time. The Owner may decrease, by Change Order, the Contract Time when an Owner-requested deletion from the Work results in a decrease in the actual time required to complete the Work as demonstrable on the critical path of the Construction Progress Schedule. Eligibility and processing requirements for Time Dependent Overhead Costs for compensable delay is addressed in Article 3.4.8, 3.5.8 and 3.5.10. 3.4.7 Determining the Cost to Owner for Changes. The cost to the Owner of any change shall be determined in one or more of the following ways: 3.4.7.1 Lump Sum. The Change Order cost is determined by mutual agreement as a lump sum amount changing the Contract Sum allowed for completion of the Work. The Change Order shall be substantiated by documentation itemizing the estimated quantities and costs of all labor, materials and equipment required as well as any mark-up used. The price change shall include the cost percent allowed for the CM/GC's overhead and profit and, if eligible, Time Dependent Overhead Costs. 3.4.7.2 Unit Price Work. The Change Order cost is calculated by using Unit Prices and calculating the number of net units of Work in each part of the Work that is changed, either as the Work progresses or before Work on the change commences, and by then multiplying the calculated number of units by the applicable Unit Price set forth in the Contract, or by a mutually agreed Unit Price if none was provided in the Contract. No additional percentage markup for overhead or profit shall be added to the Unit Prices as this markup is included within the Unit Prices. Time Dependent Overhead Costs will be added if eligible. Section 3 – Construction Phase Part 4 – Changes to the Work 52 General Requirements 3.4.7.3 Force Account. The Change Order cost is accomplished by Force Account in the event the CM/GC and Design Professional cannot agree on the cost of the Change Order or the cost cannot be reasonably determined prior to beginning the Work. A form of the Change order for Force Account or Indeterminate Units is attached hereto as Exhibit I and incorporated herein by reference. 3.4.7.3.1 A Force Account is the establishment by the Owner’s Incumbrance Record of a maximum dollar amount (Stipulated Maximum Sum) beyond which no changed Work may be undertaken, subject to amendment, for funding all costs of a Change Order. As the Work authorized by the Change Order progresses, the CM/GC must provide an accounting of Actual Costs incurred in accomplishing the Work. The accounting must include an annotated copy of the Overall Project Schedule to accurately show the status of the Work at the time the Change Order utilizing a Force Account is issued, to show the start and finish of the changed Work, and to show the status of the Work when the changed Work is completed. 3.4.7.3.2 Actual Costs incurred in relation to Change Order using Force Account, except as otherwise agreed to in writing by the Owner, shall not exceed those prevailing for the trades or crafts, materials, and equipment in the locality of the Project, may include only those items listed as allowable in Article 3.4.9, and shall not include any of the costs listed as not allowable in Article 3.4.10. The Owner shall be permitted, on a daily basis, to verify such records and may require such additional records as are necessary to determine the cost of the change to the Work. 3.4.7.3.3 The Owner shall prescribe the dollar limit for a Force Account in writing by authorizing a Stipulated Maximum Sum of money to be committed toward execution of the said change, and the CM/GC shall have no authority to perform any change that will cost the Owner in excess of the Stipulated Maximum Sum. The Stipulated Maximum Sum shall be based on the estimated cost of the Work and the CM/GC's allowance for overhead and profit as set forth in 3.4.8 below, including any time extension, an increase in the maximum amount for Time Dependent Overhead Costs (if eligible), and a reasonable contingency. It shall be the sole responsibility of the CM/GC to apply in writing to the Owner, NOT to the Design Professional, for an increase in the Stipulated Maximum Sum if the total value of the Work is approaching and might exceed the Stipulated Maximum Sum. 3.4.7.3.4 Within fourteen (14) days of the conclusion of such Work ordered by Force Account, the CM/GC and the Owner shall arrive at the total lump sum cost for the Change Order. Such lump sum cost shall be incorporated into and finalize the Change Order, and shall reference and close the Incumbrance Record establishing the Force Account. 3.4.7.4 Breakdown of Expenditures. The CM/GC shall review any Owner requested or directed change and shall respond in writing within fourteen (14) calendar days after receipt of the proposed change (or such other reasonable time as the Owner may direct), stating the effect of the proposed change upon his Work, including any increase or decrease in the Contract Time and Sum. The CM/GC shall furnish to the Owner and the Design Professional an itemized breakdown of the quantities and prices and expenditures for labor and materials used in computing the proposed change in Contract Sum, in the form prescribed by the Owner, and the breakdown shall be accompanied by the following declaration: I do solemnly swear to the best of my knowledge, information, and belief, that the costs shown hereinabove do not exceed current costs for like services or materials in the locality of the Project and, in the case of a Force Account, the costs represented do not exceed the Actual Costs to the CM/GC; and that the quantities shown do not exceed actual requirements. The CM/GC shall obtain and furnish as back up to the CM/GC’s breakdown a separate breakdown for each Subcontractor's charges prepared by each Subcontractor on the letterhead of the Subcontractor and properly signed by the Subcontractor. The Owner shall review the CM/GC’s proposal and respond to the CM/GC within fourteen (14) days of receipt. Section 3 – Construction Phase Part 4 – Changes to the Work 53 General Requirements 3.4.8 Overhead and Profit for Change Orders. 3.4.8.1 Overhead and Profit. The percentage for overhead and profit to be used in calculating changes in the Work (not including changes covered by Unit Prices) shall not exceed the percentages for each category listed below. Said percentages for overhead and profit shall be applied only on the net cost of the changed Work, (i.e., the difference in cost between original and revised Work). There shall be no extension of time unless allowed pursuant to Article 3.5.7 or 3.5.8. 3.4.8.1.1 CM/GC. If the CM/GC self-performs the Work with its own forces or with a Subcontractor, the maximum overhead and fee will be 4.25% of the cost of the work. 3.4.8.2 The above percentages shall be applied to the net Allowable Costs, if any, as limited and defined in this Part. If the net difference between Allowable Costs and credits to the Owner results in a decrease in the Owner’s cost, the amount of credit allowed the Owner shall be the net decrease, including the 4.25% allowance for profit and overhead. Eligible Time Dependent Overhead Costs and all costs that are not Allowable Costs in Article 3.4.9 or are disallowed in Article 3.4.10 shall be considered as overhead and shall be exclusively compensated in the allowances provided for in paragraph 3.4.8.1 above. 3.4.9 Allowable Costs for Changes in the Work. Allowable cost for changes to the Work are limited to the following: 3.4.9.1 Actual labor costs for employees directly employed in the change in the Work, including salaries and wages plus the cost of payroll charges and fringe benefits and overtime premiums, if such premiums are explicitly authorized by the Owner, set at rates established in the manner set forth in Article 4.2.1. 3.4.9.2 Actual Costs for materials incorporated into the change to the Work, including costs of transportation, handling, fuel, and on-Site storage, if applicable. 3.4.9.3 Actual Costs for equipment incorporated in the changed Work or equipment used directly in accomplishing the Work. If the equipment is rented expressly for accomplishing the change in the Work, that cost shall be the rental rate according to the terms of the rental agreement, which the Owner shall have the right to approve, or shall be set at rates established in the manner set forth in Article 3.2.13.5. The decision of the Owner shall be final, binding, and conclusive on all parties. 3.4.9.4 Costs of increases in premiums for the CM/GC’s Payment Bond and Performance Bond, Insurance Premiums and for Subcontractor Default Insurance, to the extent that such increased costs are a result of coverage adjustments for changes in Work approved in writing by the Owner. Prior to requesting payment for the Change Order Work, the CM/GC shall provide proof of its notification to the Surety of the change in the Work and of the Surety's agreement to include such change in its coverage. The cost of the increase in premium shall be an allowable cost but shall not be marked up. In no event shall a cost in excess of two (2) percent of the cost of the change be allowable. CM/GC shall promptly furnish Owner with certificates demonstrating that bond/insurance coverage has been increased as indicated by the allocation for increased premiums. CM/GC’s failure to cure breach of the obligation in the preceding sentence, following reasonable notice from the Owner, shall be deemed a material breach of this Agreement. 3.4.9.5 Sales, consumer, use, and other applicable taxes that are legally in effect at the time the Change Order are approved. 3.4.9.6 Any other costs directly attributable to the change in the Work, such as professional engineering costs, except those set forth in Articles 3.4.8 and 3.4.10; provided that such costs must be reviewed for legitimacy and approved prior to becoming due. 3.4.9.7 For Change Order Work directed by the Owner, where the headquarters of the Subcontractor actually performing the Work is more than 100 miles from the Project Site, the Subcontractor may include in the cost of the Change Order a stipend of fifty (50) dollars per day for each worker performing Work at the Site if that worker is receiving a per diem under present company policy. Such stipend cost shall not exceed the number of workers and number of days determined by Design Professional’s decision to be attributable to the new Work so ordered, so long as the number of workers and number of days attributable to any deleted Work is deducted therefrom. No allowance for overhead or profit as set forth in Article 3.4.8 may be added to the Change Order cost on account of the stipend amount, and the full amount of the stipend must be actually paid to the eligible worker or it shall be forfeited by the CM/GC and Subcontractor(s). Section 3 – Construction Phase Part 4 – Changes to the Work 54 General Requirements 3.4.9.8 The Owner may require and CM/GC shall provide documentation evidencing the amount of the Allowable Costs, such documentation may include any or all of the following to be provided by the CM/GC to support the Allowable Costs: (a) certified payroll records showing the name, classification, date, daily hours, total hours, rate, and extension for each laborer, foreman, supervisor or other worker; (b) equipment type & model, dates, daily hours, total hours, rental rate or other specified rate, and extension for each unit of equipment; (c) invoices for materials showing quantities, prices, and extensions; (d) daily records of waste materials removed from the Site and/or fill materials imported to the Site; (e) certified measurements of over excavations, piling installed and similar work; (f) transportation records for materials, including prices, loads, and extensions; and/or (g) any other document that may be required to demonstrate a cost item to the extent that it is not demonstrated by the documents in the preceding list. 3.4.10 Costs Not Allowable for Changes in the Work. Costs not allowable under any circumstances are as follows: 3.4.10.1 Costs due to the negligence of the CM/GC, Subcontractors, or other persons for whom the CM/GC is responsible, including but not limited to costs of delay, costs for the correction of Non-Compliant Work, costs for improper disposal of material, costs for equipment wrongly supplied, costs for the CM/GC’s delay in performing the Work, or costs for delay in ordering and obtaining normally available materials or equipment. 3.4.10.2 Home office expenses, including payroll costs for the CM/GC's or any Subcontractors’ officers, executives, administrators, accountants, counsel, engineers, timekeepers, estimators, clerks, and other similar administrative personnel employed by the CM/GC or any Subcontractor, whether at the Site or in the CM/GC's or a Subcontractor’s principal or branch office for general administration of the Work (including those referred to as “Eichleay costs”). These costs are deemed overhead included in the percentage markups allowable in Article 3.4.8 above. 3.4.10.3 Home and branch office expenses that include, but are not limited to, expenses of CM/GC's home and branch offices, CM/GC's capital expenses, interest on CM/GC's capital used for the Work, charges for delinquent payments, small tools, incidental costs, rent, utilities, telephone and office equipment, and other general overhead expenses of the home and branch office (including those referred to as “Eichleay costs”). 3.4.10.4 Where Work is deleted from the Contract (by Bulletin, Change Order, or otherwise) prior to commencement of that Work without substitution of other similar Work, one hundred (100) percent of the Contract Sum attributable to that Work shall be deducted from the Contract Sum. However, in the event that material Submittals have been approved and orders placed for said materials, a lesser amount as justified by proper documentation and approved by the Owner shall be deducted from the Contract Sum. The credit, if any, to the Owner for reduced premiums on payment bonds and performance bonds shall be in all cases one hundred (100) percent of the credit. If the deductive Change Order affects the critical path or the schedule and it causes an overall reduction in the Contract Time, jobsite time dependent expenses shall be included in the deduction at the rate established in the Contract for Time Dependent Overhead Costs. 3.4.10.5 Wages of a foreman, if the foreman is concurrently supervising other Work at the Site. 3.4.10.6 Premiums for bonds required of Subcontractors by the CM/GC. 3.4.11 Change Order Formats. Formats for Lump Sum Change Orders and for Change Orders based upon either a force account are attached hereto as Exhibit I and incorporated herein by reference. Section 3 – Construction Phase Part 4 – Changes to the Work 55 General Requirements 3.4.12 Changes due to Subsurface or Other Unforeseen Conditions. 3.4.12.1 Subsurface Conditions. Unless the the Owner provides geotechnical testing that shows specific quantities and units of rock or unsuitable soils, the CM/GC shall assume material below the surface of the Earth to be earth and other material that can be removed by power shovel or similar equipment. 3.4.12.2 Other Unforeseen Conditions. If unknown physical conditions are encountered at the Site that differ materially from those indicated in the Contract Documents, then the CM/GC shall give notice to the Design Professional promptly before conditions are further disturbed, but in no event later than two (2) Business Days after the first observance of the conditions. The Design Professional shall promptly investigate such conditions and, if they differ materially and cause an increase or decrease in the CM/GC's cost or time required for performance of any part of the Work, the Design Professional may recommend an adjustment by Change Order to the Contract Sum or Contract Time, or both. If the Design Professional determines that the conditions at the Site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Design Professional shall so notify the Owner and the CM/GC in writing, stating the reasons. Protest by either party of the Design Professional’s decision shall be in accordance with Section 5, Part 2. 3.4.13 Compensable Rock. CAUTION: No rock for which extra compensation is expected to be received shall be removed except pursuant to and in conformity with a written authorization or order of the Owner. Unless otherwise provided in the Bid Documents, no removal of rock as defined herein shall be included in the Bid. 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. 3.4.13.1 Definitions of Compensable Rock. Rock, for the purposes of pricing its removal, is defined as follows: 3.4.13.1.1 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 (1) cubic yard. 3.4.13.1.2 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 (1) cubic yard. 3.4.13.1.3 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. 3.4.13.1.4 Caisson Rock. Caisson Rock is defined as material that must be removed from a shaft which cannot be penetrated faster than two (2) feet per hour (fifteen (15) 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 a downward force of at least 50,000 pounds (a Hughes LLDH in good working condition) for piers up to seventy two (72) inches in diameter. Use of equipment with greater torque or downward force modifies the definition of refusal to be the point at which the equipment cannot penetrate faster than two (2) feet per hour (fifteen (15) 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. 3.4.13.2 Pricing for Compensable Rock. All compensable rock shall be priced by Unit Prices 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 determined prior to removal, either in the Contract Documents or by Change Order. Unit Prices shall be inclusive of all profit and overhead, except for Time Dependent Overhead Costs. Unit Prices shall include the following: (a) Excavation and removal of all rubble; (b) Addition and removal of overburden for blasting; (c) Excavation of all blast rubble; Section 3 – Construction Phase Part 4 – Changes to the Work 56 General Requirements (d) Replacement of suitable soils in areas of overblasting or over removal; and (e) All costs of labor, equipment, supplies, blasting materials, safety requirements, drayage, haulage, and disposal, including offsite disposal costs. The CM/GC expressly agrees that the CM/GC’s sole monetary remedy for extensions of Contract Time due to removal of rock that materially affects the completion of the Work by lengthening the critical path of the Overall Project Schedule shall remain limited by the maximum amount for Time Dependent Overhead Costs (as amended) in the Contract. Extensions of Time and compensation for Time Dependent Overhead Costs for compensable rock are to be processed as a Change Order pursuant to Article 3.4.6. 3.4.14 Subcontractor Claims for Extended Overhead Costs. The daily rate for Time Dependent Overhead Costs established in the Contract is intended to compensate the CM/GC for the additional jobsite overhead costs resulting from any compensable time extension. The CM/GC, in its sole discretion, shall be responsible for allocating the Time Dependent Overhead Costs among its affected Subcontractors and itself. Owner’s payment of the Time Dependent Overhead Costs to the CM/GC, and CM/GC’s allocation thereof, shall constitute the only monetary compensation the CM/GC and Subcontractors shall be entitled to receive as reimbursement for Time Dependent Overhead Costs incurred as a result of any compensable delay to the Project. 3.4.15 Release of Claims. The execution by the CM/GC of a Change Order shall be and operate as a release to the Owner of all claims by the CM/GC and of all liability owing to the CM/GC for all things done or furnished in connection with the Work described in the Change Order. The execution of any Change Order by the Owner shall not be an acceptance of any Work or materials not in accordance with the Contract Documents, nor shall it relieve the CM/GC of responsibility for faulty materials or workmanship or operate to release the CM/GC or his surety from any obligation arising under the Contract or the Performance Bond or Payment Bond. 3.4.16 Sole Source Designation for Change Order Work. 3.4.16.1 Definition of Sole Source. As used in this Article 3.4.16, “Sole Source” means a Trade Contractor or Supplier or Subcontractor specified by name in a Bulletin as the exclusive source from which conforming goods or services may be obtained. Designation of goods or services by reference to a named source accompanied by the qualification “or equal” or similar language is not a designation of a Sole Source as that term is defined herein. 3.4.16.2 Limitations. This Article 3.4.16 applies only to Bulletins referenced in a proposed Change Order that designate a Sole Source that was not designated in the Bidding Documents. Except as stated in this Article, the CM/GC’s inability to obtain payment and performance bonds from Sole Source Subcontractors or warranties from Subcontractors, as required under the Bidding Documents for this Contract, shall not otherwise excuse the CM/GC from its bonding and warranty obligations under this Contract. 3.4.16.3 Sole Source as Grounds for Rejection of a Change Order. If a Change Order is submitted to CM/GC for the purposes of adding a Bulletin to this Contract and said Bulletin designates a Sole Source from which CM/GC is required to procure goods or services necessary to perform the Work, which Sole Source has not been designated previously, CM/GC shall be entitled to reject the proposed Change Order if the designated Sole Source refuses to provide to CM/GC the warranties, bonds, terms or schedule required under the Contract Documents, including any warranty or terms or schedule required by Bulletins referenced in the proposed Change Order. In such event, CM/GC shall give written notice to the Owner rejecting the proposed Change Order and, if possible, shall accompany said written notice with a proposal from CM/GC for changes or modifications to the Bulletin so as to eliminate the Sole Source designation but to achieve goods or services equal in quality or function. The Owner may then require the Design Professional to revise the subject Bulletin so as to eliminate the designation of the Sole Source by incorporation of CM/GC's proposal or otherwise. Upon revision of the Bulletin by the Design Professional and approval thereof by the Owner, the Owner shall again submit to the CM/GC a proposed Change Order for the purpose of adding the revised Bulletin to this Contract. If the Owner decides to retain the Sole Source in the Change Order and CM/GC cannot acquire the full contractually required warranties from the Sole Source, CM/GC shall be held only to the warranty terms and schedule obtainable from the Sole Source; provided that such warranty terms and schedule must be approved in writing by Owner prior to being accepted. 3.4.16.4 No Excuse Without Notice. If CM/GC accepts a proposed Change Order adding a Bulletin to this Contract that designates a Sole Source without invoking this Article and putting the Owner on notice, CM/GC shall not be excused from its obligations with respect to the described Work by reason of the refusal of a designated Sole Source to provide warranties as required under this Contract. 3.4.17 Effect of Change Order. A Change Order takes precedence over any inconsistent terms of the Contract Documents preexistent to the Change Order. Section 3 – Construction Phase Part 4 – Changes to the Work 57 General Requirements [Remainder of Page Intentionally Left Blank] Section 3 – Construction Phase Part 5 – Time 58 General Requirements PART 5 – TIME. 3.5.1 Time is of the Essence. Time is of the essence of this Contract and all obligations hereunder. Unless otherwise approved, the CM/GC shall perform its obligations under this Contract as expeditiously as is consistent with reasonable skill and care and the orderly progress of the Work. 3.5.2 Competent Management of Time. The CM/GC has represented to the Owner, in order to be awarded this contract, that the CM/GC is experienced in managing construction in accordance with contract requirements and in a timely manner and that the CM/GC has included in his proposal sufficient sums to carefully and competently manage this Project for completion by the Material Completion Date. 3.5.3 Contract Time. 3.5.3.1 Fair and Reasonable. The CM/GC has carefully examined and analyzed the Site, the Contract Documents, and all known factors related to his ability to complete this Project by the Material Completion Date. By submitting his bid for this Project, the CM/GC agrees that the Material Completion Date is fair and reasonable. 3.5.3.2 Delays. The parties recognize there may be delays to perform Change Order Work in the event that conditions encountered at the Site are different from those indicated in the Contract Documents, or to perform Change Order Work to correct errors in the plans and Specifications. Execution of any change must be authorized. In such event, there may be an adjustment in the GMP, as provided in the Contract Documents for changes in the Work and agreed upon in a Change Order executed by Owner and CM/GC. The parties agree that such delays are not a ground for claiming extraordinary remunerations, except as set forth in this Contract in Article 3.5.8 below. 3.5.3.3 Termination and Automatic Renewal. The term of this Contract is expected to be longer than one calendar year. Therefore, the parties agree that this Contract, as required by O.C.G.A. § 36-60-13, shall terminate absolutely and without further obligation on the part of the Owner on December 31 each calendar year of the term, and further, that this Contract shall automatically renew on January 1 of each subsequent calendar year, without lapse, absent the City of Milton City Council taking positive action to terminate this Contract in a public meeting and such action being entered upon the Official Minutes of the City of Milton City Council. This Agreement shall terminate immediately and absolutely at any such time as there are no appropriated and otherwise un-obligated funds available to satisfy the Owner’s obligations under this Agreement. Title to any supplies, materials, equipment, or other personal property shall remain in CM/GC until fully paid for by the Owner. If such event described above occurs, it will be trated as a Termination for Convenience as described herein. 3.5.4 Commencement, Prosecution, and Completion. 3.5.4.1 Commencement, Prosecution, and Completion of Work. The CM/GC will be required (a) to commence the Work under this Contract on the applicable Proceed Order Date, (b) to prosecute the Work with faithfulness and energy (c) to install the various parts of the Work with equal steps shown on the Overall Project Schedule and at the same rate (or better) shown on the Overall Project Schedule and (d) to complete the Work within the Contract Time, as amended. Commencement of the Work shall mean actual physical work on the Site. Unless otherwise agreed, and subject to Change Orders, Material Completion of the Project must be achieved on or before the date established as the Material Completion Date under the Overall Project Schedule, and Final Completion must be achieved on or before the thirtieth (30th) day following the Material Completion Date provided in the Overall Project Schedule. 3.5.4.2 CM/GC’s Acceleration for failure to meet Schedule Requirements. In the event the CM/GC shall be delinquent in respect to achieving the Milestone dates established in the Overall Project Schedule, CM/GC shall, within seven (7) days after receipt of written demand of the Owner, cause its employees and Subcontractors to perform Work at an accelerated pace with hours and days in addition to the normal working hours and working days, as necessary to promptly bring the Work into compliance with the Overall Project Schedule. Fulfillment of this requirement as to overtime work shall not relieve the CM/GC from liability for breach of the covenant as to time. For account of recovery of lost time required of the CM/GC for its breach of covenant as to time, the CM/GC shall be entitled to no Claim against the Owner for any payment, repayment, reimbursement, remittance, remuneration, compensation, profit, cost, overhead, expense, loss expenditure, allowance, charge, demand, hire, wages, salary, tax, cash, assessment, price, money, bill, statement, dues, recovery, restitution, benefit, recoupment, exaction, injury or damages. 3.5.5 Construction Progress Schedule and Overall Project Schedule. Section 3 – Construction Phase Part 5 – Time 59 General Requirements 3.5.5.1 Submittal, Approval, and Updates. Not later than sixty (60) days after the Effective Date of the Contract, but prior to the Proceed Order, the CM/GC must submit a Construction Progress Schedule in accordance with Section 2.1.5. 3.5.5.2 Approval of Overall Project Schedule. Upon recommendation by the Design Professional and approval by the Owner, the Construction Progress Schedule shall be combined with the design schedule agreed upon by Owner and Design Professional and shall collectively become the Overall Project Schedule part of this Contract. The Overall Project Schedule shall govern the schedule of activities of the CM/GC under this Contract. 3.5.5.3 Monthly Updates. The CM/GC must provide the Design Professional and the Owner with monthly updates of the Overall Project Schedule indicating completed activities and any changes in sequencing or activity durations. Such reports shall be provided in the form indicated in Exhibit D attached hereto and incorporated herein by reference. (See also Articles 2.1.2 and 2.1.5). 3.5.6 Completion Date. The Work under this Contract shall be completed by midnight on the thirtieth (30th) calendar day following the date required in the Contract as the Material Completion Date unless extended by approved requests for extension of time. 3.5.7 General Rule – No Damages for Delay, Extension of Time Sole Remedy. CM/GC shall not be entitled to any damages for delay or to any other reimbursement as a Cost of the Work, or to an increase in the Contract Sum, or to payment, damages, monies, or compensation of any kind from Owner for direct, indirect, impact, or disruption damages (including but not limited to costs of acceleration of Work or any Phase thereof) arising because of delay or other hindrance of any kind whatsoever; except as specifically permitted by Article 3.5.8. Extension of the time is the CM/GC's sole remedy for any delays not the fault of the CM/GC. 3.5.8 Exception to General Rule – Compensable Delay. The extension of the Contract Time and the adjustment to the Contract Sum specifically provided for in this Article shall be CM/GC’s sole and exclusive remedy for delays, hindrances, interferences or resulting inefficiencies and re-sequencing. 3.5.8.1 Compensable Delay – Unavoidable Delay. 3.5.8.1.1 Delay by Owner or Design Professional. If the CM/GC is delayed in the progress of the Work between the Proceed Order Date and the Final Completion Date, as amended, by an act or neglect of the Owner, Owner's employees, Design Professional or Separate Contractors employed by the Owner, or by other causes beyond the CM/GC's control which the Design Professional determines are the fault of the Owner or the Design Professional and may justify delay, then the Contract Time will be extended by Change Order for such reasonable time as the Design Professional and the Owner may determine; provided, however, that (i) such delays extend the Overall Project Schedule’s critical path; (ii) the CM/GC has taken all reasonable actions to mitigate the effects of the delay on the Work; (iii) the fault or negligence of the CM/GC, the CM/GC's agents or employees did not materially contribute to such causes; and (iv) the CM/GC shall have notified Owner of the cause or causes of such delay within fourteen (14) days from the date on which the CM/GC first becomes aware of such delay. 3.5.8.1.2 Delay in Responses to Submittals. Any Claim by CM/GC for a change in the Material and/or Final Completion Date due to delay of responses to Submittals that materially affect the completion of the Work by lengthening the critical path of the Construction Progress Schedule may be made during the time while the failure of the Design Professional to act or perform continues, or within seven (7) days after such failure to act or perform has been cured. If no Submittal Schedule or agreement, as required in Paragraph 2.2.5.1, is agreed upon, then a Claim for delay will be allowed only after the Design Professional has been allowed fourteen (14) days to take action. Any Claim for extension of time must be reasonable and take into consideration the nature of the Submittal. 3.5.8.1.3 To be Processed as a Part of the Change Order Process. Extensions of time and compensation for Time Dependent Overhead Costs for Unavoidable Delay are to be processed as a Change Order pursuant to Article 3.4.6. 3.5.8.2 Compensable Delay – Certain Change Orders. 3.5.8.2.1 Owner-Requested Changes. If the Owner requests changes in the Contract Documents that would materially affect the completion of the Work by lengthening the critical path of the Overall Project Schedule, the Design Professional shall determine the appropriate number of days and, upon approval of such extension by Owner and CM/GC, thereby extend the Material Completion Date by Change Order. Section 3 – Construction Phase Part 5 – Time 60 General Requirements The CM/GC expressly agrees that the CM/GC’s sole monetary remedy for such extensions of Contract Time related to Owner-requested Change Orders shall remain limited by the maximum amount for Time Dependent Overhead Costs (as amended) in the Contract. 3.5.8.2.2 Other Change Orders. For Change Orders involving the following situations that would materially affect the completion of the Work by lengthening the critical path of the Construction Progress Schedule, the Design Professional shall determine the appropriate number of days and, upon approval of such extension by Owner and CM/GC, thereby extend the Material Completion Date. The CM/GC expressly agrees that the CM/GC’s sole monetary remedy for such extensions of Contract Time shall remain limited by the maximum amount for Time Dependent Overhead Costs (as amended) in the Contract. (a) Changes due to Subsurface or Other Unforeseen Conditions, Article 3.4.12. (b) Changes for Compensable Rock, Article 3.4.13. (c) Changes deleting Work, Paragraph 3.4.10.4 3.5.8.2.3 To be Processed as a Part of the Change Order Process. Extensions of Time and compensation for Time Dependent Overhead Costs for all Change Orders are to be processed as a part of each Change Order pursuant to Article 3.4.6. 3.5.8.3 Compensable Delay – Force Majeure. If, between the Proceed Order Date and the Final Completion Date, as amended, the CM/GC is unable to perform or is delayed in the performance of any of the terms and provisions of this Contract, that materially affects the completion of the Work by lengthening the critical path of the Overall Project Schedule, as a result of (i) any cause beyond CM/GC’s reasonable control; (ii) any change in applicable governmental rules or regulations rendering performance of any provision of this Contract legally impermissible; (iii) any governmental preemption of materials in connection with a national emergency declared by the President of the United States; (iv) any war, hostility, embargo, sabotage, civil disturbance, riot, insurrection, invasion, acts of terror or terrorism or other civil disorder affecting performance of the Work; (v) strike or labor dispute, excluding strikes or labor disputes by employees and/or agents of CM/GC, that could not be reasonably anticipated, or (vi) any earthquake, fire, explosion, flood, or unusual and extreme weather conditions constituting Acts of God, then, and in any such event, such inability or delay shall be excused, and the time for completing the affected portions of the Project (and the entire Project, if applicable) shall be extended for such reasonable period of time as the delay has affected the critical path of the performance of the Work hereunder, GM/CG shall be compensated (by additional Time Dependent Overhead Costs and general conditions costs based on the per day rate provided for herein) for additional costs related thereto for each day of such delay in excess of 10 days and all other obligations shall remain intact. 3.5.8.3.1 Mitigation of Delay. CM/GC shall take all reasonable actions to minimize the delay caused by any of the above factors, and shall notify Owner in writing with a copy to the Design Professional of any event allowing for excuse or delay not later than seven (7) days after the CM/GC first becomes aware of the event, or should have become aware, of the event; otherwise CM/GC will be deemed to have waived the excuse or delay. 3.5.8.3.2 To be Processed as a Part of the Change Order Process. Extensions of Time and increased costs are to be processed as a Change Order pursuant to Article 3.4.6; and compensation for Time Dependent Overhead Costs shall be provided for Force Majeure to the extent such delay exceeds 10 days. 3.5.8.4 Compensable Delay – Abnormal Weather. Extensions of time and additional costs related thereto (including, additional Time Dependent Overhead Costs and general conditions costs based on the per day rate provided for herein) will be granted for abnormal inclement weather conditions that delay the critical path of the progress of the Work. Compensable delays for abnormal weather will only be considered for abnormal weather events occurring in the time period between the physical start of construction, as determined by the Design Professional, and May 18, 2016. After May 18, 2016, non-compensable extensions of time only may be granted for abnormal weather. 3.5.8.4.1 Abnormal weather delay is defined as days lost due to abnormal weather conditions for a number of days in excess of a local historic average prevailing at the Site recorded by the National Oceanic and Atmospheric Administration (NOAA) for the 120 months immediately preceding the Proceed Order Date. Section 3 – Construction Phase Part 5 – Time 61 General Requirements 3.5.8.4.2 Not later than ten (10) days after the first day of any event giving rise to a Claim for extension of time as a result of abnormal weather, and not later than ten (10) days following the conclusion of such event the CM/GC shall file a Claim with the Design Professional with a copy to the Owner. By not later than fifteen (15) days from the receipt of the Claim, the Design Professional shall render a decision concerning the allowance of an extension of time and shall report his decision to both the CM/GC and the Owner. 3.5.8.4.3 Extensions of Time are to be processed as a Change Order pursuant to Article 3.4.6; compensation for Time Dependent Overhead Costs shall be payable only from the Construction Contingency. 3.5.8.4.4 If, in the opinion of the Design Professional, site conditions would permit work to continue on the site on a aparticular date then no extension of time or compensation shall be granted for that date under this section. CM/GC shall take all reasonable actions to minimize the delay caused by abnormal weather conditions. 3.5.8.5 Protest. The Design Professional’s decision as to abnormal weather delay shall be subject to protest by either the CM/GC or the Owner as set forth in Section 5, Part 2. 3.5.9 Non-Compensable Delay. CM/GC understands, acknowledges and agrees that delays occasioned by the events and occurrences set forth below are not Compensable Delays and do not constitute reason for extending the Date for Material Completion or Date for Final Completion. It is CM/GC's responsibility to make adequate provision for the following in scheduling the Work: 3.5.9.1 Normal Weather Conditions. Weather conditions other than those that substantially vary from the normal climatology conditions that prevailed at the Site for the preceding 120 months, as evidenced by data published by the National Oceanic and Atmospheric Administration. Based on the historical NOAA weather records for this site, the number of weather days (i.e. days on which site conditions would not permit work) expected for the entire construction schedule is 39 work days (inclusive of 15 work days listed below). For the period identified in Section 3.5.8.4 the number of weather days is 15 work days. Any weather days experienced in excess of this expected number reflect abnormal weather conditions. 3.5.9.2 Delay in Delivery of Materials or Equipment. Delay in delivery of materials or equipment for any cause other than those specified in Paragraph 3.5.8.3. No claim will be approved if materials or equipment are delayed due to CM/GC's tardy procurement or expediting. 3.5.9.3 All Other Delay. All delay not covered in Article 3.5.8. 3.5.10 Submission of Claims for Compensable Delay, Extending the Material Completion or Final Completion Date. 3.5.10.1 Time for Submission. Except as specified below, any claim by CM/GC for a change in the Contract Time or the Material Completion or Final Completion Date shall be made within fourteen (14) days of the day on which the CM/GC becomes aware of the event on which the claim is based or, if the Contract Documents specify a shorter or longer period with respect to such event, within the period specified by the Contract Documents. 3.5.10.2 Delay Claim Must Be In Writing. Any claim to extend the Contract Time and Material Completion or Final Completion Date must be in writing, must set forth in detail the basis for the claim and the number of days of delay claimed, must be correlated with the approved Overall Project Schedule, must be executed by the CM/GC and delivered to the Design Professional and the Owner, and must be reviewed and an appropriate time assessed by the Design Professional. 3.5.10.3 When Delay Claim Deemed Waived. Any claim to extend the Contract Time and Material Completion or Final Completion Date not made in writing to Owner within the above time periods shall be deemed waived and shall not thereafter be valid. In the case of a continuing delay as a result of a single event, only one (1) claim submission is necessary. Section 3 – Construction Phase Part 5 – Time 62 General Requirements 3.5.10.4 Design Professional to Decide. The Contract Time and the Material Completion and Final Completion Date may be extended for such reasonable time as the Design Professional may decide, and the Overall Project Schedule shall then be updated via a properly executed Change Order. 3.5.10.5 Payment for Extensions of Contract Time. The CM/GC expressly agrees that the CM/GC’s sole monetary remedy for Compensable Delay shall remain limited by the maximum amount for Time Dependent Overhead Costs (as amended) in the Contract. 3.5.11 Recovery of Schedule Delays. 3.5.11.1 Recovery of Schedule Delays. If the Design Professional determines that the Project is two (2) weeks or more behind schedule, per the approved Overall Project Schedule, the Design Professional shall so notify the CM/GC in writing. Within seven (7) days of the date of the Design Professional's notice, the CM/GC shall deliver to the Design Professional and Owner a written plan explaining how the CM/GC intends to bring the Project back on schedule. The CM/GC's plan must provide sufficient detail to allow the Design Professional and Owner to determine the proposal's feasibility. 3.5.11.2 Recovery of Schedule Delays During Last Sixty (60) Days of Contract Time. At any time during the last sixty (60) days of the Contract Time that the Design Professional finds that the CM/GC is behind schedule per the Contract Time, as amended, the Design Professional shall notify the CM/GC in writing. Within seven (7) days of the date of the Design Professional's notice, the CM/GC shall prepare and deliver to the Design Professional and Owner a written plan explaining how the CM/GC intends to bring the Project back on schedule. The CM/GC's plan must provide sufficient detail to allow the Design Professional and Owner to determine the proposal's feasibility. Should the Design Professional deem the plan of action inadequate, the CM/GC shall take additional steps to make adjustments as necessary to its plan of action until it meets with the Design Professional approval. 3.5.11.3 Payment of Costs of Recovery of Schedule Delays. Costs attributable to recovery of non-compensable schedule delays, after execution of the GMP Change Order, may be paid from the Construction Contingency. [Remainder of Page Intentionally Left Blank] Section 3 – Construction Phase Part 6 – Correcting the Work; Inspections, Covering And Uncovering Work 63 General Requirements PART 6 – CORRECTING THE WORK; INSPECTIONS, COVERING AND UNCOVERING WORK 3.6.1 Duty to Promptly Correct Work. The CM/GC shall promptly correct Work rejected by the Design Professional or Owner or known by the CM/GC to be defective, damaged, or failing to conform to the requirements of the Contract Documents, whether observed before or after Final Completion and whether or not designed, fabricated, installed, or completed. The CM/GC shall bear costs of correcting such rejected Work, including without limitation additional testing and inspections. 3.6.1.1 Full and Complete Charge. Notwithstanding the provisions of this Contract, and until final acceptance of the Work by the Owner, the CM/GC shall have full and complete charge and care of the Work or any portion thereof (including the Owner-furnished supplies, material, equipment, or other items to be utilized or incorporated in the Work). 3.6.1.2 Make Good Losses. The CM/GC shall rebuild, repair, restore, and make good losses of, and injuries or damages to, the Work or any portion thereof before final acceptance of the Work. Such rebuilding, repair, or restoration may be paid from the Construction Contingency; provided, however, that the Owner and CM/GC may also look to proceeds from the Builders’ Risk policy required by the Contract Documents, where applicable and available. Nothwithstanding anything to the contrary herein, Owner shall insure all Owner-furnished supplies, material, equipment, or other items to be utilized with, or incorporated in, the Work and that are at the Site (“OFE”) under its property insurance policy and shall bear the full risk of loss on such OFE. For the sake of clarity, above Section 3.6.1.2 and any indemnity provision herein or hereunder shall not apply to OFE. Upon written request to GM/GC and subject to the provisions of GM/GC builer’s risk policy, Owner may request that OFE be added to the Builder’s Risk policy. If OFE is added to the Builder’s Risk policy the above Section 3.6.1.2 shall apply to such OFE, Owner shall provide a value and description to CM/GC of such OFE to be covered thereunder, and CM/GC shall be entiteled to reimbursement for any premiums associated therewith whether through Change Order or as part of the GMP. 3.6.1.3 No Limitation. Nothing contained in this Part shall be construed to establish a period of limitation with respect to the CM/GC's obligations to correct defective or non-conforming Work under this Contract, at law or in equity. 3.6.2 Correcting the Work. 3.6.2.1 Notice of Non-Compliant Work. A Notice of Non-Compliant Work shall be in writing, shall be dated, shall be signed by the Design Professional, shall be addressed to the CM/GC with a copy to the Owner, and shall contain three elements as follows: 3.6.2.1.1 Description of Work (a) that has been omitted or (b) that is unexecuted as of the date of the Notice of Non-Compliant Work, the time for its incorporation into the Work as planned in the Overall Project Schedule having expired, or (c) that has not been executed in accordance with the methods and materials designated in the Contract Documents. 3.6.2.1.2 Contract References: Citation of the provision or provisions of the Contract Documents which specify the Work to be executed. 3.6.2.1.3 Time for Compliance. Fixing of a reasonable space of time within which the CM/GC shall have made good the deficiency (which said space of time shall not be deemed to be an extension of Contract Time, nor shall it be deemed to be authorization for amendment to the Overall Project Schedule). 3.6.2.2 Failure to Supply Workmen or Materials or to Prosecute the Work. A Notice of Non-Compliant Work may be issued for failure of the CM/GC to supply enough workers or enough materials or proper materials to prosecute the Work. A Notice of Non-Compliant Work in such event may be based upon deficiencies in management of time. 3.6.2.3 Removal and Making Good of Non-Compliant Work. The CM/GC shall remove from the Site within the space of time designated in Notice of Non-Compliant Work all Work determined by the Design Professional as failing to conform to the Contract Documents, whether incorporated in the Work or not, and the CM/GC shall Section 3 – Construction Phase Part 6 – Correcting the Work; Inspections, Covering And Uncovering Work 64 General Requirements promptly replace and re-execute the Work in accordance with the Contract Documents and without expense to the Owner and shall bear the expense of making good all Work of other Contractors destroyed by such removal or replacement. The CM/GC shall supply any omitted Work and perform all unexecuted Work within the space of time fixed by the Design Professional in Notices of Non-Compliant Work. Section 3 – Construction Phase Part 6 – Correcting the Work; Inspections, Covering And Uncovering Work 65 General Requirements 3.6.2.4 Remedy of the Owner for Breach of Notice of Non-Compliant Work. 3.6.2.4.1 Failure to Make Good a Deficiency. If the CM/GC does not make good a deficiency within a reasonable space of time fixed in a Notice of Non-Compliant Work, the Owner may do any of the following: (a) Remove the Non-Compliant Work and store it at the expense of the CM/GC. If the CM/GC does not pay the expenses of such removal and storing within ten (10) days after receipt of written demand of the Owner, the Owner may upon three (3) days' notice in writing to the CM/GC sell such materials at private sale or at auction and shall account for the net proceeds thereof after deducting all proper costs incurred by the Owner. (b) Supply omitted Work, perform unexecuted Work, or replace and re-execute Work not done in accordance with the methods and materials designated in the Contract Documents, and deduct the cost thereof from any payment then or thereafter due the CM/GC. The Design Professional shall approve the amount charged to the CM/GC. 3.6.2.4.2 Other Remedies. The remedies stated in this article are in addition to the remedies otherwise available to the Owner, do not exclude such other remedies, and are without prejudice to any other remedies. Time limits stated in Notices of Non-Compliant Work are of the essence of the Contract. Unless otherwise agreed to by the Owner in writing, the making good of Non-Compliant Work shall physically commence at the Site in not more than seven (7) days after receipt of the Notice of Non-Compliant Work, except that, in case of emergency, correction shall physically commence at the Site at once, and except that the CM/GC shall in any event physically commence the correction at the Site early enough to complete the correction within the space of time allowed in the Notice of Non-Compliant Work; provided such time is reasonable. The Owner shall give prompt consideration to reasonable requests for delay in commencement of the making good of Notices of Non-Compliant Work. The making good of Non- Compliant Work shall be completed within the space of time allowed in the Notice of Non-Compliant Work unless the CM/GC shall have requested from the Design Professional an increase in the amount of time allowed and the Design Professional shall have given notice to the CM/GC in writing, with copy to the Owner, stating the additional amount of time, if any, allowed. 3.6.2.5 Notice of Correction from CM/GC. The CM/GC shall give prompt notice in writing to the Design Professional, with copy to the Owner, upon completion of the correction of the Non-Compliant Work. In the absence of such notice, it shall be and is presumed under this Contract that there has been no correction, supplying remedy, or performance of unexecuted Work. 3.6.2.6 The Owner's Right to Correct Work. If the CM/GC should neglect to prosecute the Work properly or fail to correct Non-Compliant Work or fail to perform any provision of this Contract, the Owner, after three (3) days' written notice to the CM/GC, may without prejudice to any other remedy it may have (including without limitation remedies against the CM/GC’s surety), make good the deficiencies and may deduct the cost thereof from the payment then or thereafter due the CM/GC. 3.6.3 No Delay. Work requiring correction shall be corrected immediately and shall be carried out in such a way not to delay the completion of the Project. If it is not feasible to correct said Work immediately, the corrective Work shall be done on a schedule acceptable to the Owner. 3.6.4 Inspection of Work. 3.6.4.1 Access to Work. At all times, the Design Professional and his representatives shall have access to the Work wherever it is in preparation or progress, and the CM/GC shall provide proper facilities for such access and for inspection. 3.6.4.2 Notice to Design Professional from CM/GC Prior to Covering Work. If the Specifications, the Design Professional's instructions (either in the Specifications or issued later in writing), laws, ordinances, or any public authority require any Work to be specially tested or approved, the CM/GC shall give the Design Professional timely notice in writing of its readiness for inspection and, if the inspection is by any authority other than the Design Professional, will tell the Design Professional the date fixed for such inspection. Inspections by the Design Professional shall be made promptly and, where practicable, at the source of supply. If any Work should be covered without approval or consent of the Design Professional, said Work must, if required by the Design Professional, be uncovered for examination at the CM/GC's expense. 3.6.4.3 Fire Marshal Inspections. Section 3 – Construction Phase Part 6 – Correcting the Work; Inspections, Covering And Uncovering Work 66 General Requirements 3.6.4.3.1 General. The Fire Marshal may make inspections at any time. It shall be the responsibility of the CM/GC to request an inspection at eighty (80) percent completion and at one hundred (100) percent completion and to give notice when all items on the one hundred (100) percent inspection report have been completed. Requests shall be in writing with a copy to the Owner and Design Professional. 3.6.4.3.2 Inspections Defined. The basic definitions for eighty (80) percent and one hundred (100) percent inspections are as follows: (a) Eighty Percent Inspection: The structural components are in place and open for review of the fire safety components. NOTE: Structural components include the following: fire walls, vertical shafts, stairways, smoke stops, hazardous area separation, roof and ceiling assemblies, corridor and door width, and HVAC system. (b) 100% Inspection: The CM/GC has completed all of the items on the eighty (80) percent inspection report and has the Certificate of Occupancy in hand. 3.6.4.4 False Start. In the event the CM/GC shall have issued Notice of Readiness prematurely, his action shall be deemed to be a "false start.” The CM/GC shall be liable for the damage resulting from the aforesaid false start, including, but not limited to, the salary, professional fees, and travel and living expenses of the person or parties inconvenienced by the aforesaid false start. 3.6.4.5 Certificate of Occupancy. The CM/GC’s obligation under the Contract is to install the Work in accordance with the Contract Documents, obtain the Certificate of Occupancy from the City of Milton and forward it to the Design Professional as a part of the final close out procedures. The Design Professional’s obligation is to design the Work to comply with the applicable codes and to qualify for a Certificate of Occupancy. 3.6.5 Covering and Uncovering Work. 3.6.5.1 Re-examination or Re-testing of Work Covered Pursuant to Consent of Design Professional. Re- examination or re-testing of questioned Work previously covered pursuant to consent of the Design Professional may be ordered by the Design Professional; provided that Design Professional must have authority from Owner to uncover such Work. If so ordered, the Work must be uncovered by the CM/GC. The Owner shall pay the cost of re-examination and replacement or of re-testing if such Work is found in accordance with the Contract Documents; provided that such cost must be agreed to in writing by Owner prior to being incurred. The CM/GC shall pay such cost if such Work is found not in accordance with the Contract Documents unless the CM/GC can show that a Separate Contractor caused the defect in the Work. In that event, the Owner shall pay such cost, provided that such cost must be agreed to in writing by Owner prior to being incurred, or cause such cost to be paid by the Separate Contractor. Re-examination or re-testing under the terms of this Paragraph applies only to W ork that has been covered with consent of the Design Professional. Work covered without consent of the Design Professional must be uncovered for examination as provided below. 3.6.5.2 Re-examination or Re-testing of Work Covered Without Consent of Design Professional. If any W ork should be covered without approval or consent of the Design Professional or contrary to any provision of the Contract Documents, such Work must be uncovered for examination by the Design Professional at the CM/GC’s expense. The CM/GC shall be liable for the costs resulting from the aforesaid uncovering, including, but not limited to, the salary, professional fees, and travel and living expenses of the person or parties inconvenienced thereby. 3.6.6 Inspection Does Not Relieve CM/GC. Under the Contract Documents, the CM/GC acknowledges that it has the responsibility for furnishing all services, labor, supplies, and materials for the entire Work in accordance with the Contract Documents. No provisions of this article nor any inspection of the Work by the Owner, representatives of the Owner, engineers employed by the Design Professional, representatives of the Design Professional, or the Design Professional shall in any way diminish, relieve, or alter said responsibility and undertaking of the CM/GC. Neither shall the omission of any of the foregoing to discover or to bring to the attention of the CM/GC the existence of any Work or materials injured or done not in accordance with said Contract Documents in any way diminish, relieve, or alter such obligation of the CM/GC; nor shall the aforesaid omission diminish or alter the rights or remedies of the Owner as set forth in the Contract Documents. The Contract Compliance Specialist has no power to make decisions, to accept or reject Work, or to consent to the covering of Work. The Contract Compliance Specialist owes no duty to the CM/GC. 3.6.7 Owner may Require Uncovering of Work. The Owner may require any Work to be uncovered, whether or not prior information was provided as to the schedule for covering. Should Work so uncovered prove to be in noncompliance with the Contract Documents or the Construction Documents, the cost of uncovering, correction of the Work, recovering, and Section 3 – Construction Phase Part 6 – Correcting the Work; Inspections, Covering And Uncovering Work 67 General Requirements any schedule recovery costs shall be borne by the CM/GC and may be paid from the Construction Contingency. If the CM/GC complies with the notice requirements above, and the Owner fails to make its desired inspections, and the Owner then requires the CM/GC to uncover the Work, the Owner shall bear all additional costs of uncovering and recovering the Work unless the Work is found to be non-compliant with the Construction Documents, in which case the CM/GC shall bear all such uncovering and recovering costs, which may be paid from the Construction Contingency. Should the Work be compliant, however, the Owner will pay for the uncovering and repair of the affected Work, in addition to any delay that affects the critical path of the Project. 3.6.8 Intentionally Omitted. 3.6.9 Effect of Notice of Non-Compliant Work. Notwithstanding anything contained in the Contract Documents to the contrary, in order to minimize delays in the completion of the Project, the CM/GC shall continue working while responding to a Notice of Non-Compliant Work and shall continue working while protesting any decision by the Design Professional or the Owner. 3.6.10 Deductions for Uncorrected Work. If the Design Professional and Owner deem it inexpedient to correct Work injured or done not in accordance with the Contract, an equitable deduction from the Contract Sum shall be made therefore. There is no duty on the part of the Owner, however, to accept any Work injured or done not in accordance with the methods and materials designated in the Contract Documents; nor does the CM/GC have the right to demand that there shall be acceptance of Work injured or done not in accordance with the methods and materials designated in the Contract Documents. [Remainder of Page Intentionally Left Blank] Section 3 – Construction Phase Part 7 – Trade Contractors; Self-performance 68 General Requirements PART 7 – TRADE CONTRACTORS; SELF-PERFORMANCE 3.7.1 Parties. Trade Contracts shall be between the CM/GC and the Trade Contractor or Supplier selected by CM/GC, as CM/GC deems appropriate, subject to the requirements that such Trade Contract be awarded in accordance with the procedures set forth in this Part. 3.7.2 Selection. 3.7.2.1 Selection Process. All Trade Contracts between CM/GC and Trade Contractors or Suppliers shall be entered into only after the CM/GC's completion of the selection process required by this Section 3, Part 7. For each selection, CM/GC, in consultation with the Design Professional and the Owner, shall develop appropriate selection criteria for the selection of the Trade Contractor or Supplier. The cost of the Work shall be a factor for consideration in every selection, but may not necessarily be the determining factor. 3.7.2.2 Information for Proposed Firms. CM/GC shall develop information for proposed firms for all of the Work. Such information shall describe the Work to be procured by the CM/GC through Trade Contractors or Suppliers, using CM/GC's own forms and procedures. Firms shall be required to submit a proposal encompassing the full contract price for the Work to be procured, except as provided in Article 3.7.10 below. 3.7.2.3 Alternative Prices. With the approval of the Owner, the CM/GC shall be entitled to take alternative prices as it deems necessary to advance and complete the Work by the stated Date of Final Completion. The Owner shall not unreasonably withhold such approval. 3.7.2.4 Timing of Proposals. CM/GC may, at its discretion, procure proposals for Work described in Construction Documents, or proposed for addition to this Contract by Change Order prior to acceptance of such Change Order by CM/GC or by Owner, but CM/GC shall not be authorized to reject a Construction Document Change Order proposed after the issuance of a GMP Change Order. 3.7.3 Proposers Lists. Prior to each solicitation of proposals, the CM/GC shall prepare and submit to the Owner for review a list of recommended proposers. CM/GC may require prospective proposer to undergo a pre-qualification process to permit CM/GC affirmatively to determine that a proposer who desires to submit a proposal is a Responsible Proposer as defined in Article 3.7.5. 3.7.4 CM/GC Proposal Review. Upon receipt of proposals and prior to CM/GC’s acceptance of any proposal, CM/GC shall prepare and deliver to the Owner for its review a complete and thorough analysis of the proposals received. Such proposal analysis shall clearly indicate the apparent best proposal from the proposer or proposers determined by CM/GC to be responsible and responsive and shall be accompanied by a copy of each proposal received. Nothing herein requires CM/GC to select the lowest price proposal. The risk and cost of CM/GC's selection of a successful proposer lies exclusively with CM/GC. 3.7.5 Responsible Proposers. CM/GC shall affirmatively determine whether each proposer is or is not responsible and whether each proposal is or is not responsive. To be deemed a responsible proposer, the proposed Trade Contractors or Suppliers shall match the following criteria: 3.7.5.1 Qualified. Be reputable, skilled, reliable, competent, qualified in the trade or field in which they are to perform on the Project, and be thoroughly familiar with applicable codes. 3.7.5.2 Bonding. Have the ability to obtain bonding from a bonding company acceptable to CM/GC. 3.7.5.3 Insurance. Shall have or shall have the ability to obtain insurance required by the Contract Documents. 3.7.6 Owner Rights. The Owner reserves the right in its sole and absolute discretion to require CM/GC to reject any Supplier or Trade Contractor and any proposal. If after the acceptance of the GMP Change Order by the Owner, the Owner exercises its right to require CM/GC to reject a Trade Contractor, a Supplier, or the lowest price proposal submitted by a responsible proposer, the acceptance of which CM/GC recommends, CM/GC shall recommend an acceptable substitute Trade Contractor, Supplier, or proposer, and if the substitute Trade Contractor, Supplier or proposer has submitted a higher proposal or price, the CM/GC shall notify Owner of the difference in the price between the rejected and substitute proposal, and, if approved in writing by the Owner, the GMP Change Order and its Estimated Cost Component shall be adjusted to reflect the difference between the amount of the rejected proposal or price and the higher accepted proposal or price. 3.7.7 CM/GC Award. Unless the Owner exercises its rights under Article 3.7.6, CM/GC shall award the Work to a responsible Trade Contractor or Supplier of CM/GC's choosing and proceed with the preparation of a purchase order or Section 3 – Construction Phase Part 7 – Trade Contractors; Self-performance 69 General Requirements Trade Contract incorporating all necessary terms and conditions of the Contract Documents. Upon execution by CM/GC, and if requested by the Owner, CM/GC shall send a copy of the executed purchase order or Trade Contract to the Owner. 3.7.8 CM/GC Self-Performance. In all cases where the CM/GC requests to perform any work with its own forces, such work shall require prior written approval by the Owner. 3.7.8.1 Conditions. After the acceptance of the GMP Change Order by the Owner, and in the event the lowest responsible and responsive proposal received by CM/GC exceeds CM/GC's adjusted Construction Budget line item for such Work, or in the event that no proposal is received, and any permitted redesign does not eliminate the budget shortfall or result in the submission of an acceptable proposal, the CM/GC has the following options: (i) In the case where the lowest responsible and responsive proposal exceeds the line item budget, and with the prior approval of the Owner, the CM/GC may perform such W ork with its own forces for the lump sum amount stated in its line item budget for such Work in its current Construction Budget; or (ii) In the case where no responsible and responsive proposal is received, the CM/GC shall perform such Work with its own forces within the Guaranteed Maximum Price stated in the GMP Change Order for the lump sum amount stated in its line item budget for such Work in its current Construction Budget. CM/GC's line item budget for Work stated in its current Construction Budget shall be deemed to be a proposal submitted by the CM/GC for such Work for which, in accordance with this Paragraph 3.7.8.1 and subject to approval by Owner, the CM/GC will undertake to perform such Work on a lump sum basis. CM/GC shall not be entitled to any additional CM/GC's Fee calculated on such lump sum. No action permitted under this Paragraph shall increase the Guaranteed Maximum Price. 3.7.8.2 Default of Trade Contractor. In addition, CM/GC may with its own forces perform Work encompassed within any Trade Contract between CM/GC and any Trade Contractor upon the termination of such Trade Contract by CM/GC by reason of the default or abandonment of the Work by the Trade Contractor, but , except as provided in Article 1.5.1the CM/GC shall perform such Work, or the balance thereof remaining at the time of termination, for an amount not exceeding the contract sum specified in the Trade Contract or the unexpended balance thereof remaining at the time of termination , except as provided in Article 1.5.1 provided that CM/GC's Fee shall not be reduced or increased on account of the Work performed under this Paragraph 3.7.8.2. 3.7.8.3 Other Compelling Circumstances with Specific Approval of Owner. In certain compelling circumstances, upon the request of the CM/GC and the recommendation of the Design Professional, Owner may permit, in its sole and unfettered discretion where such approval is in the best interest of the Owner, CM/GC to perform specified Work with its own forces. CM/GC’s line item budget for such Work stated in its current Construction Budget, or less, shall be deemed to be a proposal submitted by the CM/GC for such Work for which, in accordance with this Paragraph and subject to approval by Owner, the CM/GC will undertake to perform on a lump sum basis. CM/GC shall not be entitled to any additional CM/GC Fee calculated on such lump sum. No action permitted under this Paragraph shall increase the Guaranteed Maximum Price. 3.7.9 Duty to Continue Work. Notwithstanding any dispute between the Owner and CM/GC or between CM/GC and any Trade Contractors or between such Trade Contractors, it shall be the responsibility of CM/GC to continue to prosecute all of the Work and perform all of its services diligently in a good and workmanlike manner in conformity with this Contract, and the CM/GC and/or Trade Contractors shall have no right to cease performance hereunder or to permit the prosecution of the Work to be delayed so long as Owner does not default hereunder. So long as the CM/GC continues performance under this Contract, the Owner shall continue to pay CM/GC in accordance with this Contract. 3.7.10 Alternative Price Terms. Notwithstanding the requirements of Paragraphs 3.7.2 and 3.7.13, CM/GC shall be permitted, with Owner's advance approval and in Owner's sole discretion, to seek Trade Contractors or Suppliers who meet the requirements of this Section, through a proposal process under which the proposed Trade Contractor or Supplier offers to provide Construction Management services for designated subcomponents of the Project, and, with the Owner's approval, CM/GC may enter such contracts for the furnishing of such systems on a guaranteed maximum price basis. 3.7.11 CM/GC Supplied Equipment or Supplies. With the prior approval of the Owner and in Owner’s sole discretion, CM/GC may supply for use by its Trade Contractors or Suppliers, or for use by CM/GC for the performance of Work performed by CM/GC with its own forces, equipment and supplies necessary to the performance of the Work in addition to those items that the CM/GC is authorized to supply. However, the Actual Cost of such equipment or supplies reimbursable by the Owner to CM/GC shall not in any event exceed the least of (i) the amount that would be paid by CM/GC for the procurement of such equipment or supplies under a competitive proposal procurement, or (ii) the amount that would be reimbursable to CM/GC as an Actual Cost for such equipment or supplies had such equipment or supplies been procured from others under the terms of the Contract Documents, or (iii) the applicable amounts stated in Subparagraph 4.4.4.1. If the Owner approves the provision by CM/GC of such items from CM/GC's inventory, then no CM/GC's Fee shall be payable by Owner on account of such self-provided items in excess of any fee included in the approved sales price or rental rate. CM/GC's Fee shall be reduced proportionately for such self-provided items. Section 3 – Construction Phase Part 7 – Trade Contractors; Self-performance 70 General Requirements 3.7.12 No Conflict of Interests. Without prior written approval from the Owner after full disclosure by CM/GC, the CM/GC shall not award any Trade Contract to any Affiliate of CM/GC. 3.7.13 Fair Opportunity for Trade Contractors – Trade Packages. All construction Work to be performed by Trade Contractors shall be performed pursuant to Trade Packages from qualified Trade Contractors. The CM/GC shall make reasonable efforts to ensure that Trade Contractors and Suppliers local to the Project Site are given the fair opportunity to propose for, be considered for, and participate in the award of Trade Packages required for completion of the Project. The CM/GC shall, on behalf of Owner, advertise and solicit proposals from Trade Contractors and from Suppliers of material or equipment fabricated to a special design for the Work. All proposals will be delivered to the CM/GC. CM/GC will, on behalf of the Owner, analyze all such proposals to determine whether the proposals are responsive and the proposers are responsible. The CM/GC will recommend to the Owner, based on price and other factors, the Trade Contractor or Supplier. If the recommended Trade Contractor or Supplier is not the low price proposer, CM/GC will provide additional information justifying its recommendation. The Trade Package will be awarded upon receipt of approval from the Owner. If the Owner does not agree with the CM/GC’s recommendation, the Owner will instruct the CM/GC to award the Trade Package to the lowest responsive and responsible price proposer, or to reissue the package for additional proposers. 3.7.14 Warranty of CM/GC. The CM/GC warrants that the Trade Contractors selected by him are reputable, skilled, reliable, competent, and qualified in the trade or field in which they are to perform on the Project, and thoroughly familiar with applicable codes. The CM/GC will have primary responsibility for all Trade Packages. Trade Contractors are required to execute CM/GC's standard subcontract, as amended to be consistent with this Contract. The Trade Contractors shall be acting as Trade Contractors to the CM/GC. The CM/GC shall execute and administer all such Trade Package contracts and shall assume full responsibility for each and every item of Work performed thereunder and for the timely completion of all such Work in accordance herewith, including responsibility for all guarantees and warranties to be provided by each Trade Contractor. 3.7.15 CM/GC Responsible for Acts and Omissions of Trade Contractors, Materialmen, Suppliers, and Employees. The CM/GC agrees that it is as fully responsible for the acts and omissions of his Trade Contractors, materialmen, Suppliers, and employees, and of persons either directly or indirectly employed by them, as he is responsible for the acts and omissions of persons directly employed by him. The failure of a Trade Contractor, materialman, Supplier, or employee to perform shall not be asserted by the CM/GC as an excuse for any omission from or noncompliance with requirements of the Contract; nor shall the CM/GC be entitled to an extension of time because of failure of a Trade Contractor, materialman, Supplier, or employee to perform, unless said failure was a direct result of some delay to the Trade Contractor, materialman, Supplier, or employee of the kind and character described in the Contract for which the CM/GC shall have requested and received an extension of time under the terms of the General Requirements. The subcontracting of Work does not relieve the CM/GC of the full responsibility for the execution of the Work and for compliance with all requirements of the Contract Documents. The CM/GC shall not assert negligence, inefficiency, insolvency, bankruptcy, or incompetence of any Trade Contractor, materialman, Supplier, or employee as excuse for the existence of any noncompliance with or failure to fulfill any obligation under the Contract either as to timely performance or as to compliance with methods and materials designated in the Contract Documents; nor shall the CM/GC assert nonperformance (unless an extension of time shall have been granted pursuant to the Contract requirements) of a Trade Contractor, materialman, Supplier, or employee as excuse for the existence of any noncompliance with or omission to fulfill any obligation under the Contract either as to timely performance or as to compliance with methods and materials designated in the Contract Documents. Any provision in any contract between the CM/GC and any Trade Contractor pursuant to which the CM/GC is obliged to present to the Owner any claim of any Trade Contractor shall be invalid. 3.7.16 Relationship of CM/GC and Trade Contractors. 3.7.16.1 Obligations of Each. The CM/GC agrees to bind every Subcontractor, Trade Contractor, Supplier (hereinafter collectively referred to as “Subordinate CM/GC”) to the terms of the Contract Documents insofar as they are applicable to its Work, including the following provisions of this Article: Section 3 – Construction Phase Part 7 – Trade Contractors; Self-performance 71 General Requirements 3.7.16.1.1 The CM/GC agrees: (a) To be bound to the Subordinate CM/GC by all the obligations that the Owner owes to the CM/GC under the Contract Documents. (b) To pay the Subordinate CM/GC, upon the payment of certificates issued under the schedule of values described in the General Conditions, the amount allowed to the CM/GC on account of the Subordinate CM/GC's Work, to the extent of the Subordinate CM/GC's interest therein, within seven (7) days of receipt of payment from the Owner; provided, however, that retainage shall be released to the Subordinate CM/GC as provided by law and in accordance with the Final Affidavit set forth in Section 7, Forms. (c) To pay the Subordinate CM/GC, upon the payment of certificates issued otherwise than the schedule of values, in such a manner that at all times the Subordinate CM/GC's total payments shall be as large in proportion to the value of the Work done by the Subordinate CM/GC as the total amount certified and paid to the CM/GC is to the value of the Work done by the Subordinate CM/GC. (d) To pay the Subordinate CM/GC a just share of any property insurance money received by the CM/GC and due to Subordinate CM/GC for Work performed by Subordinate CM/GC and paid for by insurance. (e) That no claim for services rendered or materials supplied or other matters by the CM/GC against the Subordinate CM/GC shall be valid unless written notice thereof is given by the CM/GC to the Subordinate CM/GC prior to or during the first ten (10) days of the calendar month following that in which the CM/GC determines that the claim is chargeable against that Subordinate CM/GC. (f) To give the Subordinate CM/GC, upon its request, an opportunity to be present with CM/GC and to submit evidence in any dispute involving rights of the Subordinate CM/GC. 3.7.16.1.2 The CM/GC agrees to require its Subcontractors to do the following: (a) To be bound to the CM/GC by the terms of the Contract Documents and to assume toward the CM/GC all the obligations and responsibilities that the CM/GC by the aforesaid documents assumes toward the Owner. (b) To submit to the CM/GC applications for payment in such reasonable time as to enable the CM/GC to apply for payment under these General Conditions. (c) To make all claims for extras, for extensions of time or for damages to the CM/GC in the manner provided in the General Conditions for like claims by the CM/GC upon the Owner, except that the time for making such claims to the CM/GC is within ten (10) days after the initial event leading to the claim. (d) To pay their sub-subcontractors (hereinafter “Subordinate Contractors”), upon the payment of certificates issued under the schedule of values described in the General Conditions, the amount allowed on account of such Subordinate Contractor’s Work, to the extent of such Subordinate Contractor’s interest therein, within seven (7) days of its receipt of payment; provided, however, that retainage shall be released as provided by law and in accordance with the Final Affidavit set forth in Section 7, Forms. (e) To pay their Subordinate Contractors, upon Subcontractor’s receipt of payment, such that at all times their Subordinate Contractors’ aggregate payments shall be in proportion to the Work performed by each of the Subordinate Contractors. 3.7.16.2 Owner Not Obligated to Any Subordinate CM/GC, Subordinate Contractor, Trade Contractor, or Supplier. There is no obligation on the part of the Owner to pay to or to see to the payment of any sums to any Subordinate CM/GC, Subordinate Contractor, Trade Contractor, Supplier, laborer, employee, or person supplying labor, materials, machinery or equipment to the Project. Section 3 – Construction Phase Part 7 – Trade Contractors; Self-performance 72 General Requirements 3.7.16.3 Term “Substantial Completion” Deleted. The term “substantial completion,” if found, is hereby deleted and is of no force in all Subcontracts, Trade Contracts, and in the Trade Sections of the Contract Documents. In certain contexts, the term may be superseded by the term “Material Completion” as defined in this Contract. 3.7.16.4 Failure to Incorporate Terms in Subcontracts. The CM/GC agrees that failure on its part to incorporate this Article 3.7.16 in all Subcontracts, Trade Contracts, or Supplier contracts, is a material breach of an essential covenant of this Contract, and further agrees that, in the event of such breach, the CM/GC shall, within five (5) days after demand of the Owner, furnish proof in writing that the deficiency has been remedied to the end that (i) the CM/GC may not maintain that it is beyond his competence to require performance of terms of the Contract by a Subcontractor and (ii) no Subcontractor may maintain that he has not assumed toward the CM/GC all the obligations and responsibilities that the CM/GC has assumed toward the Owner. Failure on the part of the CM/GC to effect remedy as described above within five (5) days after receipt of written demand of the Owner shall be grounds for issuance of a declaration of default by the Owner. 3.7.17 Assignment of Trade Contracts, Subcontracts. 3.7.17.1 No Contractual Relationship. Nothing contained in this Contract creates a contractual relationship between the Owner and any person or entity other than the CM/GC (and the Design Professional to the extent the obligations of such entities are specified herein). However, the Owner and CM/GC agree that the Owner is an intended and express third-party beneficiary of all contracts for construction services and all subcontracts, purchase orders, and other agreements between the CM/GC and third parties in connection with the Project or the Work. 3.7.17.2 Conditional Assignment. The CM/GC hereby conditionally assigns to the Owner all of its interest in any subcontracts (including, without limitation, purchase orders) entered into by the CM/GC for performance of any part of the Work. Such conditional assignment shall become effective only upon the termination of this Contract, whereupon the Owner shall, at its discretion, only upon the Owner’s written approval of such agreements, and only to the extent permitted by law, succeed to the rights and obligations of the CM/GC under such subcontract. The CM/GC shall incorporate, into its respective subcontracts, supply agreements, purchase orders, and other agreements in connection with the Project or the Work, language that expressly names the Owner as an intended third-party beneficiary of such agreements. 3.7.17.3 Assignment Provisions. CM/GC shall also ensure that its subcontracts, supply agreements, purchase orders, and other agreements contain a provision that assigns to the Owner the CM/GC's interest in the respective agreement to the Owner immediately upon Trade Contractor's or Supplier's receipt of Owner's notice to such effect. Furthermore, CM/GC shall ensure that its subcontracts, supply agreements, purchase orders, and other agreements contain a provision that allows the Owner to terminate that agreement solely for the Owner's convenience in accordance with the provisions set forth in this Contract. Owner further agrees to pay reasonable documented costs of cancellation charges, or re-stocking costs for the Owner's termination for convenience of subcontracts, supply agreements, purchase orders, and other agreements; provided that such costs must be agreed to in writing by the Owner prior to being incurred. 3.7.17.4 Assignment of Warranties. Without limiting CM/GC's post-construction obligations pursuant to this Contract, CM/GC shall assign to Owner all post-construction warranties resulting from CM/GC's agreements with third parties, subject to CM/GC's reservation of rights under such warranties to the extent necessary to enable CM/GC to fulfill its obligations to Owner hereunder. Moreover, CM/GC shall protect Owner's interest in all such warranties and shall take no action nor commit an omission that renders such warranties void or voidable. [Remainder of Page Intentionally Left Blank] Section 4 – Compensation Part 1 – General 73 General Requirements SECTION 4 – COMPENSATION PART 1 – GENERAL. 4.1.1 Authorized Compensation and Limitations. 4.1.1.1 CM/GC's Fee. CM/GC's Fee shall be the amount specified in Paragraph 5 of the Contract. 4.1.1.1.1 Basis of Fee. The CM/GC’s Fee is the amount, established by and agreed to by both parties, that is the full amount of compensation due to the CM/GC as gross profit, and for any and all expenses of the Project not included and identified as a Cost of the Work or the CM/GC’s Overhead Cost, provided that the CM/GC performs all the requirements of the Contract Documents within the time limits established. The CM/GC’s Fee consists of the following: a. Intentionally Omitted. b. Construction Fee. For the construction services, as described in Section 3 of the General Requirements, provided by CM/GC, Owner shall pay to CM/GC a Construction Fee representing the gross profit relative to the construction services, in accordance with Section 4, Part 3 below. 4.1.1.1.2 Adjustments in the CM/GC’s Fees. The CM/GC’s Fee can only be changed by a written Change Order executed by both parties. CM/GC’s Fee can only be adjusted for material changes in the scope of the Work, which includes without limitation the management of the replacement of an insured or uninsured loss. 4.1.1.2 CM/GC’s Construction Overhead Costs and Expenses. The lump sum amount for Preconstruction and Construction Overhead Costs and Expenses shall be the amount specified in Paragraph 6 of the Contract, established by agreement with the Owner based upon the CM/GC Fee Proposal, set forth in Exhibit E, and by using the Project Cost Matrix included therein. These costs and limitations consist of the following: 4.1.1.2.1 [RESERVED] 4.1.1.2.2 Construction Overhead Costs and Expenses. The Construction Overhead Costs and Expenses are inclusive of toll telephone calls, facsimile charges, postage and use of courier services, photocopying and reproduction expenses, travel costs, sustenance, reproduction, salaries, wages, and field office expenses, as agreed upon by the parties. The maximum allowable amount for which the Owner shall be liable to the CM/GC for Construction Overhead Costs and Expenses is shown in Exhibit E. 4.1.1.3 Cost of the Work. The Actual Cost for the Cost of the Work shall be paid as set forth in Section 4, Part 4. 4.1.1.4 GMP Cost Limitation. The Guaranteed Maximum Price shall not be in excess of the GMP Cost Limitation. 4.1.1.4.1 GMP Cost Limitation. The maximum amount allocated for the construction services and construction of the Project. GMP Cost Limitation does not include design costs, Owner contingency, or Site acquisition costs. See Subparagraph 4.1.1.4.2 for details and effect of the GMP Cost Limitation. 4.1.1.4.2 Details and Effect of the GMP Cost Limitation. (a) The CM/GC recognizes that the Design Professional is required to design the Project such that the initial Guaranteed Maximum Price will not exceed the GMP Cost Limitation. (b) In contracting with a public or governmental body to render services, the CM/GC is charged with knowledge of any limitation imposed on such body as to amount of money it may spend for a given project; and (c) The GMP Cost Limitation limits the Owner, the Design Professional and the CM/GC prior to, but not after, the establishment of the GMP. 4.1.1.5 Guaranteed Maximum Price (“GMP”). The Owner will pay the CM/GC an amount established as the CM/GC’s Fee, plus Construction Overhead Costs and the Actual Cost of the Work as described herein, but those amounts in the aggregate shall not exceed, in any event or for any reason, the Guaranteed Maximum Price. Section 4 – Compensation Part 1 – General 74 General Requirements 4.1.1.6 Effect of GMP Change Order. Preconstruction Phase Services will be provided under the Preconstruction Services Agreement and paid for in a lump sum amount as provided for therein. Construction Phase Services are included in the GMP. Upon acceptance of the GMP Change Order by Owner, the GMP Change Order shall exclusively govern the compensation to CM/GC for all fees and services included therein. 4.1.1.7 Payment Schedule. The CM/GC’s Fee shall be paid monthly in proportion to the services actually performed. CM/GC shall submit not later than the tenth (10th) day of any month an invoice for the proportionate part of the CM/GC’s Fee that represents the services actually performed for the period following the period covered by any prior invoice to the end of the preceding month. If and to the extent approved by Owner, the amount of such invoice shall be paid by Owner promptly and the CM/GC Overhead Costs will be paid proportionally to time expended on the project versus the overall project schedule. Such proporationate amount shall establish a rate to be applied in the same manner to time extensions for compensable Change Orders 4.1.1.8 Payments Withheld. The Owner may withhold from the Cost of the Work or, on account of subsequently discovered evidence, nullify the whole or a part of any pay request or certificate to such extent as may be necessary to protect the Owner from loss on account of: (a) Defective Work not remedied (b) Claims filed or reasonable evidence indicating probable filing of claims. (c) Failure of the Contractor to make payments properly to Subcontractor or for materials or labor. (d) A reasonable doubt that the Contract can be completed for the balance then unpaid. (e) Damage to another contractor or to some third party. (f) Failure to maintain a rate of progress in accordance with the Construction Progress Schedule. (g) Failure to supply enough skilled workmen or proper materials. When the above grounds are removed, payment shall be made for amounts withheld because of them. At the option of the Owner, adherence to the Construction Progress Schedule shall be a condition precedent to the right of the CM/GC to demand payment. No omission on the part of the Owner to exercise the aforesaid option shall be construed to be a waiver of breach of the Construction Progress Schedule or acquiescence therein, and the Owner may exercise its option from time to time and as often as may be expedient. 4.1.1.9 Change in Tax Rates. If the rate of sales, use, payroll, or other similar direct taxes on materials, equipment, or labor required for the performance of the Work shall increase above the rate in force on the date of the GMP Change Order, then the Cost of Work Component (but not the Fee or Construction Overhead Component) of the GMP Change Order shall be increased by the amount of additional taxes incurred by CM/GC as a result of such change in rate, provided that such increase shall not exceed seven (7) percent of the GMP. A written Claim shall be made promptly after CM/GC receives notice of such tax increase. If the tax rates decrease, the estimated amount of saved taxes due to the decrease as yet unexpended shall be split equally and moved into the Construction Contingency and Design Contingency, respectively. 4.1.2 Audit. At the request of the Owner, the CM/GC shall allow the Owner the opportunity to select an auditor to examine and inspect the Project and the CM/GC's books, records, and any and all accounts and similar data related to the Project. The Owner shall bear the cost of such audit. The auditor may sign a confidentiality agreement before conducting any such audit. Notwithstanding such agreement, CM/GC understands and agrees that all Project records are subject to the Georgia Open Records Act. Approval of an Application for Payment by the Owner, including Final Payment, shall not foreclose the right of the Owner to examine the books and records and their backup documents in accordance with the Contract Documents to determine the correctness and accuracy of any item. 4.1.3 Limitation of Owner Liability. The Owner shall not be liable to pay CM/GC any amount for Fees, Overhead, or Actual Cost of Work performed after the date of the GMP Change Order that, after the payment of such amount or any portion thereof, would cause the aggregate amount paid to CM/GC hereunder to exceed the Guaranteed Maximum Price. 4.1.4 Provision for Further Development of the Contract Documents. Because the Contract Documents may not be finished at the time the Guaranteed Maximum Price proposal is prepared, the CM/GC shall provide within the Guaranteed Maximum Price an amount for further development of the Contract Documents. 4.1.5 Inclusion of Contingency Amounts in GMP. 4.1.5.1 Construction Contingency - A Part of the Cost of the Work. The GMP shall include in the Construction Contingency sums established by the CM/GC for the CM/GC's use to cover costs arising under Articles 4.4.5 et seq. and other costs which are properly reimbursable as Cost of the Work but not the basis for a Change Order. Section 4 – Compensation Part 1 – General 75 General Requirements 4.1.5.2 Construction Contingency - CM/GC to Monitor. The Owner and the CM/GC agree that the amounts so established will be monitored by both parties and used by the CM/GC, with approvals by the Owner as specified, to provide for the cost of labor, materials, services, or equipment that are properly reimbursable as a Cost of the Work (or otherwise permissible for use hereunder) but that will not be the basis of a Change Order to adjust the GMP. The balances of all contingency funds will be returned to the Owner at the completion of the Project. The CM/GC will provide a full accounting of the status of the contingency funds to the Owner on a quarterly basis until the Project is completed, notwithstanding any change to a Lump Sum Price as permitted by Article 3.3.6. 4.1.5.3 Design Contingency. Owner may establish a Design Contingency for its use. Such uses may include costs associated with errors and omissions in the design documents, design changes, scope changes, or other items that would result in a Change Order for CM/GC. The Design Contingency would not be Cost of Work or included in the GMP unless and until such funds are allocated to the Project through a Change Order. 4.1.6 CM/GC’s Compensation Prior to Acceptance of GMP. Prior to the Owner’s acceptance of CM/GC's Guaranteed Maximum Price proposal and issuance of a Proceed Order, CM/GC's compensation shall be limited to an amount equal to reimbursement of all reasonable out-of-pocket costs and expenses incurred in the performance of CM/GC’s obligations hereunder and the Cost of the Work set forth in any approved Component Change Order. Prior to the Owner's acceptance of the CM/GC's Guaranteed Maximum Price proposal and issuance of a Proceed Order, the CM/GC shall not incur any cost to be reimbursed as part of the Cost of the Work, except as the Owner may specifically authorize in writing or in an approved Component Change Order. [Remainder of Page Intentionally Left Blank] Section 4 – Compensation Part 2 – Payment for Preconstruction Phase Services 76 General Requirements PART 2 – INTENTIONALLY OMITTED. [Remainder of Page Intentionally Left Blank] Section 4 – Compensation Part 3 – Payment For Construction Phase Services 77 General Requirements PART 3 – PAYMENT FOR CONSTRUCTION PHASE SERVICES 4.3.1 Basis of Compensation for Change Orders and Extensions. 4.3.1.1 Intentionally Omitted. 4.3.1.2 Schedule of Values as a Comparison. Before the first Application for Payment, the CM/GC shall submit to Owner through the Design Professional a Schedule of Values allocated to various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as the Owner may require. This Schedule of Values, unless objected to by the Owner, will be used as a basis for reviewing the CM/GC's Applications for Payment. Each Application for Payment will be reviewed for Actual Costs and also for consistency based on percentage completion of the Schedule of Values. The Schedule of Values will also be utilized in the event the Owner elects conversion to a Lump Sum Price pursuant to Article 3.3.6. 4.3.2 Submission of Applications for Payment. By the twenty-fifth day (25th) of each month, the CM/GC shall submit to the Design Professional itemized Applications for Payment in the form attached hereto as Exhibit K. The CM/GC shall submit no more than one (1) Application for Payment during each month. Any material deviations in tests or inspections performed, or times or locations required to complete such tests or inspections, and other deviations from the Work described in this Contract shall be clearly communicated to the Design Professional and Owner before charges are incurred and shall be handled through Change Orders as described herein. 4.3.3 Timing of Payments. No later than thirty (30) Business Days following Owner's timely approval of an Application for Payment (in the form required by this Contract), and to the extent it has approved such Application, it shall pay to the CM/GC 100% of all Actual Costs and Contingency Costs properly incurred by the CM/GC during the preceding period and properly reimbursable under this Contract (less retainage, if applicable, as provided herein). No payments will be made for unauthorized work. Such payments shall be subject to adjustment on account of any prior overpayment attributable to error of CM/GC, Owner, whether discovered by audit or otherwise. If amounts properly invoiced remain unpaid for more than thirty (30) days, the CM/GC shall provide notice and interest shall accrue pursuant to Article 4.3.17. Within thirty (30) days after receiving an approved Application for Payment, the Owner will notify the CM/GC of any disputed amounts. The Owner and the CM/GC agree to use their best efforts to resolve all disputes concerning the disputed amounts within thirty (30) days of the Owner's notice to the CM/GC of the dispute. 4.3.4 Payments Withheld. The Owner may withhold or, on account of subsequently discovered evidence, nullify the whole or a part of any Application for Payment or certificate to such extent as may be necessary to protect the Owner from loss on account of: (a) Defective Work not remedied (b) Claims filed or reasonable evidence indicating probable filing of claims. (c) Failure of the Contractor to make payments properly to Subcontractor or for materials or labor. (d) A reasonable doubt that the contract can be completed for the balance then unpaid. (e) Damage to another contractor or to some third party. (f) Failure to maintain a rate of progress in accordance with the Construction Progress Schedule. (g) Failure to supply enough skilled workmen or proper materials. When the above grounds are removed, payment shall be made for amounts withheld because of them. At the option of the Owner, adherence to the Construction Progress Schedule shall be a condition precedent to the right of the CM/GC to demand payment of an Application for Payment or certificate. No omission on the part of the Owner to exercise the aforesaid option shall be construed to be a waiver of breach of the Construction Progress Schedule or acquiescence therein, and the Owner may exercise its option from time to time and as often as may be expedient. 4.3.5 Retainage. 4.3.5.1 Withholding of Retainage; Conversion to Lump Sum. Retainage shall be withheld from each Application for Payment to the CM/GC in the amount of ten (10) percent of the sum of the total cost for Work, Change Order Work, materials stored on the Site, and CM/GC Fee earned, as such items are included for payment within the Application for Payment and as agreed upon by the Design Professional. After one-half of the Contract Sum, including Change Orders, becomes due and the Work meets all of the following conditions: (a) On or ahead of the Overall Project Schedule; and (b) There are no breaches of Notices of Non-Compliant Work (c) The Work has been completely procured by the CM/GC and remains within the construction budget limitations; and Section 4 – Compensation Part 3 – Payment For Construction Phase Services 78 General Requirements (d) There is no delinquency in the completion of Work and filing of the final breakdown and accounting pursuant to any Change Orders utilizing a Force Account; then, if the CM/GC requests and the Design Professional approves in writing, the sum being withheld as retainage will be converted to a lump sum and held by the Owner until Final Completion. 4.3.5.2 Reinstatement of Retainage. Following the conversion of the retainage to a lump sum, as described in Article 4.3.5.1 above, the Owner will withhold no further retainage from payments to the CM/GC unless one or more of the following events occur: (a) The percentage of Work complete falls behind the percentage required by the Overall Project Schedule by five (5) percent or more; or (b) The CM/GC breaches a Notice of Non-Compliant Work; or (c) The CM/GC becomes delinquent in regard to the filing of the final breakdown and accounting pursuant to any Change Orders utilizing a Force Account; in which event or events the Owner shall reinstate the ten (10) percent retainage on all Applications for Payment due to be paid while one or more of the events continues to exist. The CM/GC will be given written notice of the reinstatement of the retainage. 4.3.5.3 Reconversion to Lump Sum. If the CM/GC subsequently: (a) Recovers all lost time and puts the Work back on schedule; and (b) Remedies all breaches of Notices of Non-Compliant Work; and (c) Supplies a proper breakdown and accounting pursuant to any Change Orders utilizing a Force Account; then the sums withheld while either or all of the events existed will be again converted to a lump sum. 4.3.6 Subcontractor’s Retainage Release. Upon request by the CM/GC, Owner may, but is not required, to permit an amount equal to the subcontract retainage of a Subcontractor to be separately released from the retainage held by the Owner as he completes his Work. An application in accordance with the Owner’s Subcontractor Retainage Release Certificate (See Section 7, Forms) for release of a Subcontractor's retainage shall contain a release of all claims by the Subcontractor and shall bear the original certificates of the Subcontractor, the CM/GC, and the Design Professional, that the Subcontractor's Work has been fully performed, and that the sum for which payment is requested is due by the CM/GC to the Subcontractor. Before receiving any portion of the retainage, the CM/GC will be required to furnish a Final Affidavit executed by the Subcontractor in the exact form as shown in Section 7. Checks releasing a Subcontractor's retainage shall be made payable to the CM/GC, the CM/GC’s surety, and the Subcontractor and shall be mailed to the CM/GC’s surety. This article does not create any contractual relationship between the Owner and the Subcontractor or any duty of the Owner to any Subcontractor. 4.3.7 Supplier’s Retainage Release. Upon request by the CM/GC, Owner may, but is not required, to permit an amount equal to the retainage of Supplier to be separately released from the retainage held by the Owner, if the Supplier has fully performed all delivery obligations under its Trade Contract or, in the alternative, to permit CM/GC to take advantage of discounts or for other reasons in the best interest of the Owner. The retainage release shall be processed in the same manner as for a Subcontractor as set forth in Article 4.3.6 above. 4.3.8 CM/GC’s Warranty on Applications for Payment. The CM/GC hereby warrants to the Owner that, subject to Owner making payments to the CM/GC in accordance with the Contract Documents: 4.3.8.1 Title to Work. Title to Work, materials and equipment covered by an approved Application for Payment will pass to the Owner either by incorporation in construction or upon receipt of payment by the CM/GC, whichever shall occur first; 4.3.8.2 No Liens. Work, materials and equipment covered by any previously approved Applications for Payment are free and clear of liens, claims, security interests or encumbrances, hereinafter referred to as "liens"; 4.3.8.3 No Encumbrance. No Work, materials or equipment covered by an approved Application for Payment will have been acquired by the CM/GC, or any other person performing Work at the Site or furnishing materials or equipment for the Project, subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the CM/GC or such other person. 4.3.9 Special Provisions for Payment of CM/GC Fee under a Component or GMP Change Order. 4.3.9.1 Payment of CM/GC Fee. Section 4 – Compensation Part 3 – Payment For Construction Phase Services 79 General Requirements 4.3.9.1.1 Prior to GMP. With respect to Component Change Orders prior to the GMP Change Order, the CM/GC's Fee shall be paid on a monthly basis proportionate to the ratio which the Actual Costs for the Work performed under any Component Change Order bears to the Trade Contract sum stated in the applicable Component Change Order less retainage. 4.3.9.1.2 After GMP. After a GMP Change Order, CM/GC's Fee shall be paid on a monthly basis and proportionate to the ratio the Actual Costs incurred for Work on the Project bear to the Estimated Cost Component of the GMP Change Order, less retainage. 4.3.9.2 Payment of CM/GC Fee Withheld. The Owner may withhold payment only on account of (1) a breach of this Contract by CM/GC, (2) CM/GC’s failure to perform the management and similar services hereunder, (3) CM/GC’s failure to provide information it is required to provide to the Owner hereunder, or (4) under other circumstances as may be permitted by the Contract or the CM/GC’s Proposal. 4.3.10 Applications for Payment. 4.3.10.1 Form of Application. By the twenty-fifth (25th) day of each month, the CM/GC shall submit to the Architect itemized Applications for Payment in the form attached hereto as Exhibit K. If requested by the Owner or Design Professional, the CM/GC shall attach to such Applications for Payment backup materials including, but not limited to, receipts or other vouchers, showing his payments for materials and labor, including payments previously made to Subcontractors. The CM/GC shall submit no mor than one (1) Application for Payment during each month. An Updated Progress Construction Progress Schedule must accompany each of the CM/GC’s Applications for Payment. Further, each invoice shall be accompanied by an Interim Waiver and Release upon Payment (or a Waiver and Release upon Final Payment in the case of the invoice for Final Payment) procured by the CM/GC from all Subcontractors in accordance with O.C.G.A. § 44-14-366. The Architect will review each Application for Payment and make recommendations to the Owner by the fifth (5th) of the month following the month in which the CM/GC submits its Application for Payment. 4.3.10.2 Initial Breakdown and Periodic Payments. Each Application for Payment shall be submitted at least thirty (30) days before each payment falls due, and the CM/GC shall, before the first application, submit to the Design Professional a Schedule of Values as required by Paragraph 4.3.1.2 above of the various parts of the Work, including quantities, aggregating the total sum of the Contract, divided in the same manner set forth in the Application for Payment Form set forth in Exhibit K and so arranged and so itemized as to meet the approval of the Design Professional and, further, if requested, supported by such evidence as to its correctness as the Design Professional may direct. 4.3.10.3 Materials Stored. If the Application for Payment includes materials delivered and suitably stored at the Site but not incorporated in the Work, they shall, if required by the Owner or the Design Professional, be conditional upon submission by the CM/GC of bills of sale or such other procedure as will establish the Owner's title to such material or otherwise adequately protect the Owner's interest. The CM/GC is responsible for the existence, protection, and, if necessary, replacement of materials until execution of the Final Certificate of the Design Professional. The Owner shall not pay for any materials stored off-site unless approved in the GMP Change Order. 4.3.10.4 Action by Owner. The Owner may refuse to pay any item or items contained in any such Application for Payment until and unless documentation and details evidencing the related costs are submitted to the reasonable satisfaction of the Owner. While awaiting such documentation, the Owner may delete any item or items at issue, and elect to pay the items which are approved, indicating the revised total amount paid upon the invoice. The deleted items may be paid by an interim Application for Payment, or separately identified and included on a subsequent regular Application for Payment. 4.3.10.5 Accounting Format. Applications for Payment shall be broken down by Construction Specification Institute (“CSI”) Category and, in certain situations, by CSI Description and capital asset category, as set forth in the form for Application for Payment. The purpose is to provide appropriate backup documents for the CM/GC’s Final Certification of Costs in conformance with GASB 34 accounting standards. See Exhibits K and L – Forms, “Application for Payment” and Final Certification of Costs. 4.3.11 Schedule of Values. Before the first Application for Payment is submitted, the CM/GC shall submit to the Architect a Schedule of Values allocated to various portions of the construction Work, prepared in such form and supported by such data to substantiate its accuracy as the Owner may require. This Schedule of Values, as approved by the Owner, will be used as a basis for reviewing the CM/GC’s Applications for Payment. Each Application for Payment will be submitted and reviewed based on percentage completion of the Schedule of Values. Section 4 – Compensation Part 3 – Payment For Construction Phase Services 80 General Requirements 4.3.12 Representations of CM/GC. The Application for Payment constitutes a representation by the CM/GC to the Owner that (i) the design and construction have progressed to the point indicated; (ii) the quality of the W ork covered by the application is in accordance with the Contract Documents; and (iii) the CM/GC is entitled to payment in the amount requested. 4.3.13 Design Professional’s Certificate Not Acceptance of Work. No certificate issued by the Design Professional, or partial or entire use or occupancy of the Work by the Owner shall be an acceptance of any Work or materials not in accordance with the Contract Documents. 4.3.14 Payment Not Acceptance of Work. No payment nor any partial or entire use or occupancy of the Project by the Owner shall constitute an acceptance of Work not in accordance with the Contract Documents. 4.3.15 Payment for Change Order Work. Payments will not be made for any changes in the Work until a Change Order has been executed. 4.3.16 Payment Due. Payment of an Application for Payment shall be due thirty (30) days after receipt by the Owner of the certification of the Application for Payment by the Design Professional, unless items are audited and deleted pursuant to Article 4.3.10, in which case payment shall be due thirty (30) days after the deletions are approved by the Owner. 4.3.17 Late Payments and Interest. Should the Owner fail to pay a proper invoice within thirty (30) calendar days of receipt, the Contractor shall notify the Owner in writing by certified or statutory mail. If the Owner fails to pay within ten (10) Business Days of receipt of the notice, and if the amount claimed owing is not in dispute, the Contractor shall receive, in addition the sum named in the proper invoice, interest thereon at the rate of one half (.5) percent per month on the unpaid balance as may be due. [Remainder of Page Intentionally Left Blank] Section 4 – Compensation Part 4 – Cost of the Work 81 General Requirements PART 4 – COST OF THE WORK. 4.4.1 Definition. The term "Cost of the Work" is defined in Paragraph 1.1.9.22, and includes costs necessarily incurred by CM/GC in the proper performance of the Work, but such costs shall not include CM/GC’s Fee or Construction Overhead Costs and Expenses. Such costs shall include or be limited by the items set forth in this Part and otherwise in this Contract. Nothwithstanding anything to the contrary herein, CM/GC’s ConstructionContingency shall be considered Cost of the Work. 4.4.2 Intentionally Omitted. 4.4.3 Construction Phase Services. “Actual Cost” as used in this Contract shall consist of all costs, except those costs excluded by Article 4.4.4, necessarily incurred by the CM/GC in the proper performance of the Work or services described in the Contract Documents (including this Contract) for which records required by the Contract Documents are established contemporaneously with the incurring of such cost and are maintained, and which are not otherwise reimbursed or recovered by CM/GC. Such Actual Costs shall be at rates not higher than the standard paid in the locality of the performance required by the Contract Documents, except upon the prior written consent of the Owner. The Owner will pay the CM/GC for the following Actual Costs incurred during the Construction Phase of the Project, consistent with the approved GMP: 4.4.3.1 Wages. 4.4.3.1.1 Actual Wages. Actual wages paid for labor under applicable collective bargaining agreements, or under a wage schedule, not to exceed the prevailing wage rate in the area, agreed upon by the Owner and CM/GC and including such Owner-approved welfare or other benefits, if any, as may be payable with respect thereto. 4.4.3.1.2 No Changes. No change in such wage schedules shall be made by CM/GC without prior approval by Owner in advance. Employees of CM/GC who are engaged at shops or on the road in expediting the production or transportation of materials or equipment in connection with the performance of the Work shall be considered stationed at the field office and their wages paid for that portion of their time spent on such performance. The Owner shall be furnished with a list of employees whom the CM/GC assigns to the performance of Work or services under this Contract with an indication of the wages of each employee. The aforesaid employees shall be paid on the basis of time cards to which the Owner shall have ready access. 4.4.3.2 Intentionally Omitted. 4.4.3.3 Employee Taxes. Cost of contributions, assessments or taxes for such items as unemployment compensation and social security, insofar as such cost is based on wages, salaries, or other remuneration paid to employees of the CM/GC and included in the Actual Cost under Paragraphs 4.4.3.1 and 4.4.3.2. 4.4.3.4 Cost of Materials, etc. The cost of all materials, supplies, equipment, temporary facilities and hand tools not owned by the workers that are used or consumed in the performance of the Work, less the salvage or residual value on such items used but not consumed on the Work that remain the property of the CM/GC. Cost of Materials shall include, without limitation, the costs of inspection and testing not furnished by the Owner, storage and handling; 4.4.3.5 Sales Taxes. Sales, use or similar taxes for which CM/GC is liable and imposed by any governmental authority due to or in connection with the performance of the Work or services required hereunder. 4.4.3.6 Trade Contractors. The cost of all Work performed by Trade Contractors or Suppliers for Work performed or materials procured pursuant to Trade Contracts entered into in accordance with this Contract and subject to the limitations stated in the Contract Documents. 4.4.3.7 Royalties. Royalties and license fees payable under any patents. 4.4.3.8 Rental Charges. When approved by Owner in advance, (a) rental charges of all necessary equipment used at the Site of the Project, exclusive of hand tools owned by workers or included in Paragraph 4.4.3.4 above, whether rented from the CM/GC or others, including loading and unloading, installation, repairs and replacements, dismantling, removal, costs of lubrication, transportation, insurance and delivery costs thereof, at rental charges consistent with those prevailing in the area, during their use on the Work and (b) wages of operating engineers for the operation of such equipment, subject in each case [item (a) and (b)] to the limitations stated in Contract Documents. Rental rates for rental of heavy equipment and hourly rates of operating engineers provided directly by the CM/GC or by any Trade Contractor or Supplier shall not exceed the rates approved by Owner in accordance with Article 3.2.13.5. Section 4 – Compensation Part 4 – Cost of the Work 82 General Requirements 4.4.3.9 Insurance Premiums. The costs of premiums for all bonds, the cost of insurance (including Workers’ compensation insurance) covering risks related solely to the Project, and the pro rata cost of insurance (including Workers’ compensation insurance) covering such Project risks and other risks, which bonds and insurance the CM/GC is required by the Contract Documents to purchase and maintain. 4.4.3.10 Permits, Fees, etc. Permits, fees, licenses, tests, royalties, sales, use, or any other such taxes, tariffs or duties related to the Work for which the CM/GC is responsible, but not including any fines or interest due to CM/GC’s failure to meet legal requirements associated with such items. Fees and assessments for the building permit and impact fees (as included in approved Guaranteed Maximum Price Proposal) and for other permits, licenses and inspections for which CM/GC is required by the Contract Documents to pay. 4.4.3.11 Field Office Costs. All costs associated with establishing, equipping, operating, maintaining and demobilizing the field office; 4.4.3.12 Utility Costs. The cost of utilities, such as water, power, fuel, sewer, etc., (unless provided by Owner) required for CM/GC’s operations at the Project Site and fuel consumed in the generation of electrical power or in the operation of equipment required in the CM/GC’s operation at the Project Site, except to the extent such costs are included in the rental rates for such equipment in accordance with this Contract. 4.4.3.13 Demolition Costs. Cost of demolition, if any, and removal of non-hazardous materials, debris and waste materials; 4.4.3.14 Testing. Fees of testing laboratories for tests required by the Contract Documents not paid for by the Owner. 4.4.3.15 Reproduction Costs. Costs of reproduction of plans, Specifications, and other documents required for the construction of the Project. 4.4.3.16 Telephones, etc. The cost of telephone service (including toll charges), office equipment, and office furnishings, and similar items incurred in the operation of the Project field office. 4.4.3.17 Safety Plan. Cost incurred in the implementation of Project Site safety and security plans. 4.4.3.18 Deposits. Deposits lost for causes other than the CM/GC's negligence or the negligence of a Subcontractor or other entity for which the CM/GC is responsible hereunder. 4.4.3.19 Intentionally Omitted. 4.4.3.20 Final Clean-up. Costs of final clean-up of the Project. 4.4.3.21 Emergency Costs. Any and all costs incurred due to an emergency affecting the safety of persons or property and related to the performance of the Work; provided such emergency is not caused by negligence on the part of the CM/GC or any entity for whose acts the CM/GC is responsible hereunder. 4.4.3.22 Intentionally Omitted. 4.4.3.23 Other. Other costs approved in advance by the Owner. 4.4.4 Limitations on the Cost of the Work. All costs not identified in Articles 4.4.2 and 4.4.3 shall be considered a part of the CM/GC’s Fee. Without limiting the effect of the foregoing, the following items are specifically excluded from the Cost of the Work: 4.4.4.1 Intentionally Omitted. 4.4.4.2 Salaries. Wages and salaries paid by CM/GC for officers, directors, and partners of CM/GC, whether or not stationed at the Site field office, or for officers, directors, partners or employees of CM/GC performing Basic Services in the main or branch offices in any capacity whatsoever except as provided in Paragraph 4.4.3.2. Salaries and other compensation of CM/GC's personnel stationed at CM/GC's principal office or offices other than the Site, unless agreed to by Owner or as noted in Paragraph 4.4.3.2 above. 4.4.4.3 Employment Taxes. Costs of contributions, assessments, or taxes for such items as unemployment compensation and social security paid by CM/GC, insofar as such costs are based on wages, salaries, or other remuneration paid to officers, directors, partners, or employees of the CM/GC under Paragraph 4.4.4.2. Section 4 – Compensation Part 4 – Cost of the Work 83 General Requirements 4.4.4.4 Office Expenses. All costs associated with establishing, equipping, operating, maintaining, and demobilizing CM/GC's main office costs and offices other than the Site office, except as provided in Paragraph 4.4.3.11. 4.4.4.5 Overhead Expenses. Overhead and general expenses, except as may be expressly included in Articles 4.4.2 and 4.4.3, above. 4.4.4.6 Capital Expenses. CM/GC's capital expenses, including interest on capital employed either in CM/GC's plant or for expenditures incurred in connection with the Work. 4.4.4.7 Transportation. Costs of transportation, traveling, and temporary accommodation expenses of employees, officers, or other staff of CM/GC, except as provided in Paragraph 4.4.3.19. 4.4.4.8 Relocation Expenses. Relocation costs for any employees, officers, or other staff or CM/GC, except as provided in Paragraph 4.4.3.19. 4.4.4.9 Profit Sharing. Profit sharing, bonuses, or other similar compensation of any kind paid by CM/GC to its employees. 4.4.4.10 Fines, Penalties, etc. The cost of all fines and penalties, including interest thereon, assessed against CM/GC by any federal, state or local government or quasi governmental authorities. 4.4.4.11 Lost or Stolen Equipment. The cost of replacing lost or stolen equipment of any kind, tools, including hand and small tools, or materials of any kind. 4.4.4.12 Undocumented Costs. Costs for which records required by this Contract are not established or maintained. 4.4.4.13 Negligent Costs. Costs which arise as a result of the default, breach, delinquency, oversight, negligence, or lack of due care by CM/GC or any of its employees, servants, consultants, officers, Trade Contractors, Suppliers or any other person or party which performs services for the CM/GC in connection with the Work, except as provided in Article 4.4.5. 4.4.4.14 Legal Fees. Legal fees, except as provided in Article 4.4.5. 4.4.4.15 Contingency Costs. Any contingency cost not covered by Article 4.4.5. 4.4.4.16 Other Costs. Any cost not specifically and expressly described in Articles 4.4.2 and 4.4.3 above. 4.4.4.17 Costs in Excess of GMP. Costs which would cause the Guaranteed Maximum Price, if any, to be exceeded. 4.4.5 Construction Contingency Costs. As provided in this Article 4.4.5, but only prior to the Design Professional's Certificate of Final Completion, the CM/GC shall be entitled to payment for all actually incurred and reasonable Construction Contingency Costs, as listed in this Article 4.4.5 and incident to the performance of Work under this Contract, provided that such Construction Contingency Costs are not otherwise reimbursed or recovered by CM/GC, that records required hereunder are established contemporaneously with the incurring of the cost and are maintained, and that such Construction Contingency Costs shall not in the aggregate exceed the Construction Contingency Component of CM/GC’s Component Change Order or of the GMP Change Order, as the case may be, as adjusted pursuant to Articles 4.4.6 and 4.4.7. CM/GC shall not be entitled to payment for Construction Contingency Costs which are attributable to CM/GC's gross negligence or willful misconduct. : Construction Contingency Costs may include the following: 4.4.5.1 Unanticipated Events. Costs arising from unanticipated events, including, for purposes of illustration, unanticipated local market labor or materials conditions; 4.4.5.2 Trade Proposer Defaults. Costs incurred as a result of defaults by proposers who submit proposals to CM/GC for Trade Contracts or as a result of defaults by Trade Contractors or Suppliers. 4.4.5.3 Omissions and Oversight. Interfacing omissions between and from the various Work contingents of the CM/GC and oversight of Non-Compliant Work to the extent not recoverable from the Trade Contractor, its surety or insurance. 4.4.5.4 Legal Fees. Legal fees incurred by CM/GC in connection with the performance of its services under this Contract but in no event legal fees incurred in the negotiation of, or any dispute arising out of, the relationship between Owner and CM/GC. 4.4.5.5 Acceleration Costs. Subject to the limitations stated in this Paragraph, costs incurred or charged by CM/GC to accelerate the performance of Work by a Trade Contractor so as to achieve Final Completion of such Work in advance of Section 4 – Compensation Part 4 – Cost of the Work 84 General Requirements the time stated for same in the applicable Trade Contract. Costs incurred under this paragraph shall be within the discretion of the CM/GC. However, if significant acceleration is required, CM/GC will advise Owner prior to incurring significant acceleration costs. 4.4.5.6 Reexamination Costs. If Design Professional demands that Work be uncovered for inspection, Design Professional shall inspect any uncovered Work within 72 hours of receiving CM/GC’s notice of readiness for inspection under the Contract Documents. Costs for uncovering, reexamining, retesting and replacing any Work which the Design Professional demands be uncovered for its observation and which the Design Professional did not inspect within 72 hours of receiving CM/GC's notice of readiness for inspection under Contract Documents, so long as such Work, when uncovered, is found to be in accordance with the Contract Documents. 4.4.5.7 Liens. Subject to prior approval of the Owner and the surety, costs of liens against Subcontractors, pending recovery of costs from the Subcontractor at fault. 4.4.5.8 Intentionally Omitted: 4.4.5.9 Estimating Errors: Errors or omissions in CM/GC’s estimating, preconstruction, pricing, GMP calculations, or other issues. 4.4.5.10 Damage to Work: Damage to the Work to the extent not otherwise compensated. 4.4.5.11: Correcting Deficient Work: Correcting deficient or otherwise non-compliant work. 4.4.5.12: Insurance Deductibles: The payment of insurance deductibles for losses resulting from the Project. 4.4.5.13 Other Items: Other items for which a construction manager’s or general contractor’s contingency is typically available. 4.4.6 Adjustments to Construction Contingency. 4.4.6.1 Basis of Adjustments. The contingency costs incurred by CM/GC under Article 4.4.5 shall be reimbursable to CM/GC from the Construction Contingency. The amount of the Construction Contingency shall be increased by the net amount of (i) the aggregate by which Trade Contracts entered by CM/GC are less than line item amounts stated in CM/GC's construction budget for each particular Trade Contract less (ii) the aggregate amount by which Trade Contracts entered by CM/GC exceed the line item amount stated in CM/GC's construction budget for each particular Trade Contract. All net amounts saved, if any, shall be added to the existing Construction Contingency amount and shall be available for all purposes permitted under Article 4.4.5. Funds from the Construction Contingency may not be encumbered by the CM/GC without written approval from the Owner, which approval shall not be unreasonably withheld. 4.4.6.2 Limitations on Adjustments. No Claim shall be made by CM/GC for any reason, including a default by Owner, or payment of additional compensation to CM/GC, or any other circumstance which would otherwise permit an increase in the Guaranteed Maximum Price under a GMP Change Order, for any Construction Contingency costs in excess of the established in the construction contingency cost item budgeted in the GMP Change Order or Component Change Order, as the case may be, plus any adjustments, as specified in Paragraph 4.4.6.1 above. . The Design Professional shall not have any authority to decide any such Claim other than to reject and thereby deny such a Claim. 4.4.7 Release of Construction Contingency. 4.4.7.1 Periodic Review. After approval of the GMP Change Order, the Owner and the CM/GC shall review for approval each transfer to and from the Construction Contingency on a periodic basis as requested by the CM/GC, but not less than quarterly. The Owner shall determine if the transfer is in compliance with the Contract, and if so, the Owner shall not unreasonably withhold approval of the transfer. Additionally, the CM/GC shall periodically review its accrued and anticipated Construction Contingency Costs and shall promptly inform Owner of CM/GC's determination of the extent to which the remaining Construction Contingency exceeds CM/GC's reasonably anticipated Construction andContingency Costs expected to be incurred prior to the issuance of a Final Certificate. CM/GC shall in good faith negotiate with Owner for the release of any surplus of Construction Contingency over such anticipated Construction Contingency Costs so as to permit Owner to enhance the Project; provided that any increase in Construction Contingency in accordance with Section 4.4.6.1 shall not be released until Material Completion. Any such release shall be confirmed by Change Order. Release of Construction Contingency shall occur in a timely basis as to allow adequate decision making time for the Owner. 4.4.7.2 Confirmation of Balance. The amount of any balance of Construction Contingency shall be confirmed by the written certification of the CM/GC to the Owner at each review. Section 4 – Compensation Part 4 – Cost of the Work 85 General Requirements 4.4.7.3 Gross Negligence. In no event shall CM/GC be entitled to reimbursement of any cost attributable to CM/GC's gross negligence or willful misconduct. 4.4.8 Final Disposition of Construction Contingency. The amount of any funds remaining in Construction Contingency upon the issuance of a Certificate of Final Completion of the entire Project, or upon the earlier termination of this Contract, shall be confirmed by the written certification of the CM/GC to the Owner at the time of the issuance of the Final Certificate, and any funds remaining in the Construction Contingency at the time of the issuance of the Final Certificate shall be returned to the Owner. 4.4.9 Owner Option. With respect to any furniture, equipment, or other capital items of a similar nature for which the Owner is to reimburse CM/GC its Actual Costs of acquisition, CM/GC shall, upon the termination or expiration of this Contract, and at the election of the Owner, either deliver such furniture, equipment and other capital items to the Owner, or shall credit to the Owner the depreciated (normal wear and tear only) value of such items that the Owner elects not to obtain. The CM/GC shall protect all such items during the term of this Contract against loss or damage other than normal wear and tear. 4.4.10 Discounts, Rebates, Etc. The CM/GC shall provide the Owner an opportunity to provide funds to take advantage of discounts for prompt payment of materials, supplies, equipment, etc. Any trade or quantity discounts, rebates, refunds, and/or proceeds from the sale of surplus materials or equipments shall be credited to reduce the Cost of the Work. [Remainder of Page Intentionally Left Blank] Section 4 – Compensation Part 5 – Liens 86 General Requirements PART 5 - LIENS 4.5.1 Public Property Not Subject to Lien. The CM/GC acknowledges that, pursuant to law, the Site is public property of City of Milton, Georgia and is not subject to lien or levy. The CM/GC will notify the Owner of any liens or levies against the Site of which it becomes aware. The CM/GC shall cooperate with the Owner and shall use its best efforts to assist in securing the release of any liens or levies of which it becomes aware. 4.5.2 Notice of Commencement. A Notice of Commencement shall be filed by the CM/GC with the Clerk of the Superior Court in the county in which the Project is located, pursuant to O.C.G.A. § 36-91-92. 4.5.3 Release of Liens. Neither any part of the retainage nor the Final Payment shall become due until the CM/GC, if required, shall deliver to the Owner (1) a complete release of all liens or conditional release of lien upon payment of claims arising out of this Contract in accordance with the Owner’s Final Affidavit and/or Subcontractor Retainage Release Certificate (a copy of which will be provided to any bidder on request), or (2) receipts in full in place thereof and, if required in either case, an affidavit that, so far as CM/GC has knowledge or information, the releases and receipts include all labor and materials for which a lien or claim could be filed; but the CM/GC may, if any Subcontractor or claimant refuses to provide a release, furnish a bond satisfactory to the Owner to indemnify the Owner against any lien or claim. If any lien or claim remains unsatisfied after all payments are made, the CM/GC shall refund to the Owner all monies that the latter may be compelled to pay in discharging such lien or claim, including all costs and reasonable attorney's fees. [Remainder of Page Intentionally Left Blank] Section 5 – Contract Adjustments, Disputes and Termination Part 1 – Owner’s Right to Suspend Work 87 General Requirements SECTION 5 – CONTRACT ADJUSTMENTS, DISPUTES AND TERMINATION PART 1 -Owner’s Right to Suspend the Work 5.1.1 Owner’s Right to Suspend Work. The Owner reserves the right, with or without the concurrence of the Design Professional, to suspend the Work at any time or from time to time at the Owner's sole discretion, upon giving CM/GC five (5) days advanced written notice thereof. If the Owner exercises this right and then resumes the Work covered hereby, CM/GC shall be entitled, upon timely Claim to a Change Order, to payment by Owner of any reasonable Actual Costs incurred by CM/GC in connection with the suspension and resumption of the Work, provided that such costs must be approved in writing by Owner prior to being incurred, as well as to an extension in the time for performance of the Work to the extent CM/GC is delayed by Owner's suspension. 5.1.2 Owner’s Right to Stop Work. The Owner reserves the right, for itself and for any retained Owner’s Representative, upon observation of apparent Non-Compliant Work, to immediately stop the affected Work at any time by oral direction, at the Owner's sole discretion, with notice to be provided to CM/GC within 72 hours. If the Work is later determined by the Design Professional to be in fact Compliant Work, then CM/GC, for the period commencing 72 hours after the issuance of the initial stop Work order, shall be entitled, upon timely Claim to a Change Order, to payment by Owner of any reasonable Actual Costs incurred by CM/GC in connection with the stop Work order and resumption of the Work, provided that such amount shall be paid from the Design Contingency or result in a Change Order. Further, CM/GC shall be entitled to a noncompensable extension in the time for performance of the Work to the extent CM/GC is delayed by Owner's stop Work order beyond the initial 72 hours. If the City of Milton, acting in its police and regulatory role and not as Owner, properly or justifiably stops the Work for any public purpose, such act shall not be attributed to the Owner for purposes of this Agreement. 5.1.3 Owner’s Rights Independent from Rights and Duty of the Design Professional. The rights granted to Owner under this Article are independent of the duty and obligation of the Design Professional to stop the Work for Non-Compliant Work or to issue orders of condemnation for Non-Compliant Work. [Remainder of Page Intentionally Left Blank] Section 5 – Contract Adjustments, Disputes and Termination Part 2 – Contract Adjustments and Disputes 88 General Requirements PART 2 – CONTRACT ADJUSTMENTS AND DISPUTES 5.2.1 General Provisions. 5.2.1.1 No Arbitration. There is no agreement to arbitrate any dispute arising under the Contract Documents. Any and all references to arbitration in any of the Contract Documents, including without limitation any exhibits, attachments or references, are hereby deleted and rendered null and void. 5.2.1.2 Continuation of the Work. Unless otherwise agreed in writing, and notwithstanding any other rights or obligations of either of the parties under any Contract Documents or Agreements, the CM/GC must carry on with the performance of its contract services and the Work, including all duties and obligations hereunder, during the pendency of any Claim, dispute, and other matter in question or during any alternative dispute resolution proceeding, court proceeding, or other proceeding to resolve any Claim, dispute, and other matter in question, and the Owner will continue to make payments in accordance with the Contract Documents. The Owner, however, is under no obligation to make payments on or against such Claims, disputes, and other matters in question during the time required to resolve such claims, disputes, and other matters in question. 5.2.2 General Claims for Contract Adjustments and Disputes. 5.2.2.1 General Claims of the CM/GC. Budgeting and cash flow being of material importance to the Owner, should the CM/GC suffer any injury or damage to person or property for which CM/GC reasonably believes a legal basis exists for liability on the part of the Owner or Design Professional, and should CM/GC believe that such injury or damage should result in an adjustment in the Cost of the Work or the Contract Time, CM/GC shall make such Claim in writing in the form of a Request for Change Order to the Design Professional within fourteen (14) days after such injury or damage is or should have been first observed. Any and all Claims not made within said fourteen (14) days are barred, waived, released, and discharged. The decision of the Design Professional is final and binding on both Owner and CM/GC unless the CM/GC protests the decision of the Design Professional. If the CM/GC protests the decision of the Design Professional, the CM/GC shall file a Statement of General Claim as set forth below. 5.2.2.2 Protest; Statement of General Claim; Time of Submission. No protest of a Claim decision of the Design Professional by the CM/GC, whether said Claim shall be accrued or prospective, shall be valid unless a "Statement of Claim" in writing and accompanied by vouchers and other supporting data shall have been filed with the Owner, by the CM/GC not later than thirty (30) days after the Design Professional’s decision to reject the Claim, time being of the essence. The "Statement of Claim" shall contain a concise and clear recital of the grounds and the legal basis upon which the claim is asserted, including a designation of the provision or provisions of the Contract Documents and the legal basis of liability on which the Claim is based. The Statement of Claim shall indicate the dollar amount of the Claim and the number of days of adjustment of the Contract Time. 5.2.2.3 Certain Claims Excluded from General Claims. 5.2.2.3.1 All Claims for Compensable Delay as defined in Article 3.5.8 must be filed and processed pursuant to Article 3.5.10 and are subject to the limitations of Articles 3.5.7 and 3.5.9 5.2.2.3.2 All Claims concerning designation of a Sole Source must be filed and processed pursuant to Articles 2.2.4 or 3.4.6 and are subject to the provisions and limitations therein. 5.2.2.3.3 All Claims concerning the Owner’s rejection of Construction Documents in conjunction with a Construction Document Change Order must be filed and processed pursuant to Article 2.2.3 and are subject to the provisions and limitations therein. 5.2.2.3.4 After execution of the GMP Change Order, all Claims to modify the Contract Time or extend the Material or Final Completion Date must be filed and processed pursuant to Article 3.5.10. 5.2.2.3.5 After execution of the GMP Change Order, all Claims to modify the Cost of Work or adjust the GMP must be filed and processed as a request for Change Order and subject to the processes and limitations set forth in Sections 3 and 4. If the requested Change Order is rejected, a protest may be made as set forth in Paragraph 5.2.2.2 above. Section 5 – Contract Adjustments, Disputes and Termination Part 2 – Contract Adjustments and Disputes 89 General Requirements 5.2.3 Dispute Resolution. 5.2.3.1 Initial Dispute Resolution. If a dispute arises out of or relates to this Contract or its breach, the parties shall endeavor to settle the dispute first through direct discussions between the parties’ representatives who have the authority to settle the dispute. If the parties’ representatives are not able to promptly settle the dispute, they shall refer the dispute to the senior administrators of the parties who have the authority to settle the dispute, who shall meet within fourteen (14) days of such referral. If the dispute is not settled by the senior administrators, the parties shall submit the dispute to mediation in accordance with Paragraph 5.2.3.2. 5.2.3.2 Mediation. If the dispute cannot be settled pursuant to Paragraph 5.2.3.1, the parties shall submit the dispute to mediation. The parties agree to conclude such mediation within sixty (60) days of electing mediation. The parties shall select a mutually agreeable mediator and shall share the cost of the mediator equally. Either party may terminate the mediation at any time after the first session, but the decision to terminate shall be communicated directly by the party’s representative to the other party’s representative and the mediator. 5.2.3.3 Multiparty Proceeding. All parties necessary to resolve a claim shall be parties to the same dispute resolution proceeding and shall share the costs equally. Appropriate provisions shall be included in all other contracts relating to the Work to provide for the consolidation of such dispute resolution procedures. 5.2.3.4 No Litigation. No litigation may be commenced without first following the process in this Article. Any litigation pursued in connection with or arising out of this Contract shall be filed in the Superior Court of Fulton County, Georgia after the filing party provides thirty (30) days written notice to the opposing party. The parties hereby agree that the Superior Court of Fulton County, Georgia shall have exclusive jurisdiction and venue in all matters concerning this Contract. [Remainder of Page Intentionally Left Blank] Section 5 – Contract Adjustments, Disputes and Termination Part 3 – Termination 90 General Requirements PART 3 – TERMINATION 5.3.1 Owner’s Right to Terminate Contract Without Cause. 5.3.1.1 Owner’s Right to Terminate. The Owner may terminate this Contract for convenience at its sole discretion and at any time, without cause and irrespective of whether or not CM/GC is in default of its obligations hereunder, upon providing written notice thereof to CM/GC at least thirty (30) calendar days in advance of the termination date. In the event of a termination for convenience, CM/GC shall take immediate steps to terminate Work as quickly and effectively as possible and shall terminate all commitments to third-parties, unless otherwise instructed by the Owner. Provided that no damages are due to the Owner for CM/GC’s failure to perform in accordance with this Contract, the Owner shall pay CM/GC for work performed in accordance with Article 5.3.1.2 though 5.3.1.4 below. The Owner shall have no further liability to CM/GC for such termination. Further, at its sole discretion, the Owner may pay the CM/GC for additional value received as a result of CM/GC’s efforts, but in no case shall said payment exceed any remaining unpaid portion of the Contract Sum. 5.3.1.2 Termination Prior to Entry of GMP Change Order. 5.3.1.2.1 CM/GC Fee. In the event such termination occurs prior to any Component Change Order, or after all Work under any issued Component Change Orders has been finally completed, the Owner shall pay CM/GC the sums due for the CM/GC Fee earned to the date of termination, not exceeding the unpaid balance of the Preconstruction Fee amount set forth in Article 4.1.1 (Paragraph 5 of the Contract). For purposes of calculation, the CM/GC Fee shall be deemed earned only to the extent of an amount that bears to the total CM/GC Fee the same ratio that the Work in place at the time of termination bears to the total Work, as reasonably determined by the Design Professional. 5.3.1.2.2 Prior to GMP Change Order, Items for Which Payment Shall Be Made. In the event such termination occurs prior to the entry of the GMP Change Order, the Owner shall pay CM/GC the reasonable termination expenses for: (a) Intentionally Omitted; (b) Any unpaid Actual Costs, Contingency Costs and lump sum amounts due under Component Change Orders and actually incurred or earned to the date of termination; (c) Any other costs, not exceeding the unpaid balance of the aggregate of all approved Change Order and Component Change Order sums, attributable to the termination (including, by way of illustration only, cancellation charges owed to and other incurred obligations, commitments and claims of Trade Contractors or Suppliers) and for which CM/GC is not otherwise compensated; (d) The cost to CM/GC to terminate any lease of equipment (other than motor vehicles) required specifically for the purpose of providing services under this Contract, provided that prior notice of such acquisition was given to Owner, or fair compensation by purchase or rental (at Owner's election) for any equipment retained by Owner, to the extent it has not already paid for same as an item of Actual Cost or Contingency Cost. 5.3.1.3 Termination After GMP Change Order. Should such termination occur after the entry of the GMP Change Order, the Owner shall pay CM/GC, up to the unpaid balance of the GMP, for: (1) all Actual Costs, Contingency Costs and lump sum amounts earned to the date of such termination; (2) all other costs attributable to the termination (including by way of illustration only cancellation charges owed to and other incurred obligations, commitments and claims of Trade Contractors or Suppliers) and for which CM/GC is not otherwise compensated; (3) a proportionate amount of CM/GC's Fee that bears to the total Fee under the GMP Change Order the same ratio that the Actual Cost and lump sum amounts due with respect to the Work in place at the date of termination bears to the Estimated Cost Component of the GMP Change Order; and (4) the cost to CM/GC to terminate any lease of equipment (other than motor vehicles) required specifically for the purpose of providing services under this Contract, provided that prior notice of such acquisition was given to Owner, or fair compensation by purchase or rental (at Owner's election) for any equipment retained by Owner, to the extent it has not already paid for same as an item of Actual Cost or Contingency Cost. Section 5 – Contract Adjustments, Disputes and Termination Part 3 – Termination 91 General Requirements 5.3.1.4 Condition Precedent to Payment. As a condition precedent to receiving the payment set forth in this Article 5.3.1, CM/GC shall deliver to the Owner all papers, documents, assignments and agreements relating to the Project, in particular the Construction Documents (including ownership and copyright thereof) as set forth in Article 1.7.9. 5.3.1.4.1 Assignment. If requested, CM/GC shall assign to the Owner or to an entity of Owner's choice all of CM/GC's contractual rights in respect to the Project, including but not limited to any agreements with Subcontractors or Suppliers, so that the assignee shall be fully vested with all rights and benefits of CM/GC under such papers, documents and agreements, together with releases and waivers of lien in the same manner as would be required upon Final Completion. Further, upon request, CM/GC shall assign to Owner or to the entity of Owner's choice all Trade Contracts entered into by CM/GC under Component Change Orders, and in that event the assignee shall be solely obligated to the Trade Contractors or Suppliers under such Trade Contracts for all sums payable thereunder and not previously paid by the Owner to CM/GC. 5.3.1.4.2 Cessation of Entitlement. Upon the CM/GC's assignment of agreements, contracts, Trade Contracts and/or Owner's payment of monies due CM/GC as provided in Subparagraph 5.3.1.4.1 above, CM/GC shall be entitled to no further compensation of any kind from Owner and shall have no further obligation with regard to the assigned agreements, contracts, or Trade Contracts. 5.3.2 Owner’s Right to Declare Default and/or Terminate Contract for Cause. 5.3.2.1 Owner’s Right to Terminate. Owner may declare the CM/GC to be in Default and terminate this Contract for cause, and without prejudice to any right or remedy, if CM/GC makes a general assignment for the benefit of its creditors, or if a receiver is appointed on account of its insolvency, or if it persistently or repeatedly refuses or fails, except in cases for which extensions of time are provided, to supply enough properly skilled workmen or proper materials, or if it fails to make proper payment to Trade Contractors or Suppliers for materials or labor, or persistently disregards laws, ordinances, rules, regulations or orders of any public authority having jurisdiction over the Project, or if it fails to diligently prosecute the Work in accordance with the Owner’s Program, the Construction Documents, or the Contract Documents, or if it otherwise is guilty of a material violation of any provision of this Contract. The Owner shall give the CM/GC and Surety ten (10) days’ advance written notice of the Owner’s intent to declare default and the reasons therefore, and if CM/GC, or its Surety, fail to cure the default within that time period, or fail to commence and thereafter deligently prosecute the Work necessary to cure the default, Owner may declare the CM/GC to be in default and terminate this Contract immediately. The Owner may then make alternative arrangements for completion of the Project. The Owner reserves the right in termination for cause to take assignment of all contracts between the CM/GC and its Subcontractors, vendors, and Suppliers. The Owner will promptly notify the CM/GC of the contracts that the Owner elects to assume. Upon receipt of such notice, the CM/GC shall promptly take all steps necessary to effect each assignment. 5.3.2.2 Intentionally Omitted. 5.3.2.3 Default or Termination after GMP. Upon default or termination of this Contract after entry of a Component Change Order or GMP Change Order, the Owner shall have the right to take possession of the Work, together with all materials, equipment, tools and improvements thereon and to finish the Work by whatever reasonable method the Owner may deem expedient. In such case, CM/GC shall not be entitled to receive any further payment until the Work is completed and shall take all necessary steps, including the legal assignment of its contract rights, as the Owner may require for the purpose of fully vesting in the Owner or the entity of Owner's choice with the rights and benefits of CM/GC under such obligations or commitments as the Owner may elect. Upon Final Completion of the Work governed by Change Orders then in force (including the GMP Change Order), CM/GC shall pay the Owner the amount, if any, that the (1) total cost of completing the Work governed by such Change Orders, plus (2) any damages recoverable by Owner for delays in completion, together with (3) amounts previously paid to CM/GC, exceeds the agreed upon maximum price stated in the Change Orders (including the GMP Change Order) in force at the time of said default or termination. If there is no such excess, the Owner shall pay CM/GC any portion of the Actual Cost and lump sum amounts due with respect to the Work completed by CM/GC prior to the termination for default and the CM/GC's Fee that has not previously been paid and that was owed to CM/GC at the time of termination under Change Orders then in force, provided that such payment shall not exceed the unpaid balance of the amount otherwise payable under this Contract minus the cost of completing the Project and the total amount paid by the Owner for completing the Work under such Change Orders, including all costs and damages incurred by the Owner as a result of any delay in completion, and all amounts previously paid to CM/GC, do not exceed the amount stated in the Change Orders (including the GMP Change Order) in force at the time of termination. 5.3.2.4 Owner’s Right to Prosecute the Work. Time being of the essence, if the CM/GC shall be declared in default or shall fail or neglect to carry out the Work in accordance with the Contract Documents, or fail to otherwise fully comply with its obligations under this Contract, both the CM/GC and the Surety agree that the Owner may, after giving the CM/GC and Surety twenty five (25) calendar days written notice, without prejudice to any other remedy and without invalidating the Section 5 – Contract Adjustments, Disputes and Termination Part 3 – Termination 92 General Requirements performance bond, make good such deficiencies and may deduct the cost thereof from payment due the CM/GC or at the Owner's option, the Owner may terminate this Contract and take possession of the Site and of all materials, equipment, tools and construction equipment and machinery thereon owned by the CM/GC and finish the Work by whatever method the Owner shall deem expedient. 5.3.2.5 Effect of Later Judicial Determination. In the event a court of competent jurisdiction determines (or the parties agree to settle with a consent determination) that a termination for default is wrongful or not the fault of the CM/GC, the termination shall be considered to be a Termination Without Cause and the sole remedy available to the CM/GC shall be the contractual treatment of the termination pursuant to Article 5.3.1 above and without any other damages or relief. 5.3.3 CM/GC’s Right to Terminate. 5.3.3.1 CM/GC’s General Right to Terminate. If the Project, in whole or substantial part, is stopped for a period of thirty (30) days or more under an order of any court or other public authority having jurisdiction over the Project, or as a result of an act of government, such as a declaration of a national emergency making materials unavailable, through no act or fault of the CM/GC, or should the Work be suspended by Owner under Paragraph 5.1.1 for a period of more than forty-five (45) days, then the CM/GC may, upon seven (7) days' written notice to the Owner, terminate this Contract and, upon providing Owner with all releases and waivers of lien in the same manner as would be required upon Final Completion, recover from the Owner payment of (1) Actual Costs and lump sum amounts due for all Work properly executed or Project materials actually delivered to the Site for which title has been provided to Owner, (2) the CM/GC's Fee earned to date, and, (3) upon timely claim therefor, for any proven loss sustained or cost incurred related to termination of any lease of equipment (other than motor vehicles) required specifically for the purposes of providing services under this Contract, provided that prior notice of such acquisition was given to the Owner. 5.3.3.2 CM/GC’s Right to Terminate for Nonpayment. If the Owner fails to pay the CM/GC when payment is due, the CM/GC must give written notice of the CM/GC's intention to terminate this Contract. If the Owner fails to provide the CM/GC payment or written notice of a dispute as to the amount sought by the CM/GC within forty-five (45) days after receipt of the CM/GC's written notice, the CM/GC may terminate this Contract. Upon such termination the Owner will pay the CM/GC (1) the Actual Cost for the Work properly executed or Project materials actually delivered to the Site for which title has been provided to Owner, (2) the CM/GC's Fee earned to date, and, (3) upon timely claim therefore, for any proven loss sustained or cost incurred related to termination of any lease of equipment (other than motor vehicles) required specifically for the purposes of providing services under this Contract, provided that prior notice of such acquisition was given to the Owner. 5.3.3.3 Limitation on Fee. The CM/GC Fee shall be deemed earned only to the extent of an amount that bears to the total CM/GC Fee the same ratio that the Work in place at the time of termination bears to the total Work, as reasonably determined by the Design Professional and approved by the Owner. 5.3.4 Termination for Abandonment by CM/GC. Both the CM/GC and the Surety under any bond furnished for the Project agree that the Owner, after fourteen (14) calendar days’ written notice to the CM/GC, may terminate this Contract if the CM/GC abandons the Project. If such termination occurs, the Owner shall pay the CM/GC for Work completed and for the CM/GC's actual expenses for materials, equipment, tools and machinery, less any costs the Owner incurs in re- contracting and the start-up of a replacement for the CM/GC, which amount shall be reasonably determined by the Design Professional and approved by the Owner. 5.3.5 Notices of Termination. Notwithstanding any other provision of this Contract, if the either party elects to terminate this Contract regardless of reason, the terminating party will issue a written Notice of Termination or Notice of Default to the terminated or defaulted party by Certified Mail, Return Receipt Requested. 5.3.6 Duties Upon Termination. Upon termination the CM/GC shall: (1) promptly discontinue all services affected, unless the notice directs otherwise; and (2) promptly deliver to the Owner all data, drawings, reports, summaries, and such other information and materials as may have been generated or used by the CM/GC in performing this Contract, whether completed or in process, in the form specified by the Owner. 5.3.7 Cumulative Remedies. Except as otherwise provided herein, each right and remedy provided for in this Contract shall be cumulative and shall be in addition to every other right or remedy provided for in this Contract as now or hereafter existing, at law, or in equity, or by statute, or otherwise, and the exercise or beginning of the exercise of any one or more of the rights or remedies provided for in this Contract as now or hereafter existing, at law, or in equity, or by statute, or otherwise shall not preclude the simultaneous or later exercise of any or all other rights or remedies provided for in this Contract as now or hereafter existing, at law, or in equity, or by statute, or otherwise. Section 5 – Contract Adjustments, Disputes and Termination Part 3 – Termination 93 General Requirements [Remainder of Page Intentionally Left Blank] Section 6 – Project Completion Part 1 – Material Completion 94 General Requirements SECTION 6 - PROJECT COMPLETION PART 1 – MATERIAL COMPLETION 6.1.1 Prerequisites. 6.1.1.1 No Incomplete Work. The CM/GC must attain Final Completion prior to any occupancy of the Project; provided that Owner may occupy the Project prior to completion of Permitted Incomplete Work where appropriate and upon agreement of the parties pursuant to Section 6.1.1.3 below. 6.1.1.2 Completion of Components. The Owner does not intend to accept partial occupancy of Components. All Components of the Project must achieve Final Completion. 6.1.1.3 No Partial Occupancy. In the event partial occupancy becomes appropriate, which decision shall be at the sole discretion of the Owner, a Change Order will be executed, and partial occupancy will be governed by the following: 6.1.1.3.1 Written Agreement Required. The Owner may obtain beneficial use and occupancy of any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the CM/GC by Change Order, provided such use and occupancy is consented to by the insurer providing property insurance coverage, is authorized by public authorities having jurisdiction over the Work, and a written agreement establishing such occupancy is made in accordance with this Paragraph. Such partial use and occupancy may commence whether or not the portion is finally complete, provided the Owner and CM/GC have agreed in writing by Change Order (a) to the commencement date for such partial use and occupancy, describing the portion of the Work covered by such use and occupancy, (b) to the respective responsibilities assigned to each of them for payments, retainage, if any, security, maintenance, heat, utilities, damage to the Work and insurance, and (c) to the period for correction of the Work and commencement of warranties required by the Contract Documents. Consent of the CM/GC to partial use and occupancy shall not be unreasonably withheld. No use or occupancy by the Owner of any portion of the Work shall be deemed use or occupancy unless the written agreement required hereunder is executed. 6.1.1.3.2 Inspection. Immediately prior to such partial use and occupancy, the Owner, the CM/GC and the Design Professionl shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. 6.1.1.3.3 Effect. Partial use and occupancy of a portion or portions of the Work shall not constitute acceptance of Work not complying with requirements of the Contract Documents. 6.1.2 Material Completion. 6.1.2.1 Material Completion Defined. Material Completion is when the Work or designated portion thereof is complete in accordance with the Contract Documents so that any remaining Work includes only Minor Items that can be completed or corrected within the following thirty (30) calendar days, Permitted Incomplete Work that will be completed by the date agreed upon by the parties, and any Warranty Work. Material Completion shall require complete operation of all applicable building systems including, but not limited to, mechanical, electrical, plumbing, fire protection, fire alarm, telecom, data, security, elevators, life safety, and accessibility. The Work shall be complete except for Minor Items or Permitted Incomplete Work (defined below) or Warranty Complaint Items (see Article 6.6.3). 6.1.2.1.1 Minor Item Defined. A Minor Item is a portion or element of the Work that can be totally complete within thirty (30) calendar days. 6.1.2.1.2 Permitted Incomplete Work Defined. Permitted Incomplete Work is work that is incomplete through no fault of the CM/GC, as determined by the Owner, including, but not limited to, seasonal test and balance, seasonal landscaping, scheduled elevator inspection or maintenance, incomplete Work due to failure of Separate Contractors to complete Work, and the like. 6.1.2.2 When Material Completion Required. Material Completion shall be achieved by the Material Completion Date, as provided in Paragraph 7 of the Contract and as may be amended. 6.1.2.3 Effect of Material Completion. The Liquidated Damages daily rate is reduced to zero. Section 6 – Project Completion Part 1 – Material Completion 95 General Requirements 6.1.2.4 Liquidated Damages. Should Material Completion not be achieved by the Material Completion Date, as amended, Liquidated Damages at the specified daily rate in Paragraph 8 of the Contract begin to accrue and are payable on the day immediately following the Material Completion Date required by this Contract and shall continue to accrue and be payable each day thereafter until Material Completion is accomplished. [Remainder of Page Intentionally Left Blank] Section 6 – Project Completion Part 2 – Final Completion 96 General Requirements PART 2 – FINAL COMPLETION 6.2.1 Final Completion. 6.2.1.1 Final Completion Defined. Final Completion is the completion of all Work, including completion of all Minor Items as defined in Section 6, Part 1, except any Warranty Work, as provided herein. Final Completion shall be evidenced by the Design Professional’s Certificate of Final Completion, a form of which is attached hereto as Exhibit N and incorporated herein by reference. Final Completion should include completion of Permitted Incomplete Work, as defined in Section 6, Part 1, for which the reason that the Work was incomplete has been removed. 6.2.1.2 When Final Completion Required. Final Completion shall be obtained not later than thirty (30) days after the Material Completion Date, as amended, provided that Permitted Incomplete Work shall be completed as expeditiously as possible, but not later than a date established by the Design Professional. The Design Professional’s Certificate of Final Completion shall not be issued until all Permitted Incomplete Work is completed. 6.2.2 Effect of Achieving Final Completion. Upon the date when Final Completion is achieved and the Design Professional’s Certificate of Final Completion is issued, the following matters are conclusively determined: 6.2.2.1 Project Completion. The Project and the Work (other than any Warranty Work) are complete. 6.2.2.2 Occupancy of the Work. The Owner may immediately occupy the Work without restriction. 6.2.2.3 Warranty Periods. All warranties begin to run from the date Final Completion is achieved, subject to any agreement made pursuant to Section 6.1.1.3.1. 6.2.2.4 Utilities. All utilities become the responsibility of the Owner. 6.2.2.5 Insurance. The Owner is responsible for all insurance for the Project. 6.2.2.6 Payment for Final Completion. The CM/GC may request payment of the remaining Contract Sum including but not limited to retainage, less amounts credited the Owner or incurred as Liquidated Damages. 6.2.3 Effect of Failure to Achieve Final Completion. 6.2.3.1 Notice and Effect of continued Failure to Achieve Final Completion. Should Final Completion not be achieved within the time specified, the Owner will issue to the CM/GC a fourteen (14) day notice as a final warning to complete the Work. If Final Completion is not achieved by the end of the 14th day from the date of the Notice, the following matters are conclusively determined, subject to any request for extension of time as set forth in paragraph 6.2.3.2 below: 6.2.3.1.1 Breach of Covenant of Time. As time is of the essence in the completion of the Work, the CM/GC is in breach of the covenant of time and is subject to default. 6.2.3.1.2 Ineligibility to Bid Upon CityContracts. The CM/GC is ineligible to bid upon any contract invitation to bid of City of Milton, Georgia. In the event a bid has been submitted but the bid award has not been made, the CM/GC’s ineligibility requires that its bid be rejected. 6.2.3.1.2.1 Automatic Restoration of Eligibility to Bid. The CM/GC’s eligibility to bid upon City of Milton contracts shall be restored automatically as of the date of achievement of Final Completion as evidenced by the Certificate of Final Completion. 6.2.3.1.2.2 Application to Reinstate Eligibility to Bid. The CM/GC’s eligibility to bid upon City of Milton contracts may be reinstated upon the following: (a) A written application to the Owner, not earlier than 18 months after the date of failure to achieve Final Completion, requesting reinstatement of eligibility, and (b) The showing of good and just cause why the CM/GC’s eligibility should be reinstated, or that there is good and just cause to believe that the achievement of Final Completion was impossible to the extent that determination of ineligibility was improvident. Section 6 – Project Completion Part 2 – Final Completion 97 General Requirements (c) The Owner may, upon written request, permit the CM/GC to make a personal presentation upon the application to and approval by the City of Milton City Council. 6.2.3.2 Extension of Time for Final Completion. The CM/GC may file a request for an additional extension of time in the manner prescribed in Section 3, Part 4, and the effects of failure to achieve Final Completion shall be suspended until the Design Professional’s decision is provided. Should the Design Professional suggest approval of the application for extension of time generally, and should the Owner approve same (or grant the Design Professional written authority to approve same), the time for achieving Final Completion shall be adjusted accordingly. Should the Design Professional suggest approval of the application for extension of time for a specific item of Work, and should Owner approve same (or grant the Design Professional written authority to approve same), that item of Work shall be deemed Permitted Incomplete Work with a specific individual final completion date. [Remainder of Page Intentionally Left Blank] Section 6 – Project Completion Part 3 – Inspections for Completion of the Work 98 General Requirements PART 3 – INSPECTIONS FOR COMPLETION OF THE WORK 6.3.1 General Responsibility of the CM/GC for Inspection. The CM/GC acknowledges and agrees that he has an indivisible, non-delegable, and nontransferable contractual obligation to the Owner to make his own inspections of the Work at all stages of construction, and he shall supervise and superintend performance of the Contract in such manner as to enable him to confirm and corroborate at all times that all Work has been executed strictly, literally, rigidly, and inflexibly in accordance with the methods and materials designated in the Contract Documents. The CM/GC’s inspections are also for the purpose of permitting the CM/GC to accurately represent that (a) his certifications on periodical estimates are true and correct and (b) his notices of readiness for inspections are true and correct. Accordingly, the CM/GC acknowledges and agrees that he may not defend or excuse any deviation from the Contract Documents on the ground (a) that the deviation was not brought to his attention by another person or party or other persons or parties or (b) that a Subcontractor is or Subcontractors are at fault. 6.3.2 Notice of Readiness for Inspection for Material Completion. 6.3.2.1 Preparation of Preliminary Punchlist. Prior to the Material Completion Date, as amended, the CM/GC shall correct all Non-compliant or Incomplete Work. 6.3.2.2 CM/GC’s Inspection and Notice. At such time as the CM/GC believes that the Work has progressed to the point that all remaining incomplete or Non-Compliant Work (other than Permitted Incomplete Work), can be completed or corrected within not more than thirty (30) days, the CM/GC shall perform an inspection of the Work. At the conclusion of this inspection, the CM/GC shall prepare a “Preliminary Punchlist” indicating Work that is either incomplete or not in compliance with the Contract Documents. A copy of the Preliminary Punchlist will be provided to the affected Subcontractors or Trade Contractors, the Design Professional and the Owner. When this Work has been corrected or completed to the extent that all remaining Work is Minor Items (that can be corrected or completed within thirty (30) days) or Permitted Incomplete Work (as defined in Section 6, Part 1), the CM/GC will send an updated punchlist to the Design Professional and Owner. After or simultainously with the provision of this punchlist, the CM/GC shall provide a written notice to the Design Professional and the Owner, the “Notice of Readiness for Inspection for Material Completion”, requesting an inspection to determine Material Completion in the following words: The Work on the Contract for the [show name of Project as it appears in the Contract] having been materially completed, it is requested that an Inspection for Material Completion be made promptly by the Design Professional in accordance with Section 6 of the General Conditions. The Preliminary Punchlist, to the best of the CM/GC’s knowledge, is attached hereto. 6.3.2.3 In the event the CM/GC shall have issued the "Notice of Readiness for Inspection for Material Completion " prematurely, hereinafter referred to as a "false start," the CM/GC shall be liable for the damage resulting from the false start including, but not limited to, the salaries, professional fees, and travel and living expenses of the persons or parties inconvenienced by the false start. 6.3.3 Conducting the Inspection for Material Completion. 6.3.3.1 Initial Punchlist. The Design Professional shall conduct the Inspection for Material Completion. Upon receipt of the CM/GC’s notice, the Design Professional shall confirm the punchlist provided by the CM/GC and prepare a comprehensive list of items to be completed or corrected, adding or deleting such Minor Items or Permitted Incomplete Work as shall be appropriate. Where appropriate, the Design Professional shall assign completion dates for the items of Permitted Incomplete Work. Such a list is referred to as the "Initial Punchlist." The “Initial Punchlist" is defined as the list of items of required Work that, as a minimum, are to be accomplished for the CM/GC to achieve Final Completion of the Project; provided that such list shall not alter the responsibility of the CM/GC to complete all work in accordance with the Contract Documents. 6.3.3.2 Prompt Completion and Correction by CM/GC. The CM/GC shall proceed promptly to complete and correct items on the Initial Punchlist and all Supplemental Punchlists. Failure to include an item on any such list does not alter the responsibility of the CM/GC to complete all Work in accordance with the Contract Documents. 6.3.4 Certificate of Material Completion. Upon successful completion of the inspection, the Design Professional shall issue a Certificate of Material Completion, a form of which is attached hereto as Exhibit M and included herein by reference. If the Design Professional’s inspection, or observations by the Design Professional, discloses any item, whether or not included on the Initial Punchlist or any applicable Supplemental Punchlist, which is not in accordance with the requirements of the Contact Documents, the CM/GC shall, before issuance of any Certificate of Material Completion, complete or correct all items on the Initial Punchlist and any applicable Supplemental Punchlist so that the Project is substantially complete and only Minor Items and Permitted Incomplete Work remain to be completed or corrected, which can be completed or corrected within not more than thirty (30) days, or as otherwise agreed. Section 6 – Project Completion Part 3 – Inspections for Completion of the Work 99 General Requirements 6.3.5 Determination of Final Completion. 6.3.5.1 Final Completion of the Project. Final Completion of the Project shall occur when the Design Professional determines that (1) the entire Project and all of its systems, including access to the Project and any off-site Work required by the Contract Documents, are sufficiently complete and cleaned in accordance with the Contract Documents, (2) the required Certificates of Occupancy and other governmental approvals have been obtained, and (3) the Design Professional issues the Certificate of Final Completion. In order for the CM/GC to have achieved Final Completion of the Project, the Design Professional must have determined that the Owner is able to occupy the Project and all of the Site and utilize all building systems per the Contract Documents. The Project must also be properly cleaned as set out above (See Section 3.1.13).The Owner reserves the right to waive any of the above conditions for a part or all of the Project without relieving the CM/GC of any other responsibilities. CM/GC shall not stop or delay the Work because of a dispute regarding a proposed Certificate of Final Completion or the Owner's or Design Professional’s actions related to a proposed Certificate of Final Completion. 6.3.5.2 Notice from CM/GC. Upon completion of the items noted on the Initial and any Supplemental Punchlist, including all Minor Items and such Permitted Incomplete Items as are due to be completed, the CM/GC shall give to Design Professional and Owner notice requesting an Inspection for Final Completion using the following language: The Work on the Contract for the [show name of Project as it appears in the Contract] having been 100% completed, except for Permitted Incomplete Work not yet due to be completed, it is requested that an Inspection for Final Completion be made promptly by the Design Professional in accordance with Section 6 of the General Conditions. No Final Inspection shall be made until such time as the Design Professional has received a notice in the exact form indicated above and a copy thereof has been received by the Owner. At that time, CM/GC shall submit to the Design Professional a proposed Certificate of Final Completion for each portion of the Work CM/GC believes is, in fact complete. Each proposed Certificate of Final Completion must state the responsibility of each party for security, maintenance, heat, utilities, damage to the Work, and insurance, must include a list of any Permitted Incomplete Items to be completed or corrected, and must fix the time within which the CM/GC shall complete the items listed therein. Failure to include an item on any such list does not alter the responsibility of the CM/GC to complete all Work in accordance with the Contract Documents. The notice requesting the Inspection for Final Completion should be given upon completion of the Work (other than any Permitted Incomplete Work), which should occur within thirty (30) days of achieving Material Completion. 6.3.5.3 Final Accounting. At the time CM/GC gives a notice requesting an Inspection for Final Completion to the Design Professional, CM/GC shall submit to the Owner a final accounting showing the total Actual Cost of the Work in such form as the Owner may reasonably require, accompanied by the following: 6.3.5.3.1 Documentation. All documentation (in proper form) required to be submitted to the Owner pursuant to any provision of this Agreement; 6.3.5.3.2 Certificates. Certificates and other documents as may be required to demonstrate that all payrolls, bills for materials and equipment, and other indebtedness and liabilities connected with the Work for which the Owner or the property thereof might in any way be responsible have been paid or otherwise satisfied; 6.3.5.3.3 Waivers. 6.5.9.4.3.1 Liens. Subject to Paragraph 4.5.3, full waivers of lien and general releases (to the extent not theretofore submitted) issued by the CM/GC and by all Trade Contractors and Trade Suppliers who may claim through CM/GC or its Trade Contractors, in favor of the Owner and its designees; 6.5.9.4.3.2 Claims. Subject to Paragraph 4.5.3, full waivers of lien and general releases for any claim theretofore asserted for damages resulting from injury or death to any employee, Trade Contactor, or the public at large or for any other claims theretofore asserted which might constitute a lien upon the property of Owner; and 6.3.5.3.4 Full Accounting. A full accounting of the Actual Cost and Contingency Cost of the Work. The CM/GC shall be deemed to waive all rights to submit any claim for any cost incurred as of the date the request for final payment is submitted and for which proper documentation was not retained or does not exist; 6.3.5.3.5 Drawings and Specifications. One complete set of marked up drawings and specifications showing actual locations of utilities and all changes and alterations made to the Work during construction; Section 6 – Project Completion Part 3 – Inspections for Completion of the Work 100 General Requirements 6.3.5.3.6 Affidavits. The affidavit and bond set forth in subparagraphs 6.4.1.2.1 and 2; 6.3.5.4 In the event the CM/GC shall have issued the "Notice of Request for Inspection for Final Completion" prematurely, hereinafter referred to as a "false start," the CM/GC shall be liable for the damage resulting from the false start including, but not limited to, the salaries, professional fees, and travel and living expenses of the persons or parties inconvenienced by the false start. 6.3.5.5 The Design Professional may notify the CM/GC that it does or does not approve of a proposed Certificate of Final Completion. If the Owner rejects a proposed Certificate of Final Completion, the Design Professional, on behalf of the Owner, will provide CM/GC with written notice, as to the Owner's basis for rejecting a proposed Certificate of Final Completion. 6.3.6 Conducting the Interim Inspection for Punchlist Completion. Upon receipt of an application for an Inspection for Final Completion and the required documentation from CM/GC, the Design Professional shall conduct the Inspection for Final Completion accompanied by the CM/GC, Owner. The Design Professional shall confirm the items noted on the Initial and Supplemental Punchlists have been completed including all Minor Items. Upon successful completion of the inspection, the Design Professional shall issue a Report of Interim Inspection, noting any Permitted Incomplete Work which remains to be accomplished and the date by which it is to be completed. In the event all Permitted Incomplete Work has been completed at the time of this Interim Inspection, and the Design Professional so certifies, then this inspection shall be deemed an Inspection for Final Completion. In the event any Minor Item is determined to be incomplete, the Owner may give the fourteen (14) day notice of failure to complete the Work set forth in Article 6.2.3.1. 6.3.7 Conducting the Inspection for Final Completion. In the event that Permitted Incomplete Work remains after the Interim Inspection for Punchlist Completion, at such time when all such Permitted Incomplete Work has been completed or scheduled for completion, the Owner shall call for, and the Design Professional shall schedule, the Final Inspection with the Owner and CM/GC. The Design Professional shall conduct the Inspection for Final Completion and shall confirm that all Permitted Incomplete Work has been completed. Upon successful completion of the inspection, the Design Professional shall issue the Certificate of Final Completion and Final Payment, and any remaining funds withheld in accordance with Paragraph 4.3.5 (except the Warranty Retainage and as otherwise specifically provided herein) may, upon an Application for Payment, be paid to the CM/GC as provided in Article 6.5.14. A form of the Certificate of Final Completion is attached hereto as Exhibit N and incorporated herein by reference. Any Final Documents, including satisfactory test and balance reports on the heating, ventilating and air conditioning system and the facility operation and maintenance instructions and any other documents specified by the Design Professional in Division 1 of the Specifications,not yet submitted must be submitted with the application for Final Payment. In the event any item of Permitted Incomplete Work is determined to be incomplete and the date for its completion has passed, the Owner may give the fourteen (14) day notice of failure to complete the Work set forth in Article 6.2.3.1. 6.3.8 Final Notice of Non-Compliant Work. The Final Notice of Non-Compliant Work is issued as a result of the inspection for Final Completion and is also known as the Final Punchlist. Upon the completion or correction of this Non- Compliant Work (“Punchlist” work) the Design Professional, with the approval of the Owner, will issue the Final Completion Certificate. Costs associated with the repair or replacement of Non-Compliant Work will be at the CM/GC’s sole expense and shall not be deducted from the contingency funds of either the CM/GC or the Owner. 6.3.9 Certificates of Occupancy. The CM/GC shall obtain the Certificates of Occupancy. 6.3.10 Notification of Owner of Site Visits by the CM/GC or Trade Contractors. Following the successful completion of the Inspection for Final Completion, the CM/GC and his Trade Contractors or Subcontractors shall make no visits to the Site without first giving notice to the Owner. [Remainder of Page Intentionally Left Blank] Section 6 – Project Completion Part 4 – Final Documents 101 General Requirements PART 4 – FINAL DOCUMENTS 6.4.1 Final Documents. 6.4.1.1 Final Documents Defined. Final Documents consist of all Contract Documents, including but not limited to Specifications, warranties, and guarantees required by the Contract Documents as well as the documents described below. 6.4.1.2 Minimum Specific Final Documents Required. Prior to beginning processing of the Application for Payment upon the Certificate of Final Completion, the following, must be submitted to the Owner: 6.4.1.2.1 Affidavit. A Final Affidavit in the exact form as shown in Section 7, Forms. 6.4.1.2.2 Bond. A Five Year Bond of Roofs and Walls meeting the requirements described in Section 1.5.1 and in the penal sum of the Actual Cost of the walls, wall cladding, wall insulation, roof, insulation and roof deck, but not less than the amount shown as in the approved initial breakdown for these roof and wall systems. 6.4.1.2.3 Marked-up Construction Documents. The CM/GC shall provide a complete set of Marked-up Construction Documents to the Design Professional, which set shall reflect all changes caused by Addenda, field changes, Change Orders, or observed changes by the CM/GC or Subcontractor(s) for the purpose of the Design Professional’s issuance of As Built Documents to the Owner. 6.4.1.2.4 Operation and Maintenance Data and Instructions and Training. The CM/GC shall furnish proper written instructions to the Owner on operation and maintenance of all mechanical and electrical equipment. The CM/GC shall provide training in the operation and maintenance of all mechanical and electrical systems to Owner in the presence of the Design Professional and shall give notice in writing to the Design Professional and Owner at least fifteen (15) days prior to the date it is proposes for the training. For all items of mechanical or electrical equipment or apparatus installed that require operation or maintenance after occupancy, the CM/GC shall furnish and deliver to the Owner complete brochures and data, as prepared and published by the manufacturers covering details of operation and maintenance. 6.4.1.2.5 Certificates of Manufacturers for Major Components. The CM/GC expressly agrees that the manufacturers are solely the agents of the CM/GC. In accomplishing this certification, the CM/GC shall obtain the Specimen Certificate of Manufacturer (the form of which is provided in Section 7) from the respective manufacturers and coordinate the initial start-up and testing of building systems. In all cases where the equipment of two or more manufacturers ties in and functions together, the CM/GC shall require the field representatives to perform simultaneously the initial start-up, the testing, and the placing of their equipment into operation. "Start-up" is defined as putting the equipment into action. "Testing" is defined as performing such testing as is stipulated in the Contract Documents to be performed. "Placing into operation" is defined as operating the equipment for a sufficient period of time for the determination to be made that it is performing properly. All building commissioning activities should be completed, with the exception of those designated as “Permitted Incomplete Work.” For elevators, , major components of air conditioning systems; major components of heating systems; start-up, testing, and placing into operation shall be performed by the field representative(s) of the manufacturer(s), and certificate(s) of the manufacturer(s), a.k.a. Specimen Certificate of Manufacturer, shall be filed with the Owner on the letterhead(s) of the manufacturer(s) in which the manufacturer(s) certifies or certify that "the equipment has been installed in strict compliance with the recommendations of the manufacturer(s) and is operating properly,” in the format shown in Section 7, Forms. The manufacturer shall list in the certificate the item or items furnished to the job and the date, name, or other positive means of identifying any supplementary documents containing the recommendations of the manufacturer, with a copy of each of the supplementary documents attached to the certificate. 6.4.1.2.6 Final Certification of Costs. For proper capital asset reporting of the Project, the CM/GC shall submit his Final Certification of Costs in the format set forth in Exhibit L. 6.4.1.2.7 Name Plate Data for Computerized Maintenance Management System (CMMS). The CM/GC shall input all equipment into a BIM Model using a Level of Development (LOD) 5 that is compatiable in software and nomenclature with the Design Professional’s BIM Model. Upon completing input of all equipment name plate data Section 6 – Project Completion Part 4 – Final Documents 102 General Requirements in a manner approved by the Owner, the CM/GC shall download the information into an xcel format acceptable to the Owner and compatible with the CMMS. 6.4.2 Presentation of Final Documents. At the time of the Inspection for Final Completion, but in any event prior to the application for Final Payment, the CM/GC will provide the Owner with a three ring binder containing all of the Final Documents, warranties, and guarantees required by the Contract Documents. Included in the binder shall be the documents indicating the brand names actually used in the installation of the Work. 6.4.3 Keys. At the time of the Inspection for Final Completion, but in any event prior to the application for Final Payment, CM/GC shall deliver to Owner keys with tags indicating number and/or description of door or room each key is intended to fit attached to each key. CM/GC shall prepare and furnish with the keys an itemized key schedule in quintuplicate listing the door or room number and description, serial number of key, and number of keys being delivered for each door or lock. [Remainder of Page Intentionally Left Blank] Section 6 – Project Completion Part 5 – Payment for Material Completion and Final Payment 103 General Requirements PART 5 – PAYMENT FOR MATERIAL COMPLETION AND FINAL PAYMENT 6.5.1 Payment for Material Completion. Payment for Material Completion shall be due thirty (30) days after receipt by the Owner of the Application for Payment upon achievement and certification of Material Completion. Payment shall be made by a check payable jointly to the CM/GC and surety and shall be mailed to the surety. 6.5.2 Application for Payment for Material Completion. 6.5.2.1 Certification of CM/GC. Upon submitting its Application for Payment for Material Completion, the CM/GC shall certify, over his own signature, that the Work provided for by the Contract Documents has been completed under the terms and conditions thereof, , except for any Minor Items or Permitted Incomplete Work. 6.5.2.2 Supporting Documentation. 6.5.2.2.1 Financial Data. The CM/GC shall submit evidence satisfactory to the Design Professional that all payrolls, material bills, and other indebtedness connected with the Work have been paid. 6.5.2.2.2 Affidavit and Bond. The CM/GC shall attach copies of the affidavit and bond set forth in subparagraphs 6.4.1.2.1 and 2 above, execute the payment certification and forward it directly to the Design Professional. 6.5.3 Intentionally Omitted. 6.5.4 Intentionally Omitted. 6.5.5 Final Payment. Final Payment shall be due thirty (30) days after receipt by the Owner of the Application for Payment upon achievement and certification of Final Completion, provided that Final Documents must have also been submitted. Payment shall be made by a check payable jointly to the CM/GC and surety and shall be mailed to the surety. Owner shall process the Final Payment as expeditiously as possible in accordance with the certification of the Design Professional, but interest shall not accrue until sixty (60) days have elapsed from receipt, unless error is found in the application or supporting documents; provided that no interest shall accrue for items in dispute. 6.5.5.1 Certification of CM/GC. Upon submitting its Application for Final Payment, the CM/GC shall certify, over his own signature, that the Work provided for by the Contract Documents has been completed under the terms and conditions thereof, and that the entire balance of the Contract is due and payable. 6.5.6 Intentionally Omitted. 6.5.7 Incomplete Work. In the event any Work required hereunder is incomplete, and the Design Professional so certifies at the time it issues the Certificate of Final Completion, the Owner may, at its sole discretion and without terminating this Agreement, make payment of the balance due to the CM/GC hereunder, including the unpaid remainder of CM/GC’s Fee for the portion of the Work fully completed; and such payment shall be made under the terms and conditions governing final payment hereunder except that the Owner may retain an amount equal to 200% of the cost of the performance of such incomplete Work as estimated by the Design Professional. 6.5.8 No Substantial Completion. The Project must be finally complete before acceptance by the Owner. Substantial completion is not acceptable. 6.5.9 Final Completion of the Entire Project and Final Payment. Notice Required. When the entire Project, as defined in the GMP Change Order, is completed, CM/GC shall notify the Owner in writing of its intention to make an application to the Design Professional to certify Final Completion seven (7) days before the application is made. 6.5.10 Certification of CM/GC Before Final Payment. Before submitting its Final Application for Payment, CM/GC shall certify to the Owner the following: 6.5.10.1 Work Completed. Construction of the Project has been completed substantially in accordance with the Contract Documents, and all labor, services, materials, and supplies used in such construction have been paid or provided for; 6.5.10.2 Necessary Facilities Complete. All other facilities necessary in connection with the construction of the Project have been constructed, acquired, and installed substantially in accordance with the Contract Documents; 6.5.10.3 Work Paid For. All costs and expenses incurred as required by the Contract Documents, have been paid or provided for. The Design Professional shall certify (to the best of its knowledge and belief) the matters covered by the clauses above. Section 6 – Project Completion Part 5 – Payment for Material Completion and Final Payment 104 General Requirements 6.5.11 Payment. Upon the Design Professional’s issuance of a Certificate of Final Completion under Section 6, Part 5, Owner shall pay to CM/GC all amounts owed to CM/GC for Actual Costs, Contingency Costs or Fees earned but not yet paid CM/GC under the GMP Change Order, assuming all other conditions of the Agreement have been met. 6.5.12 Conditional Certificate. If a Certificate of Final Completion should be issued by Design Professional but for claims described in Paragraph 6.3.5.3.3, Design Professional may, with the prior approval of Owner, in Owner’s sole discretion, issue such Certificate, but Owner may condition such approval on the retention of such amounts from any sums due the CM/GC, the certificate of insurance coverage or the provision of such other security, as the Owner shall determine necessary or appropriate to protect the interests of the Owner. 6.5.13 Prerequisites to Payment. Neither final payment nor any amounts withheld pursuant to Section 4, Part 3 shall become due until the CM/GC submits to the Owner: 6.5.13.1 Final Affidavit. An affidavit (Final Affidavit) that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or Owner's property might be responsible or encumbered (less amounts withheld by the Owner) have been paid or otherwise satisfied, including unconditional waivers and releases upon final payment from all Trade Contractors, Suppliers, material men, or other third parties that provided labor, services, equipment, or material to the Project. 6.5.13.2 Non-Collusion Affidavit. An affidavit (Non-Collusion Affidavit) a form of which is provided in Section 7. 6.5.13.3 Consent of Surety. Consent to final payment by any surety having issued a performance or payment bond for any Work; and 6.5.13.4 Other. Other data establishing payment or satisfaction of obligations, such as receipts, releases and waiver of liens, claims, security interests or encumbrances arising out of the Contract Documents, to the extent and in such form as may be designated by the Owner. 6.5.14 Disbursement of Retainage. The Retainage under this Agreement shall be disbursed only after: 6.5.14.1 Satisfactory Performance. This Agreement shall have been performed to the satisfaction of the Owner in accordance with the Contract Documents, as evidenced by the signature of Design Professional on the Final Application and Certificate of Payment and approval by the Owner. 6.5.14.2 Lien Waivers. Owner shall have received from the CM/GC a Georgia statutory Waiver and Released Upon Final Payment or an affidavit to the effect that it and all its Trade Contractors, Subcontractors, and suppliers of labor and materials have been paid in full (which Waiver and Rlease Upon Final Payment or affidavit must be in form and substance sufficient as a matter of law to dissolve all liens or claims of lien for labor or service performed or rendered and materials supplied or furnished, in connection with the construction and installation of the Project), and with respect to this Agreement, the CM/GC shall have provided to the Owner the Final Certificate of Occupancy for the building. 6.5.15 Failure to Provide Release or Waiver. If a Trade Contractor or other person or entity entitled to assert a lien against the Owner's property refuses to furnish a release or waiver required by the Owner, the CM/GC may furnish a notice from the surety on the payment bond that the lien is covered under the payment bond or a bond satisfactory to the Owner to indemnify the Owner against such lien. If such liens remain after the Owner makes payments to the CM/GC in accordance with this Agreement, the CM/GC shall indemnify the Owner for all loss and cost, including reasonable attorneys' fees incurred as a result of any and all such liens. 6.5.16 Acceptance of Final Payment by CM/GC. Acceptance of final payment with respect to the Project shall operate as settlement, waiver, release, discharge and payment in full of all claims by the CM/GC against the Owner of any nature arising out of the Project. 6.5.17 Continued Right to Audit. Approval of an Application for Payment by the Owner shall not foreclose the right of the Owner to examine the books and records in accordance with the Contract Documents to determine the correctness and accuracy of any item. [Remainder of Page Intentionally Left Blank] Section 6 – Project Completion Part 6 – Correction of Work after Final Payment 105 General Requirements PART 6 – CORRECTION OF WORK AFTER FINAL PAYMENT 6.6.1 Non-Complying or Defective Work. Neither (1) the Design Professional's Certificate of Final Completion, nor (2) any decision of the Design Professional, nor (3) payment, nor (4) any provision in the Contract shall relieve the CM/GC of responsibility for faulty materials, faulty workmanship, or omission of Contract Work, and CM/GC shall remedy any defects or omissions resulting therefrom and pay for any damage to other Work resulting therefrom. 6.6.1.1 Notice of Non-Compliant or Defective Work. The Owner, or Design Professional, shall give notice of observed defects or omissions with reasonable promptness. Attached to or included within the notice shall be a Notice of Non- Compliant Work. 6.6.1.2 Correction of the Work. The CM/GC shall within the space of time designated in Notices of Non-Compliant Work and without expense to the Owner, correct, remedy, replace, re-execute, supply omitted Work, or remove from the premises all Work designated as Non-Compliant by the Design Professional. The CM/GC shall give prompt notice in writing to the Design Professional, with copy to the Owner, upon completion of the supplying of any omitted Work or the correction of any Work designated as Non-Compliant by the Design Professional. In the absence of said notice, it shall be and is presumed under this Contract that there has been no correction of the Non-Compliant Work or supplying of omitted Work. If the CM/GC does not remove, make good the deficiency, correct, or remedy faulty Work, or supply any omitted Work within the space of time designated in Notices of Non-Compliant Work without expense to the Owner, the Owner, after ten (10) days' notice in writing to the CM/GC, may remove the Work, correct the Work, remedy the Work or supply omitted Work at the expense of the CM/GC. In case of emergency involving health, safety of property, or safety of life, the Owner may proceed at once with correction of the Work without waiving any rights of the Owner. Correction of Defective Work executed under the plans and Specifications or supplying of omitted Work, whether or not covered by warranty of a Subcontractor or materialmen, remains the primary, direct responsibility of the CM/GC. The foregoing obligation of the CM/GC shall remain in effect until the expiration of the statute of limitations covering the Work. 6.6.2 Warranty and Guaranty. As additional security for the fulfillment of such obligation, but in no way limiting the same, the CM/GC warrants and guarantees (1) that all Work executed under the plans and Specifications shall be free from defects of materials or workmanship for a period of two years from the date of the Final Certificate of the Design Professional, and (2) that for not less than two years from the date of the Final Certificate of the Design Professional, or for such greater space of time as may have been designated in the Specifications, products of manufacturers shall be free from defects of materials and workmanship. Whenever written guaranties or warranties are called for, the CM/GC shall furnish the aforesaid for such period of time as may be stipulated. The aforesaid instruments shall be in such form as to permit direct enforcement by the Owner against any Subcontractor, materialmen, or manufacturer whose guaranty or warranty is called for. The CM/GC further agrees that: 6.6.2.1 Jointly and Severally Liable. The CM/GC is jointly and severally liable with such Subcontractors, materialmen, or manufacturers; and 6.6.2.2 Agents of the CM/GC. The said Subcontractors, materialmen, or manufacturers are agents of the CM/GC for purposes of performance under this article, and the CM/GC, as principal, ratifies the warranties or guaranties of his aforesaid agents by the filing of the aforesaid instruments with the Owner. The CM/GC, as principal, is liable for the acts or omissions of his agents. 6.6.2.3 Service of notice. Service of notice on the CM/GC that there has been breach of any warranty or guaranty will be sufficient to invoke the terms of the instrument. 6.6.2.4 Bind Subcontractors, etc. The CM/GC will bind his Subcontractor, materialmen, and manufacturers to the terms of this article. 6.6.2.5 Warranties No Limitation. The calling for or the furnishing of written warranties shall in no way limit the contractual obligation of the CM/GC to correct the Work as set forth in this Part. The remedies stated in this article are in addition to the remedies otherwise available to the Owner, do not exclude such other remedies, and are without prejudice to any other remedies. 6.6.2.6 Warranty Bonds. CM/GC shall also furnish certain Warranty Bonds, as described in Section 1.5.1. 6.6.3 Warranty Complaint Item Procedure. 6.6.3.1 Notice of Warranty/Guaranty Complaint Items. The CM/GC, Design Professional, and Owner acknowledge that many malfunctions in building equipment and systems do not constitute Non-Compliant or defective Work as contemplated Section 6 – Project Completion Part 6 – Correction of Work after Final Payment 106 General Requirements in Article 6.6.1 above. Accordingly, the Owner may provide notice of such apparent warranty Work by a Warranty Complaint letter, sent by statutory mail, or facsimile, or as otherwise allowed by Article 1.1.5 to the CM/GC. The letter should outline, in non-technical language, the complaint item. In emergency situations, the initial notification may be oral to a person or office designated by the CM/GC. The CM/GC shall respond promptly to all such notices. 6.6.3.2 Duty to Correct. In light of the above stated CM/GC’s warranty and guarantee, during the two year period of the warranty and guarantee, any defects of material or workmanship that become apparent shall be the responsibility of the CM/GC until and unless the CM/GC can show abuse or design defect. The CM/GC shall immediately correct all defects that become known during the two year period at no cost to the Owner unless notice is given to the Design Professional and Owner, prior to correcting the defect that the cause of the defect is the result of abuse or design deficiency. 6.6.3.2.1 Initial Response. When the Owner or the Design Professional notifies the CM/GC of a defect, the CM/GC will visit the Site to review the complaint within five (5) days and shall promptly correct the Work. If the CM/GC fails to respond within this time limit, the Owner may correct the defect or malfunction and charge the CM/GC for the Work. The CM/GC shall give notice in writing to the Owner when corrections have been completed. 6.6.3.2.2 Design Defect or Owner Abuse. If the CM/GC believes that a design defect or Owner abuse has caused the malfunction or defect, he will notify the Design Professional, and the Design Professional will issue a formal decision in his capacity as Design Professional and impartial interpreter of the conditions of the Contract. If it is determined the complaint is not the responsibility of the CM/GC, the CM/GC shall be promptly paid for the cost of the corrective Work. 6.6.3.2.3 Emergency Situations. If the condition is an emergency, this will be communicated to the CM/GC with the request that no matter what he finds, corrections are to be accomplished immediately. The CM/GC shall respond to the notice in emergency situations within twenty-four (24) hours. If the CM/GC fails to respond within this time limit, the Owner may correct the defect and charge the CM/GC for the Work. If it is determined the complaint is not the responsibility of the CM/GC, the CM/GC shall be promptly paid for the cost of the corrective Work; provided that the Owner must approve such changes in writing prior to being incurred (unless safety requires an immediate remedy, in which case the CM/GC shall immediately proceed with the corrective Work). The CM/GC shall give notice in writing to the Owner when corrections have been completed. 6.6,3.3 Inspection. An inspection shall be conducted by the Owner or its representative(s) near the completion of the of the two-year general warranty period to identify any issues that must be resolved by the CM/GC. Expiration of such two (2) year warranty period shall not affect the CM/GC’s continued liability under an implied warranty of merchantability and fitness or as otherwise provided by Article 6.6.1. [Remainder of Page Intentionally Left Blank] Section 7 Contract Forms Forms – 1 Forms SECTION 7 – CONTRACT FORMS FORMS INCLUDED: Performance Bond Payment Bond Certificates of Compliance – Federal and State Work Authorization Programs Non-Collusion Affidavit Final Affidavit Five Year Bond on Roofs and Walls Specimen Certificate of Manufacturer Certificate of Insurance Subcontractor Retainage Release Certificate [Remainder of Page Intentionally Left Blank] Section 7 Contract Forms Forms – 2 Forms PERFORMANCE BOND CITY OF MILTON Bond No. ______________________ Project No. ____________________ KNOW ALL MEN BY THESE PRESENTS: That ___________________________________________________________ as principal (hereinafter referred to (Legal Name and Address of the CM/GC) as ("CM/GC"),and ________________________________________________ as CM/GC’s surety (hereinafter referred to (Legal Title and Address of Surety) as "Surety"), are held and firmly bound unto City of Milton as Obligee (hereinafter referred to as "Owner"), in the amount of _____________________________________________________ (Insert GMP Cost Limitation of GMP) _____________________ DOLLARS ($__________________________), lawful money of the United States of America, for payment of which the CM/GC 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, or is about to enter, into a certain written contract with the Owner dated the ________________ of ___________________, 20___, for construction of a project known as ____________________________________________________________ ( Here insert Name of Project) in accordance with Drawings and Specifications prepared by: _____________________________________, which (Full Name and Title) said contract is incorporated herein by reference in its entirety and made a part hereof, and is hereinafter referred to as the Contract. NOW THEREFORE, THE CONDITIONS OF THIS OBLIGATION are as follows: 1. That, if the CM/GC shall promptly, fully and completely perform and comply with each and all of the terms, provisions, requirements and conditions of said Contract, including and during but not limited to the period of any warranties or guarantees required thereunder, and all modifications, amendments, changes, deletions, additions, and alterations thereto that may hereafter be made, and if the CM/GC and Surety shall indemnify and hold harmless the Owner against and from any and all losses, liability and damages, expenses, injury or loss, claims, judgments, liens, cost and fees of every description, including but not limited to any damages for delay, which the Owner may incur, sustain or suffer by reason of the failure or default on the part of the CM/GC in the performance of any and all of the terms, provisions, and requirements of the Contract, including but not limited to all modifications, amendments, changes, deletions, additions, and alterations thereto, and any warranties or guarantees required thereunder, or by reason of any wrongdoing, including but not limited to patent infringement, misconduct, want of care or skill, default or failure of performance on the part of said CM/GC, 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. 2. That in the event of a failure of performance of the Contract by the CM/GC, which shall include, but not be limited to, any breach or default of the Contract: a. The Surety shall commence performance its obligations and undertakings under this Bond no later than thirty (30) days after written notice from the Owner to the Surety; and b. The means, method or procedure by which the Surety undertakes to perform its obligations under this Bond shall be subject to the advance written approval of the Owner. 3. It is expressly agreed by the CM/GC and the Surety that the Owner, if he desires to do so, is 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. The said Surety to this bond, for value received, hereby stipulates and agrees that no change(s), omission(s), extension(s) of time, alteration(s) or addition(s) 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 the Owner’s right to do Work, pursuant to the Contract (including but not limited to Articles 1.3.8, 1.7.8, 3.4.2, 3.6.2, 5.3.2 or 6.6.1.3), or advance payments or deferred payments in or about the Contract (collectively referred to as “Changes to the Contract”) Section 7 Contract Forms Forms – 3 Forms shall in any way affect its obligation on this bond, and Surety does hereby waive notice of any such change(s), extension(s) of time, alteration(s) or addition(s) to the terms of the Contract or to the Work or to the Specifications or Drawings, Owner’s decision to exercise its right to do Work, and advance or deferred payments on or about the Contract. In addition, the Surety to this bond, for value received, hereby agrees to the provisions of Article 1.5.1, including Paragraph 1.5.1.3 for increases in the penal amount of this bond, and waives notice from the Owner of any such changes. 5. Both the CM/GC and Surety agree that, pursuant to Article 5.3.4 of the Contract, the Owner, after fourteen (14) calendar days’ written notice to the CM/GC, may terminate the Contract if the CM/GC abandons the Project without affecting the Surety’s obligation on this bond. 6. 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 7. Further, this bond shall be the Performance Bond furnished under O.C.G.A. §§ 36-91-40, 36-91-70 and shall be subject to increase in the penal amount of the bond pursuant to such statutes and Article 1.5.1 of the Contract. 8. The Parties further expressly agree that any action on this Bond may be brought within the time allowed by Georgia law for suit on contracts under seal. [SIGNATURES ON FOLLOWING PAGE] Section 7 Contract Forms Forms – 4 Forms IN WITNESS WHEREOF, the CM/GC and Contractor’s Surety have hereunto affixed their corporate seals and caused this obligation to be signed by their duly authorized officers or attorneys-in-fact, this day of ________, 2012. CM/GC (“Principal”): ___________________________ By: __________________________ (signature) __________________________ (print) Attest: Title: ___________________________ (SEAL) (*) _____________________ (signature) _____________________ (print) Title: ________________ Date:_________________ SURETY: _________________________ By: __________________________ (signature) __________________________ (print) Attest: Title: __________________________ (SEAL) (*)(*) _____________________ (signature) _____________________ (print) Title: ________________ Date:_________________ (ATTACH SURETY’S POWER OF ATTORNEY) (*) 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.” Section 7 Contract Forms Forms – 5 Forms PAYMENT BOND CITY OF MILTON Bond No. ______________________ Project No. ____________________ KNOW ALL MEN BY THESE PRESENTS: That____________________________________________________________ as Principal (hereinafter referred to as the (Legal Title and Address of the CM/GC) "Principal") and ___________________________________________________________ as Surety (hereinafter referred to as “Surety”, ( Legal Name and Address of the Surety) are held and firmly bound unto City of Milton as Obligee (hereinafter referred to as "Owner") for the use and benefit of “Claimant,” as hereinafter defined, in the amount of: __________________________________________________________ DOLLARS ($__________________________) (Insert GMP Cost Limitation of GMP) lawful money of the United States of America, for the payment of which the 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, or is about to enter, into a certain contract with Owner dated ___________________ for the construction of a project known as ___________________________________________________________(hereinafter referred to as the “Work”) in accordance (Insert Name of Work) with the Drawings and Specifications prepared by: _________________________________________________, which contract is incorporated herein (Here insert Full Name and Title) by reference in its entirety and made a part hereof, and is hereinafter referred to as the Contract. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that if the Principal shall promptly make payment to any Claimant, as hereinafter defined, for all labor, services, and materials supplied, used or reasonably required in the performance of the Work provided for in said Contract, then this obligation shall be 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(s), extension(s) of time, alteration(s) or addition(s) 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 the Owner’s right to do Work, pursuant to the Contract (including but not limited to Articles 1.3.8,1.7.8, 3.4.2, 3.6.2 5.3.2 or 6.6.1.3) , shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change(s), extension(s) of time, alteration(s) or addition(s) 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 Article 1.5.1, including Paragraph 1.5.1.3, for increases in the penal amount of this bond and waives notice from the Owner of any such changes. (2) A ”Claimant” is defined as any Subcontractor, person, Party, partnership, corporation or other entity supplying labor, services, materials, machinery, or equipment used or reasonably required for use in the prosecution of the Work provided for in said Contract, without regard to whether such labor, services, or materials were sold, leased, or rented, and without regard to whether such Claimant is or is not in privity of the Contract with the Principal or any Subcontractor performing Work on the Project. (3) It is expressly agreed by the Principal and the Surety that the Owner, if he desires to do so, is 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) Both the Principal and Surety agree that, pursuant to Article 5.3.4 of the Contract, the Owner, after fourteen (14) calendar days’ written notice to the Principal, may terminate the Contract if the Principal abandons the Project without affecting the Surety’s obligation on this bond. (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 Section 7 Contract Forms Forms – 6 Forms CITY STATE ZIP CODE TELEPHONE (6) Further, this bond shall be the Payment Bond furnished under O.C.G.A. §§ 36-91-40, 36-91-90 et seq. and shall be subject to increase in the penal amount of the bond pursuant to such statutes and Article 1.5.1 of the Contract. (7) In the event of any claim made by the Claimant against the City, or the filing of a Lien against the property of the City affected by the Contract, the Contractor’s Surety shall either settle or resolve the Claim and shall remove any such Lien by bond or otherwise as provided in the Contract. (8) The Parties further expressly agree that any action on this Bond may be brought within the time allowed by Georgia law for suit on contracts under seal. IN WITNESS WHEREOF, the Principal and Surety have hereunto affixed their corporate seals and caused this obligation to be signed by their duly authorized officers on this day of __________, 2012. PRINCIPAL: ______________________________ By: __________________________ (signature) __________________________ (printed) Title: __________________________ (SEAL) (*) Attest: ______________________ (signature) ______________________ (printed) Title: _________________ Date:__________________ SURETY: _________________________ By: _________________________ (signature) _________________________ (printed) Title: (SEAL) (*)(*) Attest: _____________________ (signature) _____________________ (printed) Title: ________________ Section 7 Contract Forms Forms – 7 Forms Date:_________________ (ATTACH SURETY’S POWER OF ATTORNEY) (*) 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.” Section 7 Contract Forms Forms – 8 Forms CONTRACTOR AFFIDVIT AND CERTIFICATE OF COMPLIANCE GEORGIA SECURITY AND IMMIGRATION CERTIFICATION (FEDERAL AND STATE WORK AUTHORIZATION PROGRAMS) STATE OF GEORGIA; COUNTY OF ______________: PROJECT NO. ______________ PROJECT NAME: _____________________________________ CONTRACTOR AFFIDAVIT, CERTIFICATE AND AGREEMENT COMES NOW before me, the undersigned officer duly authorized to administer oaths, the undersigned contractor (“Contractor”), who, after being duly sworn, states, warrants, agrees and certifies as follows to City of Milton, Georgia (“Owner”): By executing this affidavit, the undersigned Contractor verifies its compliance with O.C.G.A. § 13-10-91, stating affirmatively that the individual, firm or corporation which is engaged in the physical performance of services on behalf of City of Milton, Georgia has registered with, is authorized to use and uses the federal work authorization program commonly known as E-Verify, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A. § 13-10-91. Furthermore, the undersigned Contractor will continue to use the federal work authorization program throughout the contract period and the undersigned Contractor will contract for the physical performance of services in satisfaction of such contract only with subcontractors who present an affidavit to the Contractor with the information required by O.C.G.A. § 13-10-91(b). Contractor hereby attests that its federal work authorization user identification number and date of authorization are as follows: _________________________________ Federal Work Authorization User Identification Number _________________________________ Date of Authorization _________________________________ Name of Contractor _________________________________ Name of Project _________________________________ Name of Public Employer FURTHER AFFIANT SAYETH NOT. I hereby declare under penalty of perjury that the foregoing is true and correct. Executed on ______, ___, 201__ in _____(city), ______(state). _________________________________ Contractor _________________________________ Signature of Authorized Officer or Agent _______________________________ Printed Name and Title of Authorized Officer or Agent SUBSCRIBED AND SWORN BEFORE ME ON THIS THE ______ DAY OF ______________,201__. _________________________________ NOTARY PUBLIC My Commission Expires: _________________________________ Section 7 Contract Forms Forms – 9 Forms SUBCONTRACTOR AFFIDAVIT AND CERTIFICATE OF COMPLIANCE GEORGIA SECURITY AND IMMIGRATION CERTIFICATION (FEDERAL AND STATE WORK AUTHORIZATION PROGRAMS) STATE OF GEORGIA; COUNTY OF ______________: PROJECT NO. ______________ PROJECT NAME: _____________________________________ SUBCONTRACTOR AFFIDAVIT, CERTIFICATE AND AGREEMENT COMES NOW before me, the undersigned officer duly authorized to administer oaths, the undersigned subcontractor, supplier or consultant (“Subcontractor”), who, after being duly sworn, states, warrants, agrees and certifies as follows to City of Milton, Georgia (“Owner”): 1. By executing this affidavit, the undersigned Subcontractor verifies its compliance with O.C.G.A. § 13-10-91, stating affirmatively that the individual, firm or corporation which is engaged in the physical performance of services under a contract with ____________________ (CM/GC) on behalf of City of Milton, Georgia has registered with, is authorized to use and uses the federal work authorization program commonly known as E-Verify, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A. § 13-10- 91. Furthermore, the undersigned Subcontractor will continue to use the federal work authorization program throughout the contract period and the undersigned Subcontractor will contract for the physical performance of services in satisfaction of such contract only with sub-subcontractors who present an affidavit to the Subcontractor with the information required by O.C.G.A. § 13-10-91(b). Additionally, the undersigned Subcontractor will forward notice of the receipt of an affidavit from a sub-subcontractor to the CM/GC within five (5) business days of receipt. If the undersigned Subcontractor receives notice that a sub-subcontractor has received an affidavit from any other contracted sub-subcontractor, the undersigned Subcontractor must forward, within five (5) business days of receipt, a copy of the notice to the CM/GC. Subcontractor hereby attests that its federal work authorization user identification number and date of authorization are as follows: 2. Subcontractor verifies and warrants it employs the following employees as of this date: Initials Number of Employees __________ Over 500 employees __________ 100 to 499 employees __________ 1 to 99 employees [SIGNATURES ON FOLLOWING PAGE] Section 7 Contract Forms Forms – 10 Forms _________________________________ Federal Work Authorization User Identification Number _________________________________ Date of Authorization _________________________________ Name of Subcontractor _________________________________ Name of Project _________________________________ Name of Public Employer FURTHER AFFIANT SAYETH NOT. I hereby declare under penalty of perjury that the foregoing is true and correct. Executed on ______, ___, 201__ in _____(city), ______(state). _________________________________ Signature of Authorized Officer or Agent _______________________________ Printed Name and Title of Authorized Officer or Agent SUBSCRIBED AND SWORN BEFORE ME ON THIS THE ______ DAY OF ______________,201__. _________________________________ NOTARY PUBLIC My Commission Expires: _________________________________ Section 7 Contract Forms Forms - 11 Forms NON-COLLUSION AFFIDAVIT STATE OF GEORGIA; COUNTY OF _______________________________: _____________________________________, being first duly sworn, deposes and says that: (1) He is ___________________________(Owner, Partner, Officer, Representative, or Agent) of _________________________ (the “_______________” (Proposer/Bidder)) that has submitted the attached ________ (Proposal/Bid); (2) He is fully informed respecting the preparation and contents of the attached __________ (Proposal/Bid) and of all pertinent circumstances respecting such __________ (Proposal/Bid); (3) Such __________ (Proposal/Bid) is genuine and is not a collusive of sham __________ (Proposal/Bid); (4) Neither the said _________ (Proposer/Bidder) nor any of its officers, partners, owners, agents, representatives, employees, or parties in interest, included in this affidavit, has in any way colluded, conspired, connived, or agreed, directly or indirectly, with any other _________ (Proposer/Bidder), firm or person to submit a collusive or sham __________ (Proposal/Bid) in connection with the Contract for which the attached _________ (Proposal/Bid) has been submitted to or refrain from proposing in connection with such Contract, or has in any collusion or communication or conference with any other _______________ (Proposer/Bidder), firm or person to fix the price or prices in the attached ___________ (Proposal/Bid) or of any other __________ (Proposer/Bidder), or to secure through any collusion, conspiracy, connivance, or unlawful agreement any advantage against City of Milton or any person interested in the proposed Contract; and, (5) The price or prices quoted in the attached __________ (Proposal/Bid) are fair and proper and are not tainted by any collusion, conspiracy, connivance, or unlawful agreement on the part of the ___________ (Proposer/Bidder) or any of its agents, representatives, owners, employees, or parties in interest, included in this affidavit. (6) __________ (Proposer/Bidder) has not directly or indirectly violated any law, ordinance or regulation related to the ____________ (Proposal/Bid). _______________________________________ Signature of Authorized Officer or Agent _______________________________________ Printed Name and Title of Authorized Officer or Agent SUBSCRIBED AND SWORN BEFORE ME ON THIS THE _______ DAY OF _________, 2012. _____________________________ Notary Public [NOTARY SEAL] My Commission Expires: ________________________ Section 7 Contract Forms Forms - 12 Forms FINAL AFFIDAVIT STATE OF GEORGIA; COUNTY OF _______________________________: FROM: ____________________________________ CM/GC TO: __________________________________ Owner Re: Contract entered into the _____ day of ______________, 20____, between the above-mentioned parties for the construction of Project No. ______________________ located at ______________________________ KNOW ALL MEN BY THESE PRESENTS: 1. The undersigned hereby certifies that all Work required under the above Contract has been performed in accordance with the terms thereof, that all Suppliers of materials, equipment and service, materialmen, Subcontractors, Trade Contractors, mechanics, and laborers employed by CM/GC or any of its Subcontractors in connection with the construction of the Project for City of Milton have been paid and satisfied in full as of __________________ _____, 20___, and that there are no outstanding obligations or claims of any character [including but not limited to disputed claims or any claims to which the CM/GC has or will assert any defense] arising out of the performance of the Contract, or the payment of which City of Milton might be liable, or subject to, in relation to the above-named Project in any lawful proceeding, that have not been paid and satisfied. 2. The undersigned further certifies that to the best of his knowledge and belief there are no unsatisfied claims for damages resulting from injury or death to any employees, Trade Contractors, or the public at large arising out of the performance of the Contract, or any suits or claims for any other damage of any kind, nature, or description that might constitute a lien upon the property of the Owner. 3. The undersigned makes this affidavit for the purpose of receiving final payment in full settlement of all claims against the Owner arising under or by virtue of the Contract, and acceptance of such payment is acknowledged as a release of the Owner from any and all claims arising under or by virtue of the Contract. This ______ day of ____________________________, 20___________. ___________________________________ Signature ___________________________________________ Title ___________________________________________ Firm Personally appeared before me this _________ day of __________, 20___, the undersigned authority, _______________________________________ , who is known (NAME OF PERSON SIGNING AFFIDAVIT) to me to be an official of the firm of ________________________________ who, after being duly sworn, states and deposes on his ( NAME OF CM/GC) oath that he had read the above statement and that to the best of his knowledge and belief the same is an exact, true and correct statement. _________________________________________ Notary Public [NOTARY SEAL] My commission expires ____________________ Section 7 Contract Forms Forms - 13 Forms FIVE YEAR BOND ON ROOFS AND WALLS STATE OF GEORGIA; COUNTY OF ______________________________: Firmly Bound. Know all men by these presents, that we ________________________ (CM/GC) as Principal, and _____________ __________ as Surety, are held and firmly bound unto the ____________________________________________________ (Owner) in the sum of____________ Dollars ($______________) for the payment of which well and truly to be made and done, we bind ourselves, our executors and administrators, our successors and assign, jointly and severally, by these presents. Condition of Obligation. The condition of the above obligation is such that WHEREAS CM/GC has entered into a Contract with Owner dated ________________________ for construction of Project No.________________. Warranty. WHEREAS, the said CM/GC warrants with respect to the said Work that for a period of five years from the date of the execution of the Certificate of Final Completion of the Design Professional, or the date Owner occupies the Project, whichever is earlier, the roofs of the building (or buildings) and roofs of passages, including but not limited to the following: the roof envelope (including but not limited to the roof decking); deck sheathing; material used as a roof base or insulation over which 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; or roof expansion joints shall be absolutely watertight and free from all leaks. At no expense to the Owner, the CM/GC will make repairs to any defects that may develop in the Work including but not limited to the following: 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 construction Specifications. The CM/GC also warrants that for the same five-year period the walls of the building (or buildings) and building envelope, including but not limited to the following: 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 perimeters, window perimeters, vents and pipe openings) shall be absolutely watertight and free from all leaks, seepage or dampness, and that he shall, at no expense to the Owner, make repairs to 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 construction Specifications, provided, however, that the following are excluded from the warranty: (a) Defects or failures resulting from abuse by the Owner, upon presentation of competent evidence of same by the CM/GC. (b) Defects in design for which the said CM/GC shall produce competent evidence of having had provided clear written notice in writing to the Owner prior to commencing installation of the Work, except, however, that the CM/GC shall not be responsible, insofar as liability under this bond is concerned, for bringing to the attention of the Owner defects in design involving failure of only the following three structural elements of which the CM/GC was unaware: (1) Structural Frame, (2) Load bearing walls, and (3) Foundations; nor shall the CM/GC be responsible for correction of leaks resulting from said failure. (c) Damage caused by fire, tornado, hail, hurricane, acts of God, wars, riots, or civil commotion upon presentation of competent evidence of same by the CM/GC. (d) The CM/GC is not an insurer; nor is he a guarantor of the design. Any other provisions of this bond to the contrary notwithstanding, the CM/GC shall not be required to remedy any errors or omissions of design. Leaks or Defect. WHEREAS the said CM/GC agrees that should any leaks or defects occur in the roof envelope or wall envelope of the said (Name and Number of Project), the said CM/GC will promptly remedy the said leaks or defects and pay for any damage to other Work of said Project resulting therefrom, except, however, that when this instrument is executed by a Trade Contractor, this Contract, shall, insofar as the Trade Contractor is concerned, extend only to the Work executed by said Trade Contractor. Notice to Surety. If the CM/GC shall have been given notice to remedy leaks or defects pursuant to the Contract Documents and has been declared in default by the Owner and the Owner has terminated the CM/GC’s right to complete the remedy, the Surety shall be notified in writing and shall promptly perform this bond agreement in accordance with its terms and conditions. If Surety chooses to investigate, Owner shall cooperate with the Surety in its investigation and shall make all public Project records available for inspection by Surety in accordance with Georgia’s Open Records Act. It shall be the duty of the Surety to give an unequivocal notice in writing to the Owner, within twenty-five (25) days after receipt of such notice, of the Surety's proposed remedy, to be approved by Owner in its sole discretion. In said notice of election, the Surety shall indicate the date on which the remedy or performance will commence, and it shall Section 7 Contract Forms Forms - 14 Forms then be the duty of the Surety to give prompt notice in writing to the Owner immediately upon completion of the remedy and/or correction of the leaks or defects. The Surety shall not assert its Principal (the “CM/GC”) as justification for its failure to give notice of election or for its failure to promptly remedy the leaks or defects. Full Force and Effect. NOW, THEREFORE, the condition of this obligation is such that, if the CM/GC shall in all things promptly and faithfully perform and comply with the terms and conditions hereinbefore set forth, then this obligation shall be null and void; otherwise, it shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed this day of , 20 . WITNESS PRINCIPAL BY (SEAL) TITLE WITNESS SURETY BY (SEAL) TITLE (*) Attach Power of Attorney Instructions for execution: (a) If the firm is a partnership, all members of the partnership must execute. (b) If the firm is a corporation, the president must sign, the secretary must attest, and the seal of the corporation must be affixed. (c) If the firm operates as a sole proprietorship, the proprietor must execute. Section 7 Contract Forms Forms - 15 Forms SPECIMEN CERTIFICATE OF MANUFACTURER INSTRUCTIONS FOR PREPARATION OF CERTIFICATE: To be acceptable, the certificate must be prepared in the form indicated by this specimen on the official letterhead of the manufacturer. No portions of the certificate may be omitted. Attached is a copy of the Contract provision under which the certificate is required. The Owner needs only one copy of the certificate. If equipment of a manufacturer is not installed in strict compliance with the recommendations of the manufacturer or if in the design of the Work the equipment is not applied in strict compliance with the recommendations of the manufacturer, a letter from the manufacturer should be forwarded to the CM/GC [with copies to the Design Professional and the Owner] setting forth a list of the deviations from the recommendations of the manufacturer and stating what remains to be done in order to bring the Work into strict compliance with the recommendations of the manufacturer. Prior to calling upon the representative of the manufacturer for performance of the services necessary to enable him to execute a certificate in accordance with this specimen, it is the obligation of the CM/GC to have installed the Work in strict compliance with the recommendations of the manufacturer [See Article 2.2.6 of the Contract], and it is likewise the obligation of the CM/GC to have put the equipment in good operating condition in absolute and final readiness for the "start-up,” "testing,” and "placing into operation", as defined herein below, by the representative of the manufacturer. Date:_______________________________ To: _____________________________________________(OWNER) Re: Certificate of JOHN DOE CORPORATION that equipment or components furnished by it has [or have, as the case may be] been installed in strict compliance with its recommendations and is [or are, as the case may be] operating properly at PROJECT NO._________________ 1. We certify through our duly authorized and acting agent that the following item [or items, as the case may be] furnished by us to the Project named in the caption was [or were, as the case may be] started up, tested, and placed in operation by our authorized field representative on [enter the date on which the field representative performed the start-up, test, and placing into operation] and is [or are, as the case may be] operating properly: [List the item or items furnished to the job. Show catalogue number or numbers.] 2. We certify further that the aforesaid equipment was installed in strict compliance with our recommendations as published by us in the following document [or documents, as the case may be]: [Insert the date, name or other positive means of identifying the exact document or documents in which the recommendations for installation and use of the item or items are published.] (*) 3. A copy of the aforesaid document(s) is (are) attached hereto. This __________________ day of________________, 20____ JOHN DOE CORPORATION By:_________________________________ Authorized Representative (*) The date must be shown DEFINITIONS: l. "Start-up" is defined as putting the equipment into action. 2. "Testing" is defined as performing such testing as is stipulated in the Contract Documents to be performed. 3. "Placing into operation" is defined as operating the equipment for a sufficient period of time for the determination to be made that it is performing properly. Section 7 Exhibits Forms - 16 Forms SUBCONTRACTOR RETAINAGE RELEASE CERTIFICATE (To be Originated by Subcontractor) TO: Owner ____________________________ ____________________________ RE: Project Name and Number: : Certificate Regarding Subcontractor's Completed Work and Retainage Release 1. This is to certify that our Work is one hundred percent complete for our subcontract number __________________________________. Our retainage is due in accordance with the Contract Documents for our scope of Work included the . The total amount of retainage now due is $ . 2. The Subcontractor hereby certifies that all Work required under the above contract has been performed in accordance with the terms thereof, that all materialmen, subcontractors, mechanics, and laborers have been paid and satisfied in full, and that there are no outstanding claims of any character (including but not limited to disputed claims or any claims to which the Subcontractor has or will assert any defense) arising out of the performance of the contract which have not been paid and satisfied in full except as listed hereinbelow, which exceptions apply only to the release in Paragraph 5, below: [Enter: "None" or List or Make Reference & Attach Exhibit A.] 3. The Subcontractor further certifies that to the best of his knowledge and belief there are no unsatisfied claims for damages resulting from injury or death to any employees, subcontractors, or the public at large arising out of the performance of the contract, or any suits or claims for any other damage of any kind, nature, or description which might constitute a claim or lien upon the property of the Owner. 4. The Subcontractor has received final payment in full settlement of all claims against the Owner arising under or by virtue the contract, and acceptance of such payment is acknowledged as a release of the Owner from any and all claims arising under or by virtue of the contract. This release includes any claims set forth or excepted in Paragraph 2 above. 5. [Strike out if not applicable] The Subcontractor has received final payment in full settlement of all claims against the CM/GC arising under or by virtue the contract, and acceptance of such payment is acknowledged as a release of the CM/GC from any and all claims arising under or by virtue of the contract except as set forth in Paragraph 2 above. 6. Payments pursuant to this certificate shall in no way diminish, change, alter or affect the rights of the Owner under the Contract Documents. SUBCONTRACTOR: By: Date: CM/GC: By: Date: DESIGN PROFESSIONAL: By: Date: NOTICE: OWNER MUST RECEIVE A COPY WITH ALL ORIGINAL SIGNATURES. Section 7 Exhibits EXHIBITS Exhibit A Owner’s Existing Documents Exhibit B [Intentionally Omitted] Exhibit C Budget Format Exhibit D Monthly Report Format Exhibit E CM/GC’s Fee Proposal Exhibit F Preliminary Outline Schedule Exhibit G Specimen Component Change Order Exhibit H Specimen GMP Change Order Exhibit I Specimen Change Order Exhibit J Wage Rates and Labor Cost Exhibit K Application for Payment Exhibit L Final Cost Certification Exhibit M Certificate of Material Completion Exhibit N Certificate of Final Completion Exhibit O Project Documents Exhibit P Key Personnel Exhibit A A-1 Exhibit A EXHIBIT A OWNER’S EXISTING DOCUMENTS i. Construction Manager At Risk Request for Proposals ii. Construction Manager At Risk’s Proposal iii. Design Professional Agreement (“Architectural Contract”) Exhibit B B-1 Exhibit B EXHIBIT B [INTENTIONALLY OMITTED] Exhibit C Budget Format C-1 Exhibit C EXHIBIT C BUDGET FORMAT The purpose of providing the CM/GC a format for the Project budget is to allow easy comparison from one phase of design and construction to the next as well as easy comparison of estimates from others. The budget format shall conform to the CSI format and shall have as much detail as the information and time allows. GMP Division Name Units Unit Cost Cost 01 General Requirements 02 Site Work 03 Concrete 04 Masonry 05 Metals 06 Woods & Plastics 07 Thermal / Moisture Prot. 08 Doors & Windows 09 Finishes 10 Specialties 11 Equipment 12 Furnishings 13 Special Construction 14 Conveying System 15 Mechanical 16 Electrical 17 Security Electronics & Communications General Conditions Construction Contingency Fee Design Contingency Total Construction Owner’s Disbursements Subtotal Total Project Exhibit D Monthly Report Format D-1 Exhibit D EXHIBIT D MONTHLY REPORT FORMAT The monthly report shall consist of the following items: 1. Executive Summary 2. Monthly and Year to Date Budget Report 3. Contract Awards a. Contract Awards to Date b. Award recommendations made c. Contracts closed out d. Buyout Status 4. Critical Information and Approvals Required 5. Logs a. Request for Information b. Submittal Log c. Subcontractor Insurance Log d. Approval Letter Log e. Non-conformance Log 6. Safety Report 7. Schedule Status 8. Permits and Inspections 9. Job Photographs 10. Quality Report EXHIBIT E CM/GC Fee Proposal Form Exhibit E CM/GC Fee Proposal E-2 CM/GC FEE PROPOSAL (Submit in a Sealed Envelope with Project Cost Matrix) 1. CM/GC’S FEE: Basis of Fee. The CM/GC’s Fee is the amount, established by and agreed to by both parties, which is the full amount of compensation due to the CM/GC as gross profit, and for any and all expenses of the Project not included and identified as a Cost of the Work, provided that the CM/GC performs all the requirements of the Contract Documents within the time limits established. (See Article 4.1.1 of the General Requirements.) Preconstruction Services Fee The preconstruction services fee is included for reference only. Preconstruction services shall be governed by that Preconstruction Services Agreement between the parties dated the 30th day of April, 2015. Service Unit Total Preconstruction Fee Lump Sum $30,000 General Conditions The City shall pay to the CM a fixed, lump sum fee for General Conditions associated with this project. The CM shall provide an itemized breakdown of all services and fees included in the General Conditions on a separate sheet(s). Service Unit Total General Conditions Lump Sum $378,935 Construction Services Fee The City shall pay to the CM a percentage fee based on the agreed upon Guaranteed Maximum Price (GMP). Service Unit Fee Percentage Construction Services Fee % 4.25 Exhibit F Schedule F-1 Exhibit F EXHIBIT F SCHEDULE [Attach Design Professional’s Preliminary Design and Construction Schedule] Exhibit G Component Change Order G-1 Exhibit G EXHIBIT G COMPONENT CHANGE ORDER CM/GC PROPOSED COMPONENT CHANGE ORDER NO. _________________ Project No. _______________________________ TO: Owner This proposed Component Change Order is submitted pursuant to Section 3 Part 2 of the Construction Management At Risk Agreement dated , 20 , the terms of which are incorporated herein by reference. Having carefully examined the Component Construction Documents prepared by (Design Professional) and approved by Owner on , 20 , listed on attached Schedule A (Construction Documents), as well as the Site and conditions affecting the Work, the undersigned submits this proposed Component Change Order under Section 3 Part 2 of the Construction Management At Risk Agreement to furnish all service, labor and materials called for by the Construction Documents for the entire Work related to this Component in accordance with the aforesaid Construction Documents and the Construction Management Contract. Description of Component: __________________________________________________________________________ ________________________________________________________________________________________________ A. The Change Order Sum comprises the following amounts: 1. Construction Sum due Trade Contractors. Subcontractors and and Suppliers $ 2. CM/GC's Estimated Cost for Work or Material Supplied by CM/GC $ 3. CM/GC's component contingency % 4. CM/GC's proportional Fee % B. The Construction Budget is attached as Schedule B. C. The Component Construction Progress Schedule is attached as Schedule C. D. The undersigned guarantees the final completion of the Component on or before , 20 . E. The undersigned agrees that this Component Change Order, together with the Notice of Acceptance, upon approval of the Owner, shall constitute a Change Order to the Contract Documents for the Project. F. The CM/GC has visited the Site, familiarized itself with the conditions under which the Work described in the Contract Documents is to be performed, and correlated its observations with the requirements of the Contract Documents, including the requirements set forth in Schedule A. Exhibit G Component Change Order G-2 Exhibit G CM/GC By: _____________________________ DATED: , 20 . RECOMMENDED FOR OWNER’S ACCEPTANCE: Design Professional By: _________________________ Exhibit G Component Change Order G-3 Exhibit G NOTICE OF ACCEPTANCE OF COMPONENT CHANGE ORDER NO. __________ for PROJECT NO. ___________________________ TO: ___________________________________ (CM/GC) ___________________________________ ___________________________________ Notice is hereby given to CM/GC that the Owner hereby ACCEPTS the foregoing Component Change Order. DATED: , 20 . Owner By: ________________________________ Exhibit H GMP Change Order H-1 Exhibit H EXHIBIT H GUARANTEED MAXIMUM PRICE CHANGE ORDER for PROJECT NO. ______ PROJECT NAME AND DESCRIPTION TO: Owner In accordance with Section 3 Part 3 of the Construction Management At Risk Agreement dated , 20 , Project No. ____, _________________________________________________________________, the terms of which are incorporated herein by reference, the undersigned offers to provide all services, labor and material to perform in accordance with the Contract Documents the construction of the Project described in the Component Change Orders, entered into prior to the date of this proposal, and the Construction Documents prepared by ________________________________ and Construction Documents to be hereafter prepared by the Design Professional in accordance with Schedule A and the Construction Management At Risk Agreement, for a Guaranteed Maximum Price. The undersigned guarantees the Material Completion of the Work on or before the Material Completion Date and Final Completion of the Work on or before the thirtieth day following the Material Completion Date. The Guaranteed Maximum Price comprises the following components: 1. Estimated Cost of the Work $ 2. CM/GC's Contingency $ 3. CM/GC's Fee $ 4. CM/GC's Maximum Construction Overhead Costs $ TOTAL (Guaranteed Maximum Price) $ 5. This proposed GMP Change Order is based on the Component Change Orders, Component Construction Documents entered into prior to the date of this proposal, and the Construction Documents specified in Exhibit A and to be hereafter prepared by the Design Professional in accordance with the assumptions stated in Schedule A. 6. The Guaranteed Maximum Price includes the costs listed in Schedule B, and the Construction Contingency, the CM/GC's Fee, and the Maximum Construction Overhead Costs, as set forth on Schedule B. 7. The Guaranteed Maximum Price does not include the trades, Work categories, or other items listed, if applicable, in Schedule C. 8. The Construction Documents Schedule is attached as Schedule D. 9. The Submittal Approval Schedule is attached as Schedule E. 10. The Component Change Order Schedule is attached as Schedule F. 11. The Construction Progress Schedule is attached as Schedule G. 12. The Construction Budget is attached as Schedule H. 13. The concurrence of the Design Professional to Schedules D, E, F and G is attached as Schedule I. 14. Each of Schedules A through I are part of this Proposed GMP Change Order and are incorporated herein by reference. 15. The proposed Material Completion Date is: _________________________________. Exhibit H GMP Change Order H-2 Exhibit H 16. This offer is submitted as the proposed GMP Change Order pursuant to Section 3 Part 3 of the General Requirements of the Construction Management Contract. 17. The undersigned agrees that this proposed GMP Change Order, together with the Notice of Acceptance, upon approval of the Owner, shall constitute a Change Order to the Contract Documents for the Project. 18. The CM/GC has visited the Site, familiarized itself with the conditions under which the Work described in the Contract Documents is to be performed, and correlated its observations with the requirements of the Contract Documents, including the requirements set forth in Schedule A. CM/GC By: _____________________________ DATED: , 20 . RECOMMENDED FOR OWNER’S ACCEPTANCE: Design Professional By: _________________________ Exhibit H GMP Change Order H-3 Exhibit H NOTICE OF ACCEPTANCE OF GMP CHANGE ORDER for PROJECT NO. _________ TO: ___________________________________ (CM/GC) ___________________________________ ___________________________________ Notice is hereby given to CM/GC that the Owner hereby ACCEPTS the foregoing GMP Change Order. DATED: , 20 . Owner By: ________________________________ Exhibit I Specimen Change Orders I-1 Exhibit I EXHIBIT I CHANGE ORDER FORMAT (Lump Sum) CHANGE ORDER No. _______ Project Name: ____________________________ Project Number: __________________________ ______________________________________, Owner 1. Submission of this Change Order for consideration was authorized by letter from the Owner, dated , 20__, Incumbrance Record No. . 2. The changes hereinafter described are applicable to the Contract for the construction of the above-referenced Project and amend the Contract Documents. 3. Description of Change: 4. This Change Order is deemed necessary and originated with the (Design Professional) (Owner) (CM/GC). (Indicate applicable entity.) 5. This Change Order is necessary to: 6. The amount of the Change Order was determined by: 7. A memorandum is attached showing cost breakdown of labor and materials by unit and quantities as prepared by the CM/GC and checked by the Owner. NOTE TO DESIGN PROFESSIONAL: Please prepare each Change Order for any lump sum payment in the form and wording given below, deleting inapplicable wording and adding such explanations as may be necessary. The wording in Paragraph 11 may not be changed or altered in any way by either the Design Professional or the Contractor. Send four copies, signed by you and the Contractor, to the Owner. Do not forward a Change Order unless it is accompanied by a breakdown which has been certified by the CM/GC . Note to Design Professional: Please leave the Change Order number blank. The Owner will assign a number. Choose one: a. Estimate and acceptance in lump sum. b. Unit Prices stated in contract or subsequently agreed upon. c. Cost and percentage as described in general conditions. Note to Design Professional: No Change Order should be forwarded unless you have been furnished with a letter from the Owner authorizing same. Note to Design Professional: Be sure to give a complete statement describing the changes in the Work, including the Specifications. If Drawings are necessary, refer to them by date, etc., and state they are made a part of the Change Order. Copy of Drawings should be attached to the Change Order. Note to Design Professional: Give a complete description of conditions which necessitate the change. Exhibit I Specimen Change Orders I-2 Exhibit I 8. We have verified the quantity and quality of all materials shown on the memorandum. We have verified that all prices are reasonable and do not exceed current costs for like services or materials, and we have verified that the quality of the materials meets the requirements of the Contract Documents. 9. The CM/GC shall be allowed additional calendar days for completion. The Material Completion Date is: __________________ and the Final Completion Date is the thirtieth (30th) calendar day thereafter. 10. The Guaranteed Maximum Price shall be (increased) (decreased) by $ _________________ on account of this change. The CM/GC’s Fee shall be increased by $ __________ . The Maximum Amount Allowable for CM/GC’s Overhead Costs and Expenses shall be (increased) (decreased) by $ ____________________ . 11. The payment and extension of time, if any, provided by this Change Order constitutes compensation in full to the CM/GC and its Subcontractors, Suppliers, and Trade Contractors for all costs and markups, directly and indirectly attributable to the changes ordered herein, and for all delays or time related costs thereto and for any acceleration costs for performance of changes within the time stated and to be completed by the Material or Final Completion Date and for any claims related thereto against the Owner and the Design Professional, and design consultants. APPROVED AND AGREED BY CM/GC: By: ______________________________________ RECOMMENDED FOR OWNER'S APPROVED AND AGREED BY OWNER: ACCEPTANCE: (DESIGN PROFESSIONAL) Owner By: ______________________________________ By: _______________________________________ Date approved by Owner: ______________ Note to Design Professional: Please insert the number of additional Days allowed and the new Material Completion and Occupancy Date, or, if no additional time is allowed, insert “0” for the Days and “No Change” for the date. Note to Design Professional: Please observe that verification of quantities and prices means the Design Professional who signs the Change Order has personal knowledge that the quantities shown in the memorandum referred to under paragraph 7 above are correct, that he has personally satisfied himself that full credit has been extended for any Work or materials deleted or omitted, and that he has conclusively established by such checking or inquiry as may be necessary that the prices and allowances shown in the memorandum comparable with current costs for like services and materials. Note to Design Professional: Please delete inapplicable language in parentheses and enter the dollar amount for this change. Ensure that cost of the Work, percentage markup for profit, and the daily rate of general conditions costs is accurate and included in the amount of an additive change. If a deductive change, the amount is generally cost of the Work only; however, consult with the Owner in significant deductive Change Orders to determine if time or profit should be included in the deducted amount. Exhibit I Specimen Change Orders I-3 Exhibit I CHANGE ORDER FORMAT (Force Account) CHANGE ORDER No. _______ Project Name: ____________________________ Project Number: __________________________ ___________________________________, Owner 1. Submission of this Change Order for consideration was authorized by letter from the Owner, dated , 20__, Incumbrance Record No. . 2. The changes hereinafter described are applicable to the Contract for the construction of the above-referenced Project and amend the Contract Documents. 3. Description of Change: 4. This Change Order is deemed necessary and originated with the (Design Professional) (Owner) (CM/GC). (Indicate applicable entity.) 5. This Change Order is necessary to: 6. The Maximum Allowable Cost of the Change Order was estimated by: NOTE TO DESIGN PROFESSIONAL: Please prepare each Change Order for Force Account or Indeterminate Units in the form and wording given below, deleting inapplicable wording and adding such explanations as may be necessary. The wording in Paragraph 8 may not be changed or altered in any way by either the Design Professional or the Contractor, except for the insertion of the relevant information as indicated. The wording in Paragraph 5 of the Final Cost Amendment may not be changed or altered in any way by either the Design Professional or the Contractor. Send four copies, signed by you and the Contractor, to the Owner. Do not forward a Change Order unless it is accompanied by a breakdown which has been checked by the CM/GC (if applicable). Note to Design Professional: Please leave the Change Order number blank. The Owner will assign a number. Choose one: a. Estimate in lump sum. b. Unit Prices stated in contract or subsequently agreed upon, and an estimated number of units. c. Cost and percentage as described in general conditions. Note to Design Professional:: No Change Order for Force Account or Indeterminate Units should be forwarded unless you have been furnished with a letter from the Owner authorizing same. Note to Design Professional: Be sure to give a complete statement describing the changes in the Work, including the Specifications. If Drawings are necessary, refer to them by date, etc., and state they are made a part of the Change Order. Copy of Drawings should be attached to the Change Order. Note to Design Professional: Give a complete description of conditions which necessitate the change. Exhibit I Specimen Change Orders I-4 Exhibit I 7. A memorandum is attached showing the estimated cost breakdown of labor and materials by unit and quantities as prepared by the CM/GC and checked by the Owner. 8. The Maximum Allowed Cost for this Change Order is $ __________________________, and is established as Incumbrance Record No. _______________ . This Maximum Allowed Cost may be amended by the Owner in the event the Actual Costs are expected to exceed the Maximum Allowed Cost, provided that CM/GC shall give written notice of such fact prior to incurring Actual Costs in excess of ninety (90) percent of the Maximum Allowable Cost. In no event shall Actual Costs be incurred in excess of the Maximum Allowed Cost, as it may be amended. APPROVED AND AGREED BY CM/GC: By: ______________________________________ RECOMMENDED FOR OWNER'S APPROVED AND AGREED BY OWNER: ACCEPTANCE: (DESIGN PROFESSIONAL) Owner By: ______________________________________ By: _______________________________________ Date approved by Owner: ______________ Exhibit I Specimen Change Orders I-5 Exhibit I FINAL COST AMENDMENT TO CHANGE ORDER NO. ___________ (Regarding Force Account) 1. A memorandum is attached showing cost breakdown of labor and materials by unit and quantities as prepared by the CM/GC and checked by the Owner. 2. We have verified the quantity and quality of all materials shown on the memorandum. We have verified that all prices are reasonable and do not exceed current costs for like services or materials, and we have verified that the quality of the materials meets the requirements of the Contract Documents. 3. The CM/GC shall be allowed additional calendar days for completion. The Material Completion Date is: __________________, and the Final Completion Date is the thirtieth (30th) calendar day thereafter. 4. The Guaranteed Maximum Price shall be (increased) (decreased) by $ _________________ on account of this change. The CM/GC’s Fee shall be increased by $ __________ . The Maximum Amount Allowable for CM/GC’s Overhead Costs and Expenses shall be (increased) (decreased) by $ ____________________ . 5. The payment and extension of time, if any, provided by this Change Order constitutes compensation in full to the CM/GC and its Subcontractors, Suppliers, and Trade Contractors for all costs and markups, directly and indirectly attributable to the changes ordered herein, and for all delays or time related costs thereto and for any acceleration costs for performance of changes within the time stated and to be completed by the Material or Final Completion Date and for any Claims related thereto against the Owner and the Design Professional, and design consultants. APPROVED AND AGREED BY CM/GC: By: ______________________________________ RECOMMENDED FOR OWNER'S APPROVED AND AGREED BY OWNER: ACCEPTANCE: (DESIGN PROFESSIONAL) Owner By: ______________________________________ By: _______________________________________ Date approved by Owner: ______________ Note to Design Professional: Please insert the number of additional Days allowed and the new Material Completion and Occupancy Date, or, if no additional time is allowed, insert “0” for Days and “No Change” for the date. Note to Design Professional: Please observe the fact that verification of quantities and prices means the Design Professional who signs the Change Order has personal knowledge that the quantities shown in the memorandum referred to under paragraph 7 of the Change Order for Force Account or Indeterminate Units above are correct, that he has personally satisfied himself that full credit has been extended for any Work or materials deleted or omitted, and that he has conclusively established by such checking or inquiry as may be necessary that the prices and allowances shown in the memorandum are comparable with current costs for like services and materials. Note to Design Professional: Please delete inapplicable language in parentheses and enter the dollar amount for this change. Ensure that cost of the Work, percentage markup for profit, and the daily rate of general conditions costs is accurate and included in the amount of an additive change. If a deductive change, the amount is generally Cost of the Work only; however, consult with the Owner in significant deductive Change Orders to determine if time or profit should be included in the deducted amount. Exhibit J Maximum Wage Rates, Salary and Labor Costs J-1 Exhibit J EXHIBIT J MAXIMUM WAGE RATES, SALARY AND LABOR COST The following schedules represent the agreement between the Owner and CM/GC as to the maximums for wages and salary, including employer-paid taxes and approved benefits, which may be paid. Notwithstanding the maximums set forth, in all cases only the Actual Cost paid may be reimbursed, so long as the following maximums are not exceeded. As economic conditions change over the life of the Construction Management At Risk Agreement, these maximums may be adjusted based upon documented evidence of changed rates presented by the party requesting the change; however, any such changes shall not effect any change in the established GMP. In all cases, particularly salary rates, the Actual Cost invoiced for payment must be the actual amounts paid, adjusted for the proportion of the rate applicable to the proportion of time the worker spent upon Project services as against all services for which the worker was paid. No overtime or bonus may be paid without verification that the need for such overtime or extra Work was caused by the Owner and with the express prior written approval of the Owner. No “profit,” “overhead,” or “burden” based upon percentages, statistics, or otherwise are permitted. Schedule J-1: Wage Rates (Collective Bargaining or Prevailing Wage Rate in Area) Category Rate Employer-paid Taxes Approved Benefits Hourly FICA GUTA FUTA W/C Rate Examples: Brick Mason (Journeyman) $18.50 $1.42 $ .17 $1.48 2.41 Carpenter (Journeyman) $17.85 $1.37 $ .16 $1.47 3.39 Carpenter (Helper) $12.30 $ .95 $ .11 $1.00 2.34 Administrative $ 6.50 $ .45 $ .06 $ .50 1.35 Etc. Schedule J-2: Reasonable Annual Salary Rates Category Rate Employer-paid Taxes Approved Benefits Gross FICA GUTA FUTA W/Comp Examples: Project Superintendent $80,000 $5603.42 $60.17 $110.48 1.41 Cost Manager $37,850 $2101.37 $33.16 $81.47 1.39 Etc. DATA TO BE SUPPLIED BY CM/GC AND REVIEWED/APPROVED BY OWNER PRIOR TO INCLUSION HEREIN Exhibit K Application for Payment Form K-1 Exhibit K EXHIBIT K APPLICATION FOR PAYMENT APPLICATION FOR PAYMENT NO. PROJECT NO.___________________________ CERTIFICATE OF THE CM/GC OR HIS DULY AUTHORIZED REPRESENTATIVE To the best of my knowledge and belief, I certify that all items, units, quantities, and prices of Work and material shown on this Application for Payment No. are correct; that all Work has been performed and materials supplied in full accordance with the terms and conditions of the Contract Documents between _____________________________________________ (Owner) and dated __________________________________________ (CM/GC) and all authorized changes thereto; and that the following is a true and correct statement of the contract account up to and including the last day of the period covered by this Application and that no part of the "amount due this Application" has been received. (a) Total cost for Work in place (original contract) $ (b) Total cost for Work in place (Change Orders) $ (c) Cost of materials stored at Site $ (d) CM/GC Fee earned through Application Date $ (e) Total cost ( (a) plus (b) plus (c) plus (d) ) $ (f) Amount retained (10%) $ (g) Total cost less retained percentage ( (e) minus (f) ) $ (h) Total of previous payments approved $ (i) Amount due this Application ( (g) minus (h) ) $ (j) Retainage release for Completed Subcontractors and Suppliers per Owner Approval (See Articles 4.3.6 and 4.3.7) $ (k) AMOUNT DUE CM/GC ( (i) plus (j) ) $ I further certify that all claims outstanding against the undersigned CM/GC for labor, materials, and expendable equipment employed in the performance of said contract have been paid in full in accordance with the requirements of said Contract, except such outstanding claims as are listed below or on the attached sheet, which statement contains all claims against the CM/GC which are not yet paid, including but not limited to all disputed claims and any claims to which the CM/GC has or will assert any defense. I further certify that all of the materials indicated on this Application for Payment that are being stored on the Site, but that are not yet incorporated into the building, have been purchased, delivered, and are now stored on the Site for future incorporation into the building, and until so incorporated, the title to same is, upon payment of this statement, vested in the Owner. Furthermore, the undersigned CM/GC assumes full responsibility for the existence, protection, and, if necessary, replacement of the above-mentioned materials until the completion of this contract. CM/GC By _____________________________________ Date Title ____________________________________ CERTIFICATE OF THE DESIGN PROFESSIONAL I certify that I have verified this Application for Payment and, to the best of my knowledge and belief, it is a true and correct statement of Work performed and statement of materials stored on Site by the CM/GC and that the CM/GC's certified statement of his account and the amount due him is correct and just. I further certify that all Work has been performed and materials have been supplied in full accordance with the terms and conditions of the Contract Documents and authorized changes thereto. Name Design Professional. Date: ________________________ Exhibit K Application for Payment Form K-2 Exhibit K SCHEDULE OF CHANGE ORDERS In support of Application for Payment No. ___________________________________________ Project No. Period Ending: _________________________________ CM/GC: ______________________________________ CHANGE ORDERS ADDITIONS TO GMP DEDUCTIONS Number (1) Date (2) Authorized Amount (3) Amount this Period (4) Completed Previous Periods (5) Authorized Deductions (6) Exhibit K Application for Payment Form K-3 Exhibit K WORK PERFORMED TO DATE In support of Application for Payment No. ___________________________________ For the period from , through inclusive. Project No. _______________________________ Name and location of Project CM/GC's Name and Address WORK INCLUDED IN CONTRACT ACTUAL COSTS WORK PERFORMED TO DATE CSI Category and Description Item No. and Designation (1) Number & Kind of Units (2) Unit Price (3) Actual Cost (4) No. of Units (5) Amount Earned to Date (6) Value of Incomplete Work (7) Percent Complete (8) A. Contracting Requirements: * a. b. c, 1. Division 1 – General Requirements: * a. b. c. 2. Division 2 – Site Construction: ** (i) Building a. b. c. (ii) Infrastructure a. b. c. 3. Division 3 – Concrete: * a. b. c. 4. Division 4 – Masonry: ** (i) Building a. b. c. (ii) Infrastructure a. b. c. 5. Division 5 – Metals: * a. b. Exhibit K Application for Payment Form K-4 Exhibit K c. 6. Division 6 – Wood and Plastics: * a. b. c. 7. Division 7 – Thermal & Moisture: ***** a. b. c. Roof: 8. Division 8 – Doors & Windows: * a. b. c. 9. Division 9 – Finishes: * a. b. c. 10. Division 10 – Specialties: * a. b. c. 11. Division 11 – Equipment: *** (i) Fixed or Built-in: a. b. c. (ii) Moveable: a. b. c. 12. Division 12 – Furnishings: *** (i) Fixed or Built-in: a. b. c. (ii) Moveable: a. b. c. 13. Division 13 – Special Construction: * a. b. c. 14. Division 14 – Conveying Systems: * a. b. c. 15. Division 15 – Mechanical: **** (i) Building a. b. c. (ii) Infrastructure a. b. c. 16. Division 16 – Electrical: ** (i) Building a. Exhibit K Application for Payment Form K-5 Exhibit K b. c. (ii) Infrastructure a. b. c. 17. Division 17 – Special Inspections: ** (i) Building a. b. c. (ii) Infrastructure a. b. c. (iii) Documents A. Total GMP of original contract B. Plus or minus total previously approved C. O.'s Nos.----------- incl. C. Plus or minus C. O.'s Nos.-----------incl. approved during period covered by this est.----------- D. Total Net Adjusted GMP NOTES: The following breakdowns must be accomplished in order to comply with Government Accounting requirements. Upon completion of the Project, the final Application for Payment must show all divisions and sections, and a Final Certification of Costs for Capital Asset Accounting completed and submitted with the Application for Final Payment. * Report Items in each division, by CSI division and such other breakdown as is useful to the CM/GC. ** These items must be broken down into 2 categories, (i) Building and (ii) Infrastructure, reported by specification section. Infrastructure for these purposes is defined as everything outside a line five feet from the building footprint. *** These items must be broken down into 2 categories; (i) fixed equipment & furnishings and (ii) Moveable equipment & furnishings and reported by specification section. **** Division 15 – Mechanical. This item must be broken down into 2 categories, (i) Building and (ii) Infrastructure, reported by specification section. Chillers and HVAC units that serve the facility are to be included as a part of the Building, even if they are outside the 5-foot limit. Chillers and HVAC units that are outside the 5 foot limit and serve more than one facility, such as equipment used in a central plant, are to be included in Infrastructure. ***** Division 7 – Thermal & Moisture Components of the Roof system should be reported as a separate line item. Generally, this includes components of Sections 7500 and 7600. Exhibit K Application for Payment Form K-6 Exhibit K SUMMARY OF MATERIALS STORED In support Application for Payment No. Project No. Period Ending: CM/GC: ITEM NO. NAME (Contractor or Subcontractor) TYPE OF MATERIAL QUANTITY AMOUNT (Dollars) TOTALS Prepared by for (Contractor) Date , and certified by him to be a true and accurate statement. Checked: By: Date: Exhibit L Certificate of Material Completion L-1 Exhibit L FINAL CERTIFICATION OF COSTS FOR CAPITAL ASSET ACCOUNTING Date: ____________________________________ To: ________________________________________________ (Owner) The following accounting of costs for Project No. ______________________________ , Project Name: ____________ _______________________________________ at ______________________________________________________ is submitted as follows, with the breakdown of costs as specified in the Final Pay Request attached hereto and incorporated herein, for the purposes of capital asset accounting pursuant to GASB 34 Accounting Statements: 1. BUILDING AND BUILDING IMPROVEMENTS: * $ _____________________________________ 2. INFRASTRUCTURE: ** $ _____________________________________ 3. FURNISHINGS AND EQUIPMENT: *** $ _____________________________________ ====================================== TOTAL: $ _____________________________________ Notes: (Contractor must insure costs from all Change Orders are apportioned and included in each line item above) * Building: Include totals from Items A, 1, 3, 5, 6, 7, 8, 9, 10, 13, 14, 15 and “Building” portions of Items 2, 4, and 16 (as described in the Work Performed to Date). ** Infrastructure: Include totals from the “Infrastructure” portions of Items 2, 4 and 16 (as described in the Work Performed to Date). *** Furnishing and Equipment : Include totals from only the “moveable” portions of Items 11 and 12 (as described in the Work Performed to Date). I certify to the best of my knowledge and belief that all of the amounts set forth on this Certificate are true and correct and are supported by the financial records for this Project on file with the Contractor. CM/GC _ By: ___________________________________ Date Title: __________________________________ CERTIFICATE OF THE DESIGN PROFESSIONAL I certify to the best of my knowledge, information and belief that the amounts certified by the CM/GC are consistent with the estimates provided in my final Statement of Probable Cost for the Project; that the Building Improvement contains a footprint based upon a line 5 feet outside the building structure) of _________ square feet, a total of __________ gross square feet, and contains ______ floors (including basements). The building fire protection system is _________________ (include type of system). The Certificate of Occupancy was issued on _________________________. I further certify that the design intent for this Project is that the Building and Building Improvements are of Building Construction Class _________ and ISO Occupancy Type(s) _______ and have an expected useful life of _____________ years from the date of this Certificate, and that my observations of the construction confirm these expectations. Name Design Professional. Date: ______________________ CERTIFICATE OF THE OWNER I certify that to the best of my knowledge, information, and belief that the cost of the real property covered by this Project, to the boundaries on the final Site Plan, was $ and the cost of additional government-supplied furnishings and equipment acquired for this Project was $ _____________________________________ . Name Title: ____________________. Date: ________________ Exhibit M Certificate of Material Completion M-1 Exhibit M Exhibit M Certificate of Material Completion M-1 Exhibit M _______________________________________ (OWNER) CERTIFICATE OF MATERIAL COMPLETION Date:______________________ Institution _________________________________________ Project Number ____________________________________ Project Name ______________________________________ Design Professional __________________________________________ The Design Professional issues this Certificate of Material Completion of the Project and certifies as follows: 1. The above-named Project has achieved Material Completion, as provided in the Contract Documents, on ______________________________. 2. The punchlist is attached hereto. The CM/GC shall complete all items on the punchlist and achieve Final Completion not later than 30 days from the date hereof. This day of , . DESIGN PROFESSIONAL (Name of Firm) By: Title: Exhibit M Certificate of Material Completion M-2 Exhibit M REVIEWED AND ACCEPTED: ______________________________________________ Date: ________________________________ Owner Exhibit N Certificate of Final Completion N-1 Exhibit N ____________________________________________________(Owner) CERTIFICATE OF FINAL COMPLETION Date:______________________ Institution _________________________________________ Project Number ____________________________________ Project Name ______________________________________ Design Professional __________________________________________ The Design Professional issues this Certificate of Final Completion of the Project and certifies as follows: 1. The above-named Project was fully constructed and completed as provided in the Contract Documents on _____ and is accepted by the undersigned under the terms and conditions of such Contract Documents. 2. The Contract Sum, as amended by Change Order and reduced by properly assessed Liquidated Damages, and further reduced by the attached Schedule of Credits to the Owner, is due and payable. 3. The CM/GC has furnished evidence satisfactory to the undersigned that all payrolls, material bills, and other indebtedness connected with the Work have been paid. 4. A (temporary) certificate of occupancy has been issued by the State Fire Marshal dated and numbered . Said certificate has been delivered to the following person: Name: ________________________________________ Address: ______________________________________ 5. The total cost of labor, materials, and equipment incorporated in the Project are as provided in the attached FINAL CERTIFICATION OF COSTS FOR CAPITAL ASSET ACCOUNTING. 6. All tests and inspections provided for in the Contract Documents have been made in the presence of a registered architect or registered engineer, and all Work was found to meet said tests and inspections in accordance with plans and Specifications. All mechanical systems, equipment, apparatus and controls (plumbing, heating, electrical, water, septic tank and sewerage disposal fields, refrigeration, kitchen equipment, fire alarm, program and public address, etc.) have been found to be in compliance with the Contract Documents and all applicable codes and to be in safe operational condition. Copies of all tests and certifications are included with the Final Documents. 7. All Work has been installed in such a manner as to comply strictly with all laws, ordinances, codes, rules, and regulations bearing on the conduct of the Work as provided in the Contract Documents. 8. There are no credits due the Owner for changes, deviations, omissions, or non-compliances other than as shown on the attached Schedule of Credits. 9. As Built Documents are to be furnished in accordance with the CM/GC Contract. 10. No Work has been certified for payment which was covered prior to consent of the Design Professional. 11. Attached is one copy of each bond, guarantee, or warranty as called for in the Contract Documents. 12. Attached are two copies of the affidavit of CM/GC as called for in the Contract Documents. Exhibit N Certificate of Final Completion N-2 Exhibit N 13. With exceptions noted below, there are, to the best of the knowledge and belief of the undersigned, no claims outstanding against the CM/GC arising out of the Contract Documents. This day of , . DESIGN PROFESSIONAL (Name of Firm) By: Title: ________________________________________________________________________________________________ SCHEDULE OF CREDITS TO OWNER [None] ________________________________________________________________________________________________ REVIEWED AND ACCEPTED: ______________________________________________ Date: ________________________________ Owner EXHIBIT O PROJECT DOCUMENTS O-1 EXHIBIT O EXHIBIT “O” PROJECT DOCUMENTS EXHIBIT P KEY PERSONNEL P-1 EXHIBIT P EXHIBIT “P” Senior Project Manager – Steve Langdon Project Manager – Tony Huber Field/Construction Superintendent – John Cullum HOME OF ' ESTABLISHED 2006 CITY COUNCIL AGENDA ITEM TO: City Council DATE: January 28, 2016 FROM: City Manager AGENDA ITEM: Consideration of a Component Change Order Number 1 between the City of Milton and New South Construction, Inc. MEETING DATE: Monday, February 1, 2016 Regular City Council Meeting BACKGROUND INFORMATION: (Attach additional pages if necessary) See attached memorandum APPROVAL BY CITY MANAGER: �APPROVED CITY ATTORNEY APPROVAL REQUIRED: YES CITY ATTORNEY REVIEW REQUIRED: YES APPROVAL BY CITY ATTORNEY VAPPROVED PLACED ON AGENDA FOR: 02,01 1 6 REMARKS () NOT APPROVED () NO () NO (J NOT APPROVED qo-�- Yau(m PHONE: 678.242.25001 FAX: 678.242.2499 Creen "° *er«<sea• 1op'bo info@cityofmiltonga.us I www.cityofmiltonga.us WILDLIFE Community ��Ech sof 13000 Deerfield Parkway, Suite 107 1 Milton GA 30004 To: Honorable Mayor and City Council Members From: Carter Lucas, PE - Public Works Director Date: Submitted on January 28th 2016 for the February 1st 2016 Regular Council Meeting Agenda Item: Consideration of A Component Change Order Number 1 between the City of Milton and New South Construction, Inc. ______________________________________________________________________________ Department Recommendation: Approval. Executive Summary: This is a request for approval of Component Change Order #1 for the construction of City Hall. The overall Construction Management Agreement allows for the issuance of a Component Change Order prior to approval of the overall Guaranteed Maximum Price (GMP) to facilitate the construction schedule. Component Change Order Number includes site work and utilities, cast in-place concrete, structural steel, elevator, fire protection, plumbing, HVAC and Electrical work. Staff is recommending approval of the Component Change Order #1with New South Construction, Inc in an amount not to exceed $5,754,368. Funding and Fiscal Impact: Funding for this project is available in the City Hall construction budget. Alternatives: There are no alternatives to this project. Legal Review: Sam Van VanVolkenburgh – Jarrard & Davis (12-28-15) Concurrent Review: Chris Lagerbloom, City Manager Attachment(s): Component Change Order #1 EXHIBIT G COMPONENT CHANGE ORDER CM/GC PROPOSED COMPONENT CHANGE ORDER NO 1 TO: Owner This proposed Component Change Order is submitted pursuant to Section 3 Part 2 of the Construction Management At Risk Agreement dated , 2016, the terms of which are incorporated herein by reference. Having carefully examined the Component Construction Documents prepared by (Design Professionao and approved by Owner on , 2016 , listed on attached Schedule A (Construction Documents), as well as the Site and conditions affecting the Work, the undersigned submits this proposed Component Change Order under Section 3 Part 2 of the Construction Management At Risk Agreement to furnish all service, labor and materials called for by the Construction Documents for the entire Work related to this Component in accordance with the aforesaid Construction Documents and the Construction Management Contract. Description of Component: To provide services as outlined in Schedule A. A. The Change Order Sum comprises the following amounts: 1. Construction Sum due Trade Contractors. Subcontractors and and Suppliers 2. General Conditions 3. General Requirements 4. Bonds, Insurance and Fees 5. Construction Contingency (2%) 6. CM/GC's Fee (4.25%) 7. Design Contingency (2%) B. The Construction Budget is attached as Schedule B. C. The Component Construction Progress Schedule is attached as Schedule C. D. The undersigned guarantees the final completion of the Component on or before January 13, 2017. $ 4,846,081 $210,935 $108,258 $144,408 $106,194 $230,175 $108,317 E. The undersigned agrees that this Component Change Order, together with the Notice of Acceptance, upon approval of the Owner, shall constitute a Change Order to the Contract Documents for the Project. F. The CM/GC has visited the Site, familiarized itself with the conditions under which the Work described in the Contract Documents is to be performed, and correlated its observations with the requirements of the Contract Documents, including the requirements set forth in Schedule A. New South Construction, Inc. By: DATED: ,20 RECOMMENDED FOR OWNER'S ACCEPTANCE: Design Professional — Cooper Carry Architects By: NOTICE OF ACCEPTANCE OF COMPONENT CHANGE ORDER NO. 1 TO: New South Construction, Inc (CM/GC) Order. 1132 West Peachtree Street Atlanta, Georgia 30309 Notice is hereby given to CM/GC that the Owner hereby ACCEPTS the foregoing Component Change DATED: , 20 Owner By: Schedule A Milton City Hall CCO #1 List of Drawings and Specifications 1-19-16 Milton City Hall NEW.11 am OuNdk*Vahm..Ma*dMpTrost - - - - - SHEET/ SPEC NUMBER SHEET DESCRIPTION a o 2u a N o Z N v a RENOVATION 0000 COVER SHEET 0 G001 DRAWING INDEX & GENERAL NOTS G002 GENERAL INFORMATION & APPLICABLE CODES 0 G101 MEANS OF EGRESS PLAN -ADMIN LEVEL 1 9 G102 MEANS OF EGRESS PLAN -ADMIN LEVEL 2 R G111 UL ASSEMBLIES 0 C-01 GENERAL NOTES C-02 EXISTING CONDITIONS 0 0 C-03 DEMOLITION PLAN R1 C-04 SITE PLAN C-05 GRADING & DRAINAGE PLAN 0 C-06 UTILITY PLAN Q C-07 STORM & SEWER PROFILES Q 0 C-08 DETENTION POND z C-09 EROSION CONTROL PHASE 1 0 C-10 EROSION CONTROL PHASE 1A C-11 EROSION CONTROL PHASE 2 0 0 C-12 EROSION CONTROL PHASE 3 0 C-13 ESPC NOTES 0 0 C-14 ESPC DETAILS z C-15 ESPC DETAILS 0 C-16 ESPC DETAILS 0 C-17 ESPC DETAILS 0 C-18 CONSTRUCTION DETAILS A z C-19 CONSTRUCTION DETAILS z C-20 WATER DETAILS Id 7 C-21 WATER DETAILS Id 0 C-22 WATER AND SEWER DETAILS 0 C-23 SANITARY SEWER DETAILS z 0 C-24 STORM SEWER DETAILS 0 0 C-25 DETENTION POND DETAILS 1-0.00 GENERAL NOTES & SCHEDULE z 1-1.00 OVERALL HARDSCAPE PLAN 0 11.01 HARDSCAPE PLAN ENLARGEMENT 12.01 HARDSCAPE DETAILS LS -1 PLANTING PLAN (REFERENCE ONLY) z 9 Ivi LS -2 PLANT LIST & DETAILS (REFERENCE ONLY) 0 0 z A100 ARCHITECTURAL SITE PLAN Q A201 FLOOR PLAN -ADMIN LEVEL 1 A202 FLOOR PLAN -ADMIN LEVEL2 0 A203 ROOF PLAN -ADMIN 0 A204 FLOOR & ROOF PLANS -COMMUNITY BUILDING 0 A205 EOS PLAN -ADMIN LEVEL 1 A206 EOS PLAN -ADMIN LEVEL 2 & COMMUNITY BLDG A300 ENLARGED PARTITION PLAN -ADMIN LEVEL 1 A301 ENLARGED PARTITION PLAN - CHAMBER/COMM BLDG LEVEL 1 Q A302 ENLARGED PARTITION PLAN -ADMIN LEVEL 2 0 A303 ENLARGED REFLECTED CEILING PLAN - ADMIN LEVEL 1 0 A304 ENLARGED REFLECTED CEILING PLAN - CHAMBER/COMM BLDG LEVEL 1 z A305 ENLARGED REFLECTED CEILING PLAN - ADMIN LEVEL 2 z A306 ENLARGED POWER/COMMUNICATION PLAN -ADMIN LEVEL 1 1�1 A307 ENLARGED POWER/COMMUNICATION PLAN - CHAMBER/COMM BLDG LEVEL 1 0 Milton City Hall SHEET/ SPEC NUMBER SHEET DESCRIPTION a o C O v 2 o 6 Z E m e A308 ENLARGED POWER/COMMINUCATION PLAN -ADMIN LEVEL 2 Q A309 ENLARGED FINISH PLAN - ADMIN LEVEL 1 A310 ENLARGED FINISH PLAN - CHAMBER/COMM BLDG LEVEL 1 A311 ENLARGED FINISH PLAN - ADMIN LEVEL 2 A312 ENLARGED FURNITURE PLAN -ADMIN LEVEL 1 d A313 ENLARGED FURNITURE PLAN - CHAMBER/COMM BLDG LEVEL 1 0 A314 JENLARGED FURNITURE PLAN - ADMIN LEVEL 2 m A401 BUILDING ELEVATIONS - ADMIN 0 A402 BUILDING ELEVATIONS - ADMIN / PW A403 BUILDING ELEVATIONS - COUNCIL A410 BUILDING ELEVATIONS - COMMUNITY BUILDING A420 BUILDING SECTIONS A421 BUILDING SECTIONS - COMMUNITY BUILDING 10 A422 IDIAGRAMMATIC BUILDING OUTLINES -ADMIN BLDG A423 DIAGRAMMATIC BUILDING OUTLINE - COMPOSITE A430 AXON VIEWS A501 INTERIOR ELEVATIONS A502 INTERIOR ELEVATIONS A503 INTERIOR ELEVATIONS A504 INTERIOR ELEVATIONS Q A505 INTERIOR ELEVATIONS A506 INTERIOR ELEVATIONS Q A507 INTERIOR ELEVATIONS L�1 A508 INTERIOR ELEVATIONS El A509 INTERIOR ELEVATIONS - CHAMBERS WEST m A510 INTERIOR ELEVATIONS - CHAMBERS EAST Q A511 INTERIOR ELEVATIONS - CHAMBERS NORTH 21 A512 INTERIOR ELEVATIONS - CHAMBERS SOUTH d A513 ENLARGED PLANS & ELEVATIONS - DIAS RI A514 ENLARGED PLANS & ELEVATIONS - TRANSACTION COUNTER d A515 ENLARGED PLANS & ELEVATIONS - BANQUETTE 4 A516 ENLARGED PLANS & ELEVATIONS - HUDDLE ROOMS El A517 RESTROOM PLANS & ELEVATIONS RI A518 RESTROOM PLANS & ELEVATIONS Q A519 RESTROOM PLANS & ELEVATIONS 10 A520 RESTROOM PLANS & ELEVATIONS 0 A521 RESTROOM PLANS & ELEVATIONS Q A522 RESTROOM PLANS & ELEVATIONS Q A524 INTERIOR MILLWORK DETAILS Q A525 INTERIOR DETAILS / FLOOR TRANSITIONS A530 CEILING DETAILS Q A601 WALL SECTIONS - ADMIN BLDG 0 A602 WALL SECTIONS - ADMIN / PW RI A603 WALL SECTIONS - CHAMBER BLDG 0 A701 ENLARGED PLAN DETAILS Q A702 ENLARGED ROOF EDGE DETAILS 10 A703 ENLARGED DETAILS 2 A704 ENLARGED DETAILS -ADMIN BALCONY 21 A705 ENLARGED DETAILS - COMMUNITY BUILDING IRDI A706 MISC. DETAILS RI A800 STAIR SECTIONS AND PLANS Rl A801 STAIR DETAILS 21 A802 ELEVATOR PLANS AND SECTIONS Q A910 INTERIOR PARTITIONS Q A911 INTERIOR PARTITIONS A912 INTERIOR PARTITIONS A913 DOOR SCHEDULE & TYPES A914 IFINISH & EQUIPMENT SCHEDULE 0 Milton City Hall SHEET/ SPEC NUMBER SHEET DESCRIPTION a o` \ 2 v 2 \ c g 6 Z m` ti a A915 DOOR DETAILS (STEEL STUF PARTITIONS) A920 PLUMBING STANDARDS D A921 EXTERIOR WINDOW & DOOR SCHEDULE & TYPES 0 A922 EXTERIOR WINDOW & DOOR DETAILS Q A923 TRIM PROFILES & DETAILS S1.00 GENERAL NOTES Q S1.01 GENERAL NOTES Q S1.02 TYPICAL SECTIONS AND DETAILS Q S1.03 TYPICAL SECTIONS AND DETAILS S1.04 TYPICAL SECTIONS AND DETAILS S1.05 TYPICAL SECTIONS AND DETAILS S2.01 FOUNDATION PLAN Q 0 S2.02 LEVEL 2 AND LOW ROOF FRAMING PLAN RI S2.03 ROOF FRAMING PLAN RI S2.04 COMMUNITY BUILDING AND DUMPSTER ENCLOSURE PLANS 0 S3.01 FOUNDATION SECTIONS AND DETAILS Q Q S4.01 COLUMN SCHEDULE & DETAILS Q S4.02 BRACED FRAME ELEVATIONS S5.01 SECTIONS AND DETAILS S5.02 TRUSS ELEVATIONS AND DETAILS Q S5.03 DUMPSTER ENCLOSURE SECTIONS AND DETAILS S6.01 WOOD FRAMING DETAILS S6.02 WOOD FRAMING DETAILS Q S6.03 WOOD FRAMING DETAILS Q M001 MECHANICAL LEGEND AND SCHEDULES M002 SCHEDULES - MECHANICAL Q M003 DETAILS - MECHANICAL Q M201 FLOORPLAN - ADMIN LEVEL 1 - HVAC M202 FLOOR PLAN - CHAMBER & COMMUNITY BUILDING - HVAC M203 FLOOR PLAN - ADMIN LEVEL 2 - HVAC L�7 M204 ROOF PLAN - ADMIN -HVAC E001 ELECTRICAL LEGEND, NOTES, AND SCHEDULES E002 ELECTRICAL EQUIPMENT CONNECTION SCHEDULES 0 E101 ELECTRICAL SITE PLAN Q E201 FLOOR PLAN -ADMIN LEVEL 1 -ELECTRICAL pi E202 FLOOR PLAN - CHAMBER & COMMUNITY BUILDING - ELECTRICAL E203 FLOOR PLAN - ADMIN LEVEL 2 - ELECTRICAL L�1 E204 ROOF PLAN -ADMIN E301 FLOOR PLAN - ADMIN LEVEL 1 - LIGHTING E302 FLOOR PLAN - CHAMBER & COMMUNITY BUILDING - LIGHTING 10 E303 FLOOR PLAN - ADMIN LEVEL 2 - LIGHTING 2 E401 FLOOR PLAN - ADMIN LEVEL 1 - MECHANICAL EQUIPMENT & CONDUITS 21 E403 FLOOR PLAN - ADMIN LEVEL 2 - MECHANICAL EQUIPMENT & CONDUITS 2 E501 ELECTRICAL RISER DIAGRAM E601 ELECTRICAL PANEL SCHEDULES 4 P001 LEGEND, SCHEDULES AND DETAILS - PLUMBING 2 P101 PLUMBING NATURAL GAS PLAN 2 P201 FLOOR PLAN - ADMIN LEVEL 1 - DOMESTIC WATER R1 P202 FLOOR PLAN - CHAMBER & COMMUNITY BUILDING - DOMESTIC WATER 2 P203 FLOORPLAN - ADMIN LEVEL 1 - DOMESTIC WATER P301 FLOOR PLAN - ADMIN LEVEL 1 - WASTE & VENT P302 FLOOR PLAN - CHAMBER & COMMUNITY BUILDING - WASTE & VENT P303 FLOOR PLAN - ADMIN LEVEL 2 - WASTE & VENT P304 ROOF PLAN -ADMIN - PLUMBING 10 P305 ROOF PLAN- CHAMBER - PLUMBING Q P401 FLOOR PLAN - ADMIN LEVEL 1 - CONDENSATE P402 I FLOOR PLAN - CHAMBER & COMMUNITY BUILDING - CONDENSATE P403 IFLOOR PLAN - ADMIN LEVEL 2 - CONDENSATE Milton City Hall SHEET/ SPEC NUMBER SHEET DESCRIPTION a o $ o Z E P501 ADMIN BUDILING - WASTE AND VENT ISOMETRIC Q P502 CHAMBER & COMMUNITY BUILDING - WASTE AND VENT ISOMETRIC Q AV0.00 COVER SHEET AV SYSTEMS 23 AV0.01 LEGEND SHEET AV SYSTEMS AV1.01A FLOOR PLAN - LEVEL 1 A / AV SYSTEMS 0 AV1.01 B FLOOR PLAN - LEVEL 1 B /AV SYSTEMS AV1.02 IFLOOR PLAN - LEVEL 2 / AV SYSTEMS 0 AV8.01 EQUIPMENT & CONNECTIVITY SHEET A - AV SYSTEMS 0 AV8.02 EQUIPMENT & CONNECTIVITY SHEET B - AV SYSTEMS AV8.03 EQUIPMENT & CONNECTIVITY SHEET C - AV SYSTEMS 0 AV9.01 DETAIL SHEET - AV SYSTEMS 21 DV0.00 INFORMATION TRANSPORT COVER SHEET 23 DV0.01 SYMBOL & LEGEND SHEET 21 DV1.00 SITE PLAN Q DV1.01 FLOOR PLAN LEVEL 1 DV1.02 FLOOR PLAN LEVEL 2 DV1.03 ROOF PLAN DV9.00 EQUIPMENT ROOM DETAILS AND RISER DIAGRAM DV9.06 INSTALLATION DETAILS DV9.07 SECURITY INSTALLATION DETAIL 003132 GEOTECHNICAL DATA 10 005200 AGREEMENT FORM RI 007200 GENERAL CONDITIONS Q 011000 SUMMARY 012300 ALTERNATES 012600 CONTRACT MODIFICATION PROCEDURES 012613 REQUEST FOR INFORMATION PROCEDURES RI 012900 PAYMENT PROCEDURES 21 012978 INTERIM CONTRACTOR'S AFFIDAVIT AND WAIVER OF LIENS 012979 FINAL CONTRACTOR'S AFFIDAVIT AND WAIVER OF LIENS 013113 PROJECT COORDINATION 0 013119 PROJECT MEETINGS 0 013200 CONSTRUCTION PROGRESS DOCUMENTATION 013300 SUBMITTAL PROCEDURES Rl 014200 REFERENCES RI 014500 QUALITY CONTROL 014523 INSPECTING AND TESTING SERVICES 014533 STRUCTURAL TESTING AND SPECIAL INSPECTION SERVICES 015000 TEMPORARY FACILITIES AND CONTROLS 0 015639 TEMPORARY TREE AND PLANT PROTECTION 015713 TEMPORARY EROSION CONTROL 015800 TEMPORARY PROJECT IDENTIFICATION 016000 PRODUCT REQUIREMENTS 017123 FIELD ENGINEERING Q 017329 CUTTING AND PATCHING 2 017419 CONSTRUCTION WASTE MANAGEMENT AND DISPOSAL 2 017700 CLOSEOUT PROCEDURES 10 024116 STRUCTURE DEMOLITION 2 024119 SELECTIVE DEMOLITION 10 033000 CAST -IN-PLACE CONCRETE 0 051200 STRUCTURAL STEEL FRAMING 052100 STEEL JOINT FRAMING 0 053100 STEEL DECKING Q 054000 COLD -FORMED METAL FRAMING Q 055000 METAL FABRICATIONS d 055100 METAL STAIRS 0 Milton City Hall SHEET/ SPEC NUMBER SHEET DESCRIPTION a o o c 6 Z E v' v 055213 PIPE AND TUBE RAILINGS Q 057500 DECORATIVE FORMED METAL 142400 HYDRAULIC ELEVATORS ID 210100 GENERAL FIRE PROTECTION REQUIREMENTS 210529 HANGERS AND SUPPORTS FOR FIRE SUPPRESSION PIPING & EQUIPMENT 0 211100 FIRE PROTECTION SYSTEMS 220100 GENERAL PLUMBING REQUIREMENTS 10 220529 HANGERS AND SUPPORTS FOR PLUMBING PIPING & EQUIPMENT 0 220553 INDENTIFICATION FOR PIPING AND EQUIPMENT 220700 PLUMBING INSULATION 221000 PLUMBING PIPING 221113 FACILITY WATER DISTRIBUTION PIPING 221313 FACILITY SANITARY SEWERS 224000 PLUMBING FIXTURES 0 230100 GENERAL MECHANICAL REQUIREMENTS 9 230529 HANGERS & SUPPORTS FOR HVA PIPING & EQUIPMENT 10 230548 VINRATION ISOLATION 10 230553 HVAC EQUIPMENT AND PIPING INDENTIFICATION 10 230593 TESTING, ADJUSTING, AND BALANCING 230700 HVAC INSULATION 230900 HVAC CONTROLS Q 232300 REFRIGERANT PIPING 232316 REFRIGERANT SPECIALTIES 233000 DUCTWORK 233300 DUCTWORK ACCESSORIES 0 233700 REGISTERS, GRILLES, AND DIFFUSERS 237223 ENERGY RECOVERY UNIT- ROOFTOP 238126 AIR COOLER SPLIT SYSTEM AIR CONDITIONING UNIT 238127 DUCTLESS AIR COOLED SPLIT SYSTEM AIR CONDITIONING UNITS 238129 VARIABLE REFRIGERATEDFLOW SYSTEMS 260100 IGENERAL ELECTRICAL REQUIREMENTS 10 260500 RACEWAY AND WIRING -600 VOLT 260526 GROUNDING SYSTEM L� 260550 ELECTRICAL IDENTIFICATION 262400 SERVICE AND DISTRUBUTION - 600 VOLT 262700 DEVICES 264100 LIGHTING PROTECTION 264302 SURGE PROTECTION DEVICE 265000 LIGHTING 311000 SITE CLEARING 312000 EARTH MOVING 0 312319 DEWATERING 313116 TERMITE CONTROL Q 316613 RAMMED AGGREGATE PIERS 10 321216 ASPHALT PAVING Q 321313 CONCRETE PAVING 321373 CONCRETE PAVING JOINT SEALANTS 334100 STORM UTILITY DRAINAGE PIPING 334600 SUBDRAINAGE Schedule B NEW SOUTH Budding Value ,.Budding Trust -nce 1990 Prepared.' January 19, 2016 DESCRIPTION DIVISION SUMMARY CCO #1 ESTIMATE MILTON CITY HALL Milton, Georgia CCO #1 CAST -IN-PLACE CONCRETE 481,211 STRUCTURAL STEEL 537,568 ELEVATOR 67,525 FIRE PROTECTION 102,390 PLUMBING 346,000 HVAC 695,000 ELECTRICAL 1,006,800 EARTHWORK AND UTILITIES 1,535,587 AGGREGATE PIERS 74,000 GENERAL CONDITIONS GENERAL REQUIREMENTS BONDS, INSURANCES, AND FEES CONSTRUCTION CONTINGENCY FEE DESIGN CONTINGENCY 4,846,081 210,935 108,258 144,408 2.0% 106,194 4.25% 230,175 2.0% 108,317 TOTAL COST $ 5,754,368 Milton City Hall New South Construction Co. Inc. CCO #1 Analysis Page 1 of 1 1/19/2016 Milton City Hall Revised CCO #1 Assurnutions and Clarifications We have included only the following scope of work in CCO #1: • Clearing. • Erosion control. • Grading. • Storm sewer. • Underground detention. • Sanitary sewer. • Fire and water service. • Aggregate piers. • Cast -In -Place Concrete • Structural Steel • Elevator • Fire Protection System • Plumbing • HVAC • Electrical The following included items are further clarified below. DIVISION 3 CONCRETE January 19, 2016 32.1 Wet cure for concrete is included at the restrooms at the Town Hall building. 32.2 Cast -in-place concrete for the site work is included in CCO #1. 32.3 Sidewalk along Branyan Trail is not included. DIVISION 5 METALS 5.1 An allowance of $10,000 is included for the area of exposed steel at the 2nd floor balcony. 5.2 We reserve the right to utilize a third party inspector in lieu of an AISC certified fabricator. DIVISION 14 CONVEYING EQUIPMENT 14.1 The elevator is included as basis of design, ThyssenKrupp. 14.2 Elevator doors are included as single speed, center opening. Two -speed is not available. 14.3 The maximum size door width of 42" is included. 14.4 We have included twelve months of elevator maintenance. DIVISION 21 FIRE SUPPRESION 21.1 Pre -action system is included at only 208 Server Room. 21.2 Fire protection risers, main lines, and branch lines are included as schedule 10 piping. 21.3 Fire pumps are not included. 21.4 Attic sprinklers are not included. 21.5 Seismic bracing of fire suppression system is not included. DIVISION 22 PLUMBING 22.1 Water closets are included as battery powered auto -flushing. Electrical power not required. IN Ilton City Hall _Assumptions and Clarifications CCO #1 Pricing Package Page 2 22.2 2" Fiberglass wrap is included for roof drain piping insulation. 22.3 Gas lamps, total 12, are included as an installed allowance of $36,000. 22.4 Gas meter and gas line from street is not included. DIVISION 23 HVAC 23.1 Daikin VRF and controls are included. 23.2 Integral and inline condensate pumps are included. DIVISION 26 ELECTRICAL 26.1 Lighting package as specified. 26.2 Site lighting is not included. 26.3 Lightning protection is not included. 26.4 Site electrical allowances are not included. 26.5 Emergency generators are not included. DIVISION 27 COMMUNICATIONS 27.1 Voice/Data, CCTV, Security, and A/V are not included in CCO #1. DIVISION 31 EARTHWORK 31.1 We have included 2' of de -mucking below the existing ground at the new underground detention system location. The removal of additional unsuitable soils is not included. 31.2 Rock removal is not included 31.3 Moisture adjustments to the soil are not included. 31.4 Permanent dewatering systems are not included. 31.5 We have the aggregate piers per the structural drawings included in the contract document list. We have not included any other work indicated in the structural drawings. 31.6 Aggregate pier design is based on achieving a soil bearing capacity of 5,000 psf at the footing locations. 31.7 Aggregate piers are designed to a depth of 14' below subgrade. 31.8 Aggregate piers are designed with a maximum settlement of 1". 31.9 Uplift of aggregate piers is not incorporated in the design. It is assumed the concrete foundation is designed to meet uplift requirements. 31.10 Aggregate piers are not included at the Town Hall Building. 31.11 We have not included any additional soil improvement measures outside of the aggregate piers at the City Hall building. DIVISION 33 UTILITIES 33.1 Stone bedding is included under all sanitary sewer and storm utility lines. Stone bedding is not included under domestic and fire water lines. 33.2 The water meter/capacity fee and sewer connection fee is included per Fulton County Water Meter Size Certification, total cost $28,332. 33.3 Irrigation meter are not included in CCO#1. Milton City Hall assumptions and Clarifications CCO #1 Pricing Package Page 3 GENERAL CONDITIONS /GENERAL REQUIREMENTS • We have allocated six months of the lump sum general conditions to CCO#1. General conditions costs required for work required within CCC)#1 that occurs after the initial six months, such as finish grading, MEP rough -in, and MEP trim will be included in subsequent CCO's and/or GMP's. • We have assumed continuous access to the site and that the road realignment project will not interfere with our construction operations. • The pricing is based on the construction documents dated 12/14/15, addendum 1 dated 12/23/15, and RFI responses 01 & 02 from Cooper Carry dated 1/05/16 and 1/07/16, respectively. • This CCO is based on the contract document list dated January 19, 2106. • Material testing and special inspections is not included. • Hazardous material testing and removal is not included. • Utility costs for permanent services is not included. • We have included general requirements necessary for the work included in CCO #1, they include the following items: o Temporary roads. o Temporary fence. o Construction survey/layout. o Flagman. o NPDES monitoring. o Safety Rails. o Dumpsters o Clean-up. o HVAC Verification. o BIM Coordination. o Bobcat/New Holland Rental. • Contingencies are included as follows: 0 2% Design Contingency. 0 2% CM Contingency. • The following bonds and insurances are included for the work in CCC)#1 only: o Payment and performance bonds for a premium of $36,769. o Builder's risk insurance at a rate of 0.11%. o General liability insurance at a rate of 0.70%. o Subcontractor default insurance at a rate of 1.25%. • Permit fees are not included. 0 Impact fees are not included. Schedule C s c �amaMg��g�g� P=<< Z £ g c $ ° F c f $ f $� i i F° Ig 7 :: c a e�>�€�� g .. r€ S •• ^\ "' \ C^ Y Y Y Y Y Y Y Y fr Y a a���� a............�rnRsRR$ i....RsxRRyStRsss9l2sAA ;og€x�uaogw Ezy a€E x %e$S�� _ zea