00500 DBB Agmt _ Bonds 2023 10 24.pdf

Construction Agreement

Version 01/08/2023

AGREEMENT BETWEEN OWNER AND CONTRACTOR

FOR CONSTRUCTION

THIS Agreement is by and between Unified Government of Athens-Clarke County, Georgia, a body corporate and politic and a political subdivision of the State of Georgia (“Owner”) and [Name of Contractor]

(“Contractor”). Owner and Contractor, in consideration of the mutual covenants set forth herein, agree as follows:

ARTICLE 1 – WORK

1.01 Contractor will furnish all products, tools, construction equipment, skill, and labor of every description necessary to carry out and complete, in a good and workmanlike manner, construction of the project described as Athens-Clarke County CCA RFP# ARENA1-BRIDGESTAIR- GC1, Pedestrian

Bridge & Stairs, SPLOST 2020 Project No. 03, and will complete work in strict conformity with the

Contract Documents.

ARTICLE 2 – THE PROJECT

2.01 Athens-Clarke County CCA RFP# ARENA1-BRIDGESTAIR- GC1, Pedestrian Bridge & Stairs, SPLOST 2020 Project No. 03 (“Project”)

ARTICLE 3 – PROJECT ADMINISTRATOR and DESIGN PROFESSIONAL

3.01 Impact Development Management, LLC, a subconsultant to Jacobs Project Management Company

(hereinafter called the Project Administrator), which is to act as Owner’s representative, assumes all duties and responsibilities, and has the rights and authority assigned to Project Administrator in the Contract

Documents.

3.02 The Project has been designed by Perkins + Will (“Design Professional”), which assumes all duties and responsibilities and which has the rights and authority assigned to the Design Professional in the

Contract Documents.

ARTICLE 4 – CONTRACT TIMES

4.01 Time of the Essence

A. All Contract Times and time limits as set forth in in the General Conditions or as may be stated elsewhere in the Contract Documents are of the essence and are an essential element of this Contract.

4.02 Days to Achieve Substantial Completion and Final Completion

A. Contractor shall achieve Substantial Completion in accordance with Paragraph 14.04 of the General

Conditions within ____ calendar days after the date when the Contract Times commence to run as provided in Paragraph 2.03 of the General Conditions.

B. Contractor shall achieve Final Completion in accordance with Paragraph 14.07 of the General

Conditions within ____ calendar days after the date when the Contract Times commence to run.

4.03 Liquidated Damages

A. Contractor and Owner recognize that time is of the essence and is an essential element of this

Agreement and that Owner will suffer financial damage and loss, which will be difficult or impossible to

01/08/2023 accurately estimate, if the Work is not completed within the times specified in Paragraph 4.02 above, plus any extensions thereof allowed in accordance with Article 12 of the General Conditions.

B. Accordingly, if Contractor fails to achieve Substantial Completion of the Work within the times specified in Paragraph 4.02(A), plus any extensions thereof allowed in accordance with Article 12 of the

General Conditions, Contractor shall pay Owner as liquidated damages for delay (but not as a penalty), $____ for each day that expires after the time specified in Paragraph 4.02(A), plus any extensions thereof allowed in accordance with Article 12 of the General Conditions, until Contractor achieves Substantial

Completion in accordance with Paragraph 14.04.

C. Accordingly, if after achieving Substantial Completion, Contractor fails to achieve Final

Completion of the Work within the times specified in Paragraph 4.02(B), plus any extensions thereof allowed in accordance with Article 12 of the General Conditions, Contractor shall pay Owner as liquidated damages for delay (but not as a penalty), $____ for each day that expires after the time specified in

Paragraph 4.02(B), plus any extensions thereof allowed in accordance with Article 12 of the General

Conditions, until Contractor achieves Final Completion in accordance with Paragraph 14.07 of the General

Conditions.

D. If the Contractor abandons the Project before commencement of the Work or defaults in completion of the Work after commencement thereof, the Contractor shall be liable for all liquidated damages as set forth in Paragraph 4.03. These fixed liquidated damages are not established as a penalty but are damages which would be difficult or impossible of accurate estimate, and are calculated and agreed upon in advance by the Owner and the Contractor as reasonable pre-estimates of the Owner’s probable loss that will occur as a result of the failure on the part of the Contractor to complete the Work on time. Such liquidated damages referred to herein are intended to be and are cumulative and shall be in addition to every other remedy now or hereafter enforceable at law, in equity, by statute, or under the Agreement.

4.04 Waiver of Consequential Damages

A. The Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Agreement. This mutual waiver includes:

1. damages incurred by the Owner for rental expenses, for loss of use, income, financing, and for loss of management or employee productivity or of the services of such persons; and

2. damages incurred by the Contractor for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and bonding capacity, damage to reputation, and for lost profits.

B. The mutual waiver of Consequential Damages set forth in Paragraph 4.04 is applicable, without limitation, to all consequential damages due to either party’s suspension or termination in accordance with

Article 15 of the General Conditions. Nothing in this Paragraph 4.04 shall be deemed to preclude recovery of liquidated damages by the Owner in accordance with the requirements of the Agreement, including

Paragraph 4.03.

ARTICLE 5 – CONTRACT PRICE

5.01 The Owner hereby agrees to pay to the Contractor for the faithful performance of this Agreement, subject to additions and deductions as provided in Article 12 of the General Conditions, in lawful money of the United States of America, the sum of [CONTRACT VALUE WORDS] Dollars ($[CONTRACT

VALUE NUMBERS]) (the “Contract Price”). The Contract Price shall also pay for loss or damage arising out of the nature of the Work aforesaid, or from the action of the elements, or from unforeseen obstructions or difficulties encountered in the prosecution of the Work, and for all expenses incurred by, or in consequence of the Work, its suspension or discontinuance and for well and faithfully completing the Work and the whole thereof, as herein provided, and for replacing defective work or products for a period of one year after completion.

ARTICLE 6 – PAYMENT PROCEDURES

6.01 Submittal and Processing of Payments

A. Contractor shall submit Applications for Payment in accordance with Article 14 of the General

Conditions. Applications for Payment will be processed by Project Administrator as provided in the General

Conditions.

B. In accordance with Article 14 of the General Conditions, Contractor shall submit with each

Application for Payment a list of all material suppliers and subcontractors performing the Work for the time covered by the application.

C. In accordance with Article 14 of the General Conditions, Contractor shall submit with each

Application for Payment lien waivers from all material suppliers and subcontractors performing work or supplying materials for the time covered by the application.

6.02 Progress Payments; Retainage

A. Owner shall make progress payments, no more than once monthly, based upon the Contract Price and the Applications for Payment approved by the Project Administrator, as measured by the Schedule of

Values provided in Paragraph 2.07.A of the General Conditions.

B. If the Contractor has made Application for Payment as provided above, the Project Administrator will issue a Certificate for Payment to the Owner, with a copy to the Contractor, for such amount as the

Project Administrator determines to be properly due, or the Project Administrator will state, in writing, itemized and specific reasons for withholding a Certificate as provided herein.

C. The Owner will pay to the Contractor the amount approved in the Certificate for Payment, less retainage provided in Paragraph 6.02(D), less setoffs for delay or threatened default as the as the Owner or

Project Administrator determines, including but not limited to liquidated damages.

D. Retainage. The Owner will retain the following amounts from each properly Certificate for

Payment

1. Owner will retain 5 percent of the amount approved by the Certificate for Payment until

Contractor achieves Substantial Completion. However, at any time, Owner may withhold 200 percent of the value of any incomplete item of Work, as such value is determined by the Project Administrator.

2. In its sole discretion, Owner may release retainage earlier than Substantial Completion;

however, Owner may elect to reinstate retainage on amounts approved in Certificates for Payment at any time.

3. No form of collateral in lieu of cash will be acceptable as retainage.

4. Amounts retained by the Contractor from payments due to suppliers and subcontractors

(expressed as a percentage) shall not exceed that being retained by the Owner.

E. All Certificates for Payment are estimates, are approximate only, and are subject to correction by

Project Administrator’s subsequent Certificates for Payment or by the approved amount of Final Payment, as defined by Paragraph 14.07 of the General Conditions.

F. In the event of a conflict, O.C.G.A. Sections 13-10-80 through 13-10-83 shall supersede and control any provisions to the contrary in this Article 6.

6.03 Final Payment

A. Final Payment will be made in accordance with Paragraph 14.07 of the General Conditions and upon Final Completion of the Work as recommended by Project Administrator.

ARTICLE 7 – INTEREST

7.01 All moneys not paid when due as provided in Article 14 of the General Conditions shall bear interest in accordance with the requirements of Paragraph 14.02 of the General Conditions.

ARTICLE 8 – CONTRACTOR’S REPRESENTATIONS

8.01 In order to induce Owner to enter into this Agreement, Contractor makes the following representations:

A. Contractor has examined and carefully studied the Contract Documents and the other related data identified in the Bidding Documents.

B. Contractor has visited the Site and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work.

C. Contractor is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that may affect cost, progress, and performance of the Work. Contractor is familiar with state and/or local watering uses and restrictions, if any, that are in place at the time Proposal is made.

D. Contractor has carefully studied all reports and drawings: (1) reports of explorations and tests of subsurface conditions at or contiguous to the Site and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site (except Underground Facilities) that have been identified in the Supplementary Conditions as provided in Paragraph 4.02 of the General

Conditions and (2) reports and drawings of a Hazardous Environmental Condition, if any, at the Site which has been identified in the Supplementary Conditions as provided in Paragraph 4.06 of the General

Conditions.

E. Contractor has obtained and carefully studied (or assumes responsibility for doing so) all additional or supplementary examinations, investigations, explorations, tests, studies, and data concerning conditions

(surface, subsurface, and Underground Facilities) at or contiguous to the Site that may affect cost, progress, or performance of the Work or that relate to any aspect of the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, including any specific means, methods, techniques, sequences, and procedures of construction expressly required by the Bidding Documents, and safety precautions and programs incident thereto.

F. Contractor does not consider that any further examinations, investigations, explorations, tests, studies, or data are necessary for the performance of the Work at the Contract Price, within the Contract

Times, and in accordance with the other terms and conditions of the Contract Documents.

G. Contractor is aware of the general nature of work to be performed by Owner and others at the Site that relates to the Work as indicated in the Contract Documents.

H. Contractor has correlated the information known to Contractor, information and observations obtained from visits to the Site, reports and drawings identified in the Contract Documents, and all additional examinations, investigations, explorations, tests, studies, and data with the Contract Documents.

I. Contractor has given Project Administrator written notice of all conflicts, errors, ambiguities, or discrepancies that Contractor has discovered in the Contract Documents, and the written resolution thereof by Project Administrator is acceptable to Contractor.

J. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work.

ARTICLE 9 –CONTRACT DOCUMENTS

9.01 Contents

A. The Contract Documents consist of the following:

1. This Agreement, the General Conditions, the Specifications, and all other documents as listed in the Table of Contents of the Project Manual.

2. Drawings as listed in the Drawing Sheet Index at the front of each volume of drawings.

3. ______ Addenda issued and as acknowledged in the Proposal Documents.

4. Notice to Proceed

5. Change Orders

6. Work Change Directives.

B. Deleted.

C. Deleted.

D. There are no Contract Documents other than those listed above in this Article 9.

E. The Contract Documents may only be amended, modified, or supplemented as provided in

Paragraph 3.04 of the General Conditions.

ARTICLE 10 – MISCELLANEOUS

10.01 Terms

A. Terms used in this Agreement will have the meanings stated in the General Conditions.

10.02 Assignment of Agreement

A. No assignment by Contractor of any rights under or interests in the Agreement will be binding on

Owner without the written consent of Owner, unless otherwise prohibited by law. Unless specifically stated to the contrary in Owner’s written consent to an assignment, no assignment will release or discharge

Contractor or its surety from any duty or responsibility under the Contract Documents.

10.03 Successors and Assigns

A. Owner and Contractor each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents.

10.04 Severability

A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Contractor, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision.

IN WITNESS WHEREOF, Owner and Contractor have executed this Contract Agreement under their respective seals on the day and date first above written in two counterparts each of which shall, without proof or accounting for the other counterparts, be deemed an original Agreement.

This Agreement will be effective on ___________________, 20____ (which is the Effective Date of the

Agreement).

APPROVED AS TO FORM BEFORE EXECUTION

By:

Athens-Clarke County Attorney's Office

OWNER: UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY, GEORGIA

(name signed)

KELLY GIRTZ

Title: MAYOR

Address: 301 COLLEGE AVENUE

ATHENS, GEORGIA 30601

Attest:

(name signed)

JEAN SPRATLIN

Title: CLERK OF COMMISSION

(SEAL)

CONTRACTOR: NAME OF CONTRACTOR

By:

(name printed or typed)

Title:

Address:

Attest:

(SEAL)

Note: If the Contractor is a corporation, the Agreement shall be signed by the president or vice president, attested by the secretary and the corporate seal affixed. If the Contractor is a partnership, the Agreement shall be signed in the partnership name by one of the partners, with indication that he or she is a general partner.

Section 00500

Pre-Award Oath

STATE OF GEORGIA COUNTY OF CLARKE

In accordance with O.C.G.A. § 36-91-21(e), we, the undersigned of [Name of Contractor] being first duly sworn, deposes and says that:

We have not directly or indirectly violated O.C.G.A. § 36-91-21 (d), and more specifically, we have not

- prevented or attempted to prevent competition in such bidding or proposals by any means whatever,

- prevented or endeavored to prevent anyone from making a bid or proposal thereof by any means whatever, or

- caused or induced another to withdraw a bid or proposal for the work.

We, the undersigned, to the best of our knowledge, affirm that no other officers, agents or other persons acted for or represented the Contractor in the bidding for and procurement of this Agreement.

Signature Printed Name Title Date

SUBSCRIBED AND SWORN BEFORE ME ON THIS THE ____ DAY OF ____________, 20__

_______________________________________ My Commission Expires: __________________

Notary Public (SEAL)

Performance Bond

STATE OF GEORGIA BOND NO. _____________

COUNTY OF CLARKE

KNOW ALL MEN BY THESE PRESENTS, that we, [Name of Contractor], as Principal, (“Contractor”) and [Name of Surety], as Surety, do hereby acknowledge ourselves indebted and firmly bound and held unto Unified Government of Athens-Clarke County, Georgia for use and benefit of those entitled thereto, in the sum of [CONTRACT VALUE WORDS] Dollars ($[CONTRACT VALUE NUMBERS]) for the payment of which will and truly to be made, in lawful money of the United States of America, we do hereby bind ourselves, successors, assigns, heirs and personal representatives.

BUT THE CONDITION OF THE FOREGOING OBLIGATION OR BOND IS THIS:

WHEREAS, the Owner has engaged the said Contractor for the sum of [CONTRACT VALUE WORDS]

Dollars ($[CONTRACT VALUE NUMBERS]) for construction of Athens-Clarke County CCA RFP#

ARENA1-BRIDGESTAIR- GC1, Pedestrian Bridge & Stairs, SPLOST 2020 Project No. 03 as more fully appears in a written Agreement bearing the date of _________________________, 20___, a copy of which

Agreement is by reference hereby made a part hereof.

NOW, THEREFORE, if said Contractor shall fully and faithfully perform all the undertakings and obligations under the said Agreement hereinbefore referred to and shall fully indemnify and hold harmless the said Owner from all costs and damage whatsoever which it may suffer by reason of any failure on the part of said Contractor to do so, and shall fully reimburse and repay the said Owner any and all outlay and expense which it may incur in making good any such default, and shall correct all defects in products and workmanship appearing within one year of the completion of all Work, then this obligation shall be null and void, otherwise, it shall remain in full force and effect.

In its sole discretion, Owner may direct Surety to perform its obligations hereunder without the use of

Contractor, and in such case, Surety will not allow Contractor to perform any Work on or for the Project and Surety will procure another contractor to perform all remaining Work. Within ten days after receipt of

Owner’s request therefor, Surety will notify Owner of its plan for satisfying its obligations set forth herein.

Without limiting Owner’s rights hereunder, and in its sole discretion, Owner may elect to perform all or any part of the Work or perform any obligation of Contractor set forth in the Contract Documents, and in such event, Surety shall indemnify and hold harmless Owner from all costs and damage in the performance thereof.

And for value received it is hereby stipulated and agreed that no change, extension of time, alteration or addition to the terms of the said Agreement, or in the Work to be performed thereunder, or the other Contract

Documents shall affect the obligations under this Bond, and notice is hereby waived of any such change, extension of time, alteration or addition to the terms of the Agreement or to the Work or to the Contract

Documents.

This bond is given pursuant to and in accordance with the provisions of O.C.G.A. Section 36 91 1 et seq., as amended, and all the provisions thereof are made a part hereof to the same extent as if set forth herein.

IN WITNESS WHEREOF, the said Contractor has hereunder affixed its signature and seal, and said Surety has hereunto caused to be affixed its corporate signature and seal, by its duly authorized officers, on this

_______ day of ______________, 20___.

CONTRACTOR – PRINCIPAL [NAME OF CONTRACTOR]

(SEAL)

SURETY: [NAME OF SURETY]

(SEAL)

Note: Surety companies executing Bonds must appear on the Treasury Department's most current list

(Circular 570 as amended) and be authorized to transact business in the state where the Project is located.

Surety and Insurers must have an A.M. Best Financial Strength Rating of A or higher, with a Financial Size

Category of VII or higher.

00620 – 1

Payment Bond

STATE OF GEORGIA BOND NO. ____________

COUNTY OF CLARKE

KNOW ALL MEN BY THESE PRESENTS, that we, [Name of Contractor], as Principal, (“Contractor”) and [Name of Surety] as Surety, are held and firmly bound unto the Unified Government of Athens-Clarke

County, Georgia (“Owner”), for the use and protection of all subcontractors and all persons supplying labor, materials, machinery, and equipment in the prosecution of work provided in the Agreement defined herein, in the penal sum of [CONTRACT VALUE WORDS] Dollars ($[CONTRACT VALUE NUMBERS]) lawful money of the United States of America, we bind ourselves, our heirs, personal representatives, successors and assigns, jointly and severally, firmly by these presents.

WHEREAS, said Contractor has entered into a certain Construction Agreement with said Owner, dated

____________________, 20___, for construction of a project known as Athens-Clarke County CCA RFP#

ARENA1-BRIDGESTAIR- GC1, Pedestrian Bridge & Stairs, SPLOST 2020 Project No. 03

(“Agreement”), which Agreement and the Contract Documents for said Work shall be deemed a part hereof as fully as if set out herein.

NOW, THEREFORE, the condition of this obligation is such, that if the Contractor shall promptly pay in full every person doing work or furnishing labor, materials, machinery, or equipment for the Project, then this obligation shall be void; otherwise it shall remain in full force and effect.

This Bond is subject to the following conditions and limitations:

a) Any subcontractors and all persons supplying labor, materials, machinery, and equipment in the prosecution of work provided for in said Agreement shall have a direct right of action against the

Contractor and Surety on this Bond.

b) In no event shall the Surety be liable for a greater sum than the penalty of this Bond, or subject to any suit, action or proceeding thereon that is instituted later than one year after the final settlement of said Agreement.

c) This Bond is given pursuant to and in accordance with provisions of O.C.G.A. Section 36 91 1 et seq., as amended, and all the provisions of law referring to this character of Bond as set forth in said law, are hereby made a part hereof to the same extent as if set out herein in full.

IN WITNESS WHEREOF, the said Contractor has hereunder affixed its signature and seal, and said Surety has hereunto caused to be affixed its corporate signature and seal, by its duly authorized officers, on this

_____ day of ____________, 20___.

REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

00620 – 2

Payment Bond

CONTRACTOR – PRINCIPAL [NAME OF CONTRACTOR]

(SEAL)

SURETY: [NAME OF SURETY]

(SEAL)

Note: Surety companies executing Bonds must appear on the Treasury Department's most current list

(Circular 570 as amended) and be authorized to transact business in the state where the Project is located.

Surety and Insurers must have an A.M. Best Financial Strength Rating of A or higher, with a Financial Size

Category of VII or higher.