3-Form of Construction Services Agreement.pdf

DRAFT

This agreement will be modified as appropriate, in the County’s discretion, to include any additional specific terms related to the services or goods being provided.

Any questions regarding the form of this agreement must be submitted in writing by the deadline for questions specified in this solicitation.

CONSTRUCTION SERVICES AGREEMENT

ITB No: 26-38-5211

This Construction Services Agreement (the “Agreement”) is made and entered into this _____ day of ____________, 2026 (the “Effective Date,”), by and between FORSYTH COUNTY, GEORGIA, a political subdivision of the State of Georgia, acting by and through its governing authority, the Forsyth County Board of Commissioners (“County”) and _______________, a _____________ Corporation (the “Contractor”), collectively referred to herein as the “Parties”.

W I T N E S S E T H:

WHEREAS, the County desires to retain the Contractor to perform services for the construction of a Project general described as Replacement of the rectangular artificial turf for fields 6 and 8 at Fowler Park Forsyth County 4110 Carolene Way, Cumming, GA 30040 (the “Project”) and which Project is subject to Georgia Local Government Public Works Construction Law as codified at O.C.G.A. § 36-91-1 et seq.; and

WHEREAS, the County is authorized to enter into this Agreement pursuant to O.C.G.A.

§ 36-91-101 for “public works construction,” generally defined in O.C.G.A. § 36-91-2(12) as “the building, altering, repairing, improving, or demolishing of any public structure or building or other public improvements of any kind to any public real property other than those projects covered by Chapter 4 of Title 32 or by Chapter 37 of Title 50”; and

WHEREAS, in accordance with O.C.G.A. § 36-91-20 et seq., the County solicited Bids for the Project pursuant to the Invitation to Bid Number: 26-38-5211, (the “ITB”) which is maintained on file with the County Procurement Department; and

WHEREAS, the Contractor submitted a complete and timely Bid and met all Bid requirements such that based upon Contractor’s Bid the County awarded the ITB to the Contractor; and

WHEREAS, the County finds that specialized knowledge, skills, and training are necessary to perform the Work (as defined below) contemplated under this Agreement; and

WHEREAS, Contractor has familiarized itself with the nature and extent of the Contract Documents, the Project, and the Work, and with all local conditions and federal, state and local laws, ordinances, rules and regulations that may in any manner affect cost, progress, or performance of Work, and

WHEREAS, the Contractor has represented that it is qualified by training and experience to perform the Work; and

WHEREAS, Contractor desires to perform the Work as set forth in this Agreement under the terms and conditions provided in this Agreement; and

WHEREAS, the public interest will be served by this Agreement; and

NOW THEREFORE, for and in consideration of the mutual promises, the public purposes, and the acknowledgements and agreements contained herein and other good and adequate consideration, the sufficiency of which is hereby acknowledged, the Parties hereto do mutually agree as follows:

Section 1. Contract Documents

A. Exhibits. This Agreement along with the following documents, attached hereto and incorporated herein by reference, constitute the “Contract Documents”:

Exhibit “A” Scope of Work Exhibit “B.1” Form of Waiver and Release of Lien Upon Interim Payments Exhibit “B.2” Form of Waiver and Release of Lien Upon Final Payment Exhibit “C” Form of Final Affidavit Exhibit “D” Insurance Requirements Exhibit “E.1” Form of Performance Bond Exhibit “E.2” Form of Payment Bond Exhibit “F.1” Contractor Affidavit and Agreement Exhibit “F.2” Form of Subcontractor Affidavit

B. Documents Not Attached. All Change Orders (defined under Section 6 herein), Project Manual (if issued), other written amendments and documents amending, modifying, or supplementing the Contract Documents, which may be delivered or issued after the Effective Date shall also be or become a part of the Contract Documents, if properly adopted in writing and executed by the Parties.

C. Any conflicts discovered among the terms of the various Contract Documents shall be immediately reported to County Representative. In the event of any discrepancy among the terms of the various Contract Documents, the provision most beneficial to the County, as determined by the County in its sole discretion, shall govern

Section 2. Designated Representatives

A. County Representative. Rusty Pruitt, Deputy Director , Forsyth County Parks & Recreation Department (hereinafter referred to as the “County Representative”) shall be the County Representative authorized to act on County’s behalf with respect to the Work as the County’s designated representative on this Project, provided that any changes to the Work or the terms of this Agreement must be approved as provided in Section 6.

B. Contract Administrator. Any references to the “Contract Administrator” shall be deemed to refer to the Forsyth County Procurement Department.

C. Contractor Representative. Contractor shall designate a competent representative for the duration of the Project who shall be available on-site during active work hours and be responsible for ensuring that construction activities proceed in a timely manner, are executed accurately, and in compliance with jobsite safety. There shall be no change in Contractor’s Representative without written approval of the County.

D. Communications. Except as otherwise provided in the Contract Documents or when direct communications have been specifically authorized, the County and the Contractor shall endeavor to communicate with each other through their respective Representatives about matters arising out of or relating to the Agreement. The County Representative’s decisions in matters relating to aesthetic effect shall be final if consistent with the intent of this Agreement.

E. Contractor Responsibilities Unchanged. The duties, obligations, and responsibilities of the Contractor under this Agreement shall in no manner whatsoever be changed, altered, discharged, released, or satisfied by any duty, obligation, or responsibility of the Contract Administrator, County Representative, or any other party hired by the County. The Contractor is not a third-party beneficiary of any agreement by and between the County and any other party. It is expressly acknowledged and agreed that the duties of the Contractor to the County are independent of, and are not diminished by, any duties of the Contract Representative, or any other party to the County.

Section 3. The Work

A. The Work. The Work to be completed under this Agreement (the “Work”) includes, but shall not be limited to, the work described in the Scope of Work provided in Exhibit “A”, attached hereto and incorporated herein by reference. The Work includes all material, labor, insurance, tools, equipment, machinery, water, heat, utilities, transportation, facilities, services, and any other miscellaneous items and work 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 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 installation and operation of the Work. Contractor shall complete the Work in strict accordance with the Contract Documents.

B. Notice to Proceed. The County will issue a Notice to Proceed for the Project. Notice to Proceed may be issued for certain phases or portions of the Work. The Notice to Proceed shall state the date for beginning Work in its entirety or the dates for beginning the proportionate phase, (the “Commencement Date”), and Date of Substantial Completion (as defined in Section 5(B)). Unless otherwise approved, they shall perform its obligations under this Agreement as expeditiously as is consistent with reasonable skill and care and the orderly progress of the Work. All Work shall be finally completed within ____________ (___) calendar days after the last Date of Substantial Completion (the “Date of Final Completion”).

C. Defined Terms. Terms used in this Agreement shall have their ordinary meaning, unless otherwise defined below or elsewhere in the Contract Documents.

(i) “Substantial Completion” means when the Work or designated portion thereof is complete in accordance with the Contract Documents so that any remaining Work includes only (1) Minor Items that can be completed or corrected within the following thirty (30) calendar days, (2) Permitted Incomplete Work that will be completed by the date agreed upon by the Parties, and (3) any Warranty Work. Substantial 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, accessibility (if any), and any other systems or components essential to the County’s operations.

(ii) “Minor Item” means a non-essential portion or element of the Work that can be totally complete within thirty (30) calendar days.

(iii) “Permitted Incomplete Work” means Work that is incomplete through no fault of the Contractor, as determined by the County in its sole discretion.

(iv) “Final Completion” means when the Work has been completed in accordance with terms and conditions of the Contract Documents.

Section 4. Contract Term; Liquidated Damages; Expedited Completion; Limitations on

Delay; Partial Occupancy or Use

A. Contract Term. The term of this Agreement (“Term”) shall commence on the Effective

Date and continue until the earlier of (i) the Date of Final Completion of the Work in its entirety including, when applicable, all Work phases or (ii) the proper termination and non-renewal of this Agreement (provided that certain obligations, including but not limited to Warranty obligations, will survive termination/expiration of this Agreement).

Contractor warrants and represents that it will perform its Work in a prompt and timely manner, which shall not impose delays on the progress of the Work.

Every effort will be made by Contractor to stay within the originally stated the Commencement Date and Date of Substantial Completion or shorten this period. In the event, changes in accordance with the Contract Documents during the progress of the Work require the “Commencement Date” or “Date of Substantial Completion” to be modified or adjusted, such consideration for a modification or adjustment shall be made pursuant to a Change Order as outlined in Section 6.

Notwithstanding any other provision of this Agreement to the contrary, in the event the Term of this Agreement continued beyond the current fiscal year of execution (FY26), as required by O.C.G.A. § 36-60-13, this Agreement shall terminate absolutely and without any further obligation on the part of County on the last day of each fiscal year of the initial term and any renewal or extended term; provided, however, that this Agreement shall automatically renew on the first day of each subsequent fiscal year within the applicable term, and extend until the conclusion of the applicable term, unless County provides written notice of non-renewal to Contractor at least seven (7) calendar days prior to the end of the then current fiscal year. Further, this Agreement shall terminate immediately and absolutely at any such time as appropriated and otherwise unobligated funds are no longer available to satisfy County’s obligations under this Agreement. Title to any supplies, materials, equipment, or other personal property shall remain in Contractor until fully paid for by County.

B. Time is of the Essence, Liquidated Damages. Contractor specifically acknowledges that

TIME IS OF THE ESSENCE of this Agreement and that County will suffer financial loss if the Contractor has not achieved Substantial Completion of the Work on or before the Date of Substantial Completion as set forth herein or as such dates may be modified in accordance with this Agreement. The County and Contractor also recognize the delays, expense, and difficulties involved in proving in legal or arbitration proceeding the actual loss suffered by the County if the Work is not completed within the specified times.

Accordingly, instead of requiring any such proof, the County and Contractor agree that, as liquidated damages for delay (but not as a penalty), the Contractor shall pay to the County Five Hundred Dollars ($500) for each calendar day of delay to the Substantial Completion of the Work until Contractor achieves Substantial Completion of the Work, and for each calendar day of delay to the Final Completion of the Work until Contractor achieves Final Completion of the Work (Substantial Completion and Final Completion as defined in Section 3(C). Claims related to liquidated damages will be satisfied at or prior to the time of final payment.

The original “Commencement Date”, “Expected Dates of Substantial Completion”, and “Date of Final Completion” are all dates that are expected at the time of contract award and often change in accordance with the contract documents during the progress of the Work. Every effort will be made by Contractor to shorten this period.

C. Expediting Completion. The Contractor is accountable for completing the Work within the time period provided in the Contract Documents. If, in the judgment of the County, the Work is behind schedule and the rate of placement of work is inadequate to regain scheduled progress to ensure timely completion of the entire Work or a separable portion thereof, the Contractor, when so informed by the County, shall immediately take action to increase the rate of work placement by:

(1) An increase in working forces;

(2) An increase in equipment or tools;

(3) An increase in hours of work or number of shifts;

(4) Expediting delivery of materials; and/or

(5) Other action proposed if acceptable to County.

Within five (5) calendar days after such notice from County that the Work is behind schedule, the Contractor shall notify the County in writing of the specific measures taken and/or planned to increase the rate of progress. The Contractor shall include an estimate as to the date of scheduled progress recovery. Should the County deem the plan of action inadequate, the Contractor shall take additional steps to adjust as necessary to its plan of action until it meets with the County’s approval and such approval is provided in writing by the County.

D. Limitations on Delay-Related Claims. No direct or consequential damages for delay claims shall be paid to Contractor for any reason whatsoever whether caused in part or in whole by the County. Contractor shall not be entitled to an increase of the Maximum Contract Price or payment or compensation of any kind from the County for direct, indirect, consequential, impact or other costs, expenses or damages, including but not limited to, costs of acceleration or inefficiency, arising because of delay, disruption, interference or hindrance from any cause whatsoever, whether such delay, disruption, interference or hindrance be reasonable or unreasonable, foreseeable or unforeseeable, or avoidable or unavoidable. Contractor shall be entitled only to time extension in accordance with the project documents for actual days Contractor is delayed, whether caused in part or in whole by the County, as the sole and exclusive remedy for such resulting delay.

E. Partial Occupancy or Use. The County may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement between the County and Contractor, provided such occupancy or use is consented to by the insurer and Authority Having Jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the County and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage, if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. Immediately prior to such partial occupancy or use, the County and Contractor shall jointly inspect the area to be occupied, or portion of the Work to be used, to determine and record the condition of the Work. Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents.

Section 5. Contractor’s Compensation; Time and Method of Payment

A. Maximum Contract Price. The total amount paid under this Agreement as compensation for completion of the Project shall not, in any case, exceed _______________________________________ Dollars, ($______________) (the “Maximum Contract Price”), except as outlined in Section 6. The Contractor represents that the Maximum Contract Price is sufficient to perform all the Work set forth in and contemplated by this Agreement.

B. Payment Requirements:

(1) Payment for Work Completed and Goods, Materials and Equipment Acquired.

County agrees to pay the Contractor for the Work completed by Contractor upon certification by the Contract Administrator and the County Representative that the Work was completed in accordance with this Agreement. Payment shall be based on the value of the Work completed, as provided in the Contract Documents, plus the value of goods, materials, and equipment suitably stored, insured, and protected at the construction site, and, only if approved in writing at the sole discretion of the County Representative, such goods, materials and equipment suitably stored, insured, and protected off site at a location approved by the County Representative in writing, less retainage (as described herein). Goods, materials, and equipment suitably stored, insured, and protected off site at a secure bonded warehouse or facility owned by the Contractor or Contractor’s subcontractors and located in or near Forsyth County, may be approved by the County Representative at its sole discretion. A bill of lading, chain of custody, pictures of goods, address and twenty-four (24) hour access to storage locations shall be provided to the County Representative for goods, materials and equipment stored that may be approved for storage off site.

Compensation for Work completed shall be paid to the Contractor upon receipt and approval by the County of invoices setting forth in detail the Work completed, along with all supporting documents required by the Contract Documents or requested by the County to process the invoice. Invoices shall be submitted monthly, and such invoices shall reflect costs incurred versus the approved Schedule of Values. Each invoice shall be accompanied by an “Waiver And Release Of Lien And Payment Bond Rights Upon Interim Payment” the form of which is attached hereto marked Exhibit “B.1” or in the case of the invoice for final payment a “Waiver And Release Of Lien And Payment Bond Rights Upon Final Payment”, the form of which is attached hereto marked Exhibit “B.2”, procured by the Contractor from all subcontractors in accordance with O.C.G.A. § 44-14-366.

The County shall pay the Contractor within fifteen (15) calendar days after approval of the invoice by County staff, less any retainage as described below. No payments will be made for unauthorized work. Payment will be sent to the designated address provided by the Contractor by Automated Clearing House (ACH) for payments of up to One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00), and by Electronic Funds Transfer (EFT) or bank wire transfer for payments over One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00). Notwithstanding the above, the County retains sole discretion to remit payment on any invoice by U.S. mail or by making payment available for pick-up by Contractor’s authorized representative.

(2) Evaluation of Payment Requests. The Contract Administrator and County

Representative will evaluate the Contractor’s applications for payment and will either issue to the County a Certificate for Payment (with a copy of the Contractor’s Application for Payment) for such amount as the County Representative and Contract Administrator determines is properly due, or notify the Contractor in writing of the County Representative’s and Contract Administrator’s reasons for withholding certification in whole or in part. The County Representative or Contract Administrator may reject Work that does not conform to the Contract Documents and may withhold a Certificate of Payment as a whole or in part, to the extent necessary to protect the County. When the reasons for withholding certification are removed, certification will be made for amounts previously withheld.

Even following a Certificate of Payment, the County shall have the right to refuse payment of any invoice or part thereof that is not properly supported, or where requests for payment for Work are in excess of the actual Work completed, or where the Work provided is unacceptable or not in conformity with the Contract Documents, as determined by the County in its sole discretion. The County shall pay each such invoice or portion thereof as approved, provided that neither the approval or payment of any such invoice, nor partial or entire use or occupancy of the Project by the County, shall be considered to be evidence of performance by the Contractor to the point indicated by such invoice, or of receipt or acceptance by the County of Work covered by such invoice, where such work is not in accordance with the Contract Documents.

(3) Final Payment and Retainage. The County 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-five percent (95%) of that portion of the Work completed during the term covered by such invoice. Payment for the remaining five percent (5%) of Work completed and covered by such invoices shall be retained by the County until Substantial Completion. At the discretion of the County 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.

At Substantial Completion of the Work and as the County Representative determines the Work to be reasonably satisfactory, the County shall, within thirty (30) days after the invoice and other appropriate documentation as may be required by the Contract Documents are provided to the County, pay the retainage to the Contractor. If at that time there are any remaining incomplete Minor Items or Permitted Incomplete Work, an amount equal to two hundred percent (200%) of the value of each Minor Item or Permitted Incomplete Work, as determined by the County Representative in its sole discretion, shall be withheld until such item(s) or work 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 County, 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 County;

provided, 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, 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.

Final payment of any retained amounts to the Contractor shall be made after certification by the County Representative that the Work has been satisfactorily completed and is accepted in accordance with the Agreement and Contract Documents.

Neither final payment nor any remaining retainage shall become due until the Contractor submits to the Contract Administrator and the County Representative: (i) a Final Affidavit, a form of which is attached hereto as Exhibit “C”, evidencing that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the County or County property might be responsible or encumbered (less amounts withheld by County) have been paid or otherwise satisfied; (ii) a certificate of insurance and related endorsement pages evidencing all insurance requirements as outlined in Exhibit “D” attached hereto and Section 7(N); (iii) consent of surety, if any, to final payment; (iv) a Waiver and Release of Lien and Payment Bond Rights Upon Final Payment, (see form attached as Exhibit “B.2”), evidencing a release or waiver of liens, claims, security interests, and encumbrances by all subcontractors and material suppliers; and,

(v) if required by the County, other data establishing payment or satisfaction of obligations, such as receipts, to the extent and in such form as may be designated by the County. If a subcontractor or material supplier refuses to furnish a release or waiver as required by the County, the Contractor may furnish a bond satisfactory to the County to indemnify the County against such lien. If such lien remains unsatisfied after payments are made, the Contractor shall refund to the County all money that the County 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.

D. Material Deviations. 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 County before charges are incurred and shall be handled through written Change Orders, as described in Section 6. Whenever the County Representative considers it necessary or advisable, it shall have authority to require inspection or testing of the Work. However, neither this authority of the County Representative nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility on the part of the County Representative, County, or its agents, to the Contractor, subcontractors, material and equipment suppliers, their agents or employees, or other persons or entities performing portions of the Work.

E. Taxes. The County is exempt from Federal Excise and Georgia Sales and Use Tax and shall not be responsible for paying any taxes on any materials or services provided for herein.

At Contractor’s request, County shall provide evidence of its tax-exempt status. To the extent, if any, that the County furnishes tangible personal property to Contractor for incorporation into the Project, Contractor shall be responsible for paying the amount of tax owed for such tangible personal property.

Section 6. Change Orders

A. Change Order Defined. A “Change Order” means a written modification of the Contract

Documents, signed by representatives of the County and the Contractor with appropriate authorization.

B. Right to Order Changes. The County 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 and executed by the Contractor and the County. 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 County in its sole discretion, the County shall have the right to determine reasonable terms, and the Contractor shall proceed with the changed work.

C. 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. A Change Order shall include a detailed description of the changes ordered, the justification for the change, and any adjustments to the schedule or compensation. All Change Order requests must be submitted in writing to the County Representative 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 County and the Contractor.

D. Authority to Execute Change Order. The Forsyth County Board of Commissioners must approve any Change Order where (1) the Change Order will materially alter the terms of this Agreement, or (2) the cumulative increase in the Maximum Contract Price resulting from all Change Orders exceeds the greater of ten percent (10%) of the original Maximum Contract Price or Fifty Thousand Dollars ($50,000).

Notwithstanding the foregoing, any Change Order—regardless of amount or material effect—may, at the discretion of the County Manager, the Director of Procurement, or the applicable Department, be submitted to the Forsyth County Board of Commissioners for review and approval.

E. Minor Changes in the Work. The County Representative will have the authority to order minor changes in the Work not involving adjustment in the Maximum Contract Price or extension of the Term and not inconsistent with the intent of the Contract Documents.

Such changes shall be affected by written order signed by the County Representative and Contractor. The Contractor shall carry out such written orders promptly. If the minor change is later determined to impact the Maximum Contract Price, the Term, or the terms of this Agreement the changes shall be converted and formalized into a written Change Order by the requesting Party.

F. Change Order Request. Contractor shall submit a Change Order Request including factual justification in accordance with the Contract Documents; the date, time, and location the cost issue was first discovered, reported to the County Representative, formally documented in writing to the County Representative; the dates, times, and locations the work was actually performed; a narrative of the circumstances surrounding the cost issue; diagrams, attachments, and figures; quantity surveys and tabulations, scheduled values, to the satisfaction of the Contract Administrator and the County Representative. Approval of a Change Order Request by the Contract Administrator and the County Representative shall provide the Contractor with direction to proceed with securing materials and commence additional work, prior to issuance of a formal Change Order. A Change Order Request approval means, “approval for staff recommendation to the Forsyth County Board of Commissioners” and will not be eligible for payment until a formal Change Order is fully executed. The Board of Commissioners approval process may require a minimum of eight (8) business weeks or more to complete and return an executed Change Order to the Contractor. Contractor may only request payment of a fully executed Change Order.

Change Order Request mark-up is limited to a maximum of fifteen percent (15%) including labor, equipment, materials, supervision, bonds, insurance, overhead, profit or any other indirect cost as determined by the sole discretion of the County. The cumulative percentage of all sub-tier subcontractors shall not exceed fifteen percent (15%) including labor, equipment, materials, supervision, bonds, insurance, overhead, profit or any other indirect cost as determined by the sole discretion of the County. Equipment rates shall not exceed the current edition of the Bluebook Building & Construction Network equipment rates. Labor rates shall not exceed the most applicable rate as defined by the U.S. Bureau of Labor Statistics, as interpreted by the County.

G. New and Amended Construction Documents Issued. All new and amended construction documents shall be formally issued by the County Representative. The Contractor shall immediately distribute all new and amended construction documents to all subcontractors performing work under this Agreement and cause all its subcontractors to provide confirmation of cost and schedule impact. The Contractor shall submit all change order requests to the County Representative within fifteen (15) calendar days of receiving new and amended construction documents, including all subcontractors’ costs and supporting documentation to justify the request and a change order will be issued for all change order requests approved in accordance with the contract documents. After the fifteen (15) calendar days the County Representative shall issue a zero cost and schedule change order incorporating all new documents included into the contract scope of work.

Execution of a zero cost and schedule change order shall require the authorization and signature of the County Representative and the Contractor.

H. Change Order for charges back to Contractor from the County. Should the Contractor become liable to the County for charges owed back to the County from the Contractor, the Contract Administrator shall approve Change Orders reducing the contract value.

Section 7. Covenants of Contractor

A. Ethics Code; Conflict of Interest. Contractor agrees that it shall not engage in any activity or conduct that would result in a violation of the Forsyth County Code of Ethics or any other similar law or regulation. Contractor certifies that to the best of his or her knowledge no circumstances exist which will cause a conflict of interest in performing the Work. Should Contractor become aware of any circumstances that may cause a conflict of interest during the Term of this Agreement, Contractor shall immediately notify the County. If the County determines that a conflict of interest exists, the County may require that Contractor take action to remedy the conflict of interest or terminate the Agreement without liability. The County shall have the right to recover any fees paid for services rendered by Contractor when such services were performed while a conflict of interest existed, if Contractor had knowledge of the conflict of interest and did not notify the County within five (5) business days of becoming aware of the existence of the conflict of interest.

B. Meetings. The Contractor is required to meet with the County Representative or other County designated personnel, to resolve technical or contractual problems that may occur during the Term of this Agreement at no additional cost to the County. Meetings will occur as problems arise and will be coordinated by the County. The Contractor will be given a minimum of twenty-four (24) hours' notice of meeting date, time, and location.

In-person meetings are desired. However, at the Contractor’s option and expense, if mutually agreed by the County Representative and Contractor, an online video meeting may be substituted. Consistent failure to participate in problem resolution meetings, two

(2) consecutives missed or rescheduled meetings, or failure to make a good faith effort to resolve problems, may result in termination of the contract for cause.

C. Expertise of Contractor. Contractor accepts the relationship of trust and confidence established between it and the County, recognizing that the County’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 Work in pursuit of the timely and competent completion of the Work undertaken by Contractor under this Agreement. The Contractor agrees to use its best efforts, skill, judgment, and abilities to perform its obligations and to further the interests of County and the Project in accordance with County’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.

D. Proper Execution by Contractor. 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 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 applicable records retention requirements, and Georgia’s Open Records Act (O.C.G.A. § 50-18-70, et seq.). 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, including but not limited to those of repeated procedures and compensation for any County-hired entity’s services or expenses (if any), will be provided at Contractor’s expense and at no additional cost to the County. 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 Contractor shall promptly notify the County 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.

The Contractor’s duties shall not be diminished by any approval by the County of Work completed or produced; nor shall any approval by the County of Work completed or produced release the Contractor from any liability therefor, it being understood that the County is ultimately relying upon the Contractor’s skill and knowledge in performing the Work required under the Contract Documents.

Organization of the specifications into divisions, sections and articles, and arrangement of drawings shall not control the Contractor in dividing the Work among subcontractors or in establishing the extent of Work to be performed by any trade.

E. Familiarity with the Work.

(1) Contractor Familiarity with Work. Contractor represents that it has familiarized itself with the nature and extent of the Contract Documents, the Work, work site(s), locality, and all local conditions, laws and regulations that in any manner may affect cost, progress, performance, or furnishing of the Work. Since the Contract Documents are complementary, before starting each portion of the Work, the Contractor shall carefully study and compare the various Contract Documents, site conditions, authorities, tests, reports and studies relative to that portion of the Work, as well as the information furnished by the County, shall take field measurements of any existing conditions related to that portion of the Work, and shall observe any conditions at the Project site(s) affecting it. Contractor represents and agrees that it has correlated the results of all such observations, examinations, investigations, explorations, tests, reports, and studies with the terms and conditions of the Contract Documents. These obligations are for the purpose of facilitating construction by the Contractor and are not for the purpose of discovering errors, omissions, inconsistencies, or ambiguities in the Contract Documents; however, any errors, inconsistencies, omissions, or ambiguities discovered by the Contractor shall be reported promptly to the County in writing prior to performing work or procuring goods, materials or equipment. Contractor represents that it has given the County written notice of all errors, omissions, inconsistencies, or ambiguities that the Contractor has discovered in the Contract Documents so far, and the written resolution thereof by the County is acceptable to the Contractor. Further, Contractor acknowledges that its obligation to give notice of all such errors, omissions, inconsistencies, or ambiguities shall be continuing during the Term of this Agreement. Any failure on the part of the Contractor to notify the County in writing of any errors, omissions, inconsistencies, or ambiguities in the Contract Documents that Contractor discovered or reasonably should have discovered shall result in a waiver and full release by the Contractor of any future arguments or defenses based on such errors, omissions, inconsistencies, or ambiguities against the County. Further, if the Contractor fails to perform its obligations pursuant to this paragraph, the Contractor shall pay such costs and damages to the County as would have been avoided if the Contractor had performed such obligations.

(2) Partial Omissions of Work. The Contractor has carefully studied, compared and cross examined each section of the plans and specifications for all partial omissions of the

Work that are represented in one or more sections of plans and specifications, but not in other sections, has notified the County of all the omissions, and has obtained the omitted information from the County; otherwise, Contractor shall provide all omitted Work that is reasonably implied by partial representation in one or more sections of plans and specifications but omitted from others.

(3) Particular Errors of the Work. The Contractor has carefully studied, compared, and cross examined each section of the plans and specifications to identify all duplicative, inconsistent, or ambiguous representation of the Work, has notified the County of all duplications, inconsistencies, or ambiguities represented in the Work, and has obtained direction from the County. If Contractor fails to report any such issue, the greater cost of quality or work effort and greater quantity relating to duplicative, inconsistent, or ambiguous requirements will be provided by the Contractor. Prior to procuring goods related to conflict, contradiction, duplication, inconsistent, ambiguity or partial omission, the Contractor shall request directions from the County Representative and Contract Administrator to determine which items should be procured, or to provide credit to the County, or County’s desire to accept as attic stock.

(4) Examination of Existing Conditions. The Contractor shall, prior to proceeding with the Work, thoroughly examine the existing conditions in, around and adjacent to the limits of the Work, promptly report to the County Representative apparent discrepancies or defects in such existing conditions that could render it unsuitable for acceptance or construed as damage or defects caused by the Contractor during the progress of the Work. Failure of the Contractor to examine the existing conditions, adequately document and report to the County Representative prior to commencing the Work shall constitute acceptance and responsibility for all existing conditions in, around, and adjacent to the limits of the Work and Contractor shall be responsible for all costs and damages resulting from its failure to report reasonably discoverable defects.

(5) Inspection of Prior Work. If part of the Contractor’s Work depends for proper execution or results upon construction or operations by a separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the County Representative apparent discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results.

Failure of the Contractor so to report shall constitute an acknowledgment that the County’s or separate contractors completed or partially completed construction is fit and proper to receive the separate contractor’s Work, except as to defects not then reasonably discoverable, and Contractor shall be responsible for all costs and damages resulting from its failure to report reasonably discoverable defects.

(6) Contractor Requests for Information. If, with undue frequency (as determined by the County in its sole discretion), the Contractor requests information that is obtainable through reasonable examination and comparison of the Contract Documents, site conditions, and previous correspondence, interpretations or clarifications, the Contractor shall be liable to the County for reasonable charges from any County-hired entity, for the additional services required to review, research and respond to such requests for information.

F. Supervision, Inspection and Construction Procedures.

(1) Contractor Supervision. The Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Agreement, unless the Contract Documents give other specific instructions concerning these matters. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety therefor and, except as stated below, shall be fully and solely responsible for the jobsite safety for such means, methods, techniques, sequences, or procedures. If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the County and shall not proceed with that portion of the Work without further written instructions from the County as approved in writing by the County.

The Contractor shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of this Agreement. The Contractor shall take reasonable precautions for the safety of, and shall provide reasonable protection to prevent damage, injury or loss to: (a) employees and other persons who may be affected, (b) the Work and materials and equipment to be incorporated therein, whether in storage on or, when permitted, off the Project site(s), under care, custody or control of the Contractor or Contractor’s subcontractors or sub-subcontractors, and (c) other property at the Project site(s) or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations, and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss.

(2) Use or storage of explosives. When using or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB), encountered on the Project site(s) by the Contractor, the Contractor shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition to the County in writing.

(3) Maintenance of the Worksite. The Contractor shall maintain the Project and the surrounding worksite from the Commencement Date until Final Completion of the Project. Such maintenance duties include, but shall not be limited to, continuous and effective prosecution of the Workday by day with adequate equipment and forces to ensure that the Project worksite is always kept in satisfactory condition. The Contractor shall remove weeds from around, construction fencing, barrier, poles, standards, utility facilities, and other structures. All maintenance costs during construction and before the Work is accepted will be included in the Maximum Contract Price and the Contractor will not be paid any additional compensation for such maintenance services.

(4) Repair of Worksite and Private Property in the Case of Damage. From the Commencement Date until the Final Completion of the Project, the Contractor shall take every precaution against injury or damage to any part of the Project and the surrounding worksite by any cause whatsoever. The Contractor shall rebuild, repair, restore, and make good all injuries or damages to any portion of the Project or the worksite before Final Completion and shall bear the expense thereof. The Contractor shall also take every precaution against injury or damage to private property in or around the worksite and shall repair or replace any private property damaged (directly or indirectly) by the Work and shall bear the expense thereof.

(5) Suspension of Work. In case of suspension of…