Attachment A _ Master Agreement _ approved _ .pdf

ATTACHMENT A

ATHENS-CLARKE COUNTY, GEORGIA

SPLOST PROGRAM

OWNER / TESTING AGENCY MASTER AGREEMENT

This Agreement is made as of the _____ day of _______in the year of Two Thousand ____(20__), between the

OWNER: The Unified Government of Athens-Clarke County, Georgia 301 College Avenue, Suite 101 Athens, Georgia 30601 (herein after referred to as “Athens-Clarke County” or “Owner”) and the

TESTING AGENCY: Enter Consultant Name and Address Here (herein after referred to as “Testing Agency”)

FOR THE PROJECT: ON-CALL ENVIRONMENTAL, GEOTECHNICAL AND MATERIALS

TESTING SERVICES

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TABLE OF CONTENTS

Article 1 Definitions

Article 2 Relationship of the Parties

Article 3 Owner's Responsibilities

Article 4 Basic Services

Article 5 Compensation

Article 6 Period of Service

Article 7 Notices

Article 8 Insurance

Article 9 Indemnification

Article 10 Termination

Article 11 Dispute Resolution

Article 12 Successors/Assignment

Article 13 Ownership of Documents

Article 14 Additional Provisions

Exhibit A Scope of Basic Services

Exhibit B Critical Date Schedule

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ARTICLE 1 - DEFINITIONS

The following words and phrases when appearing in initial capitalization shall have the following meanings for purposes of this Agreement:

1.1 Master Agreement:

This Master Agreement hereby known as the “Agreement”, including Exhibits A and B, appended hereto, constitutes the entire contract document between the parties. This Agreement is also an umbrella contract document to which additional projects may be added by the execution of a Professional Services Supplement.

This Agreement is for On-Call Environmental / Geotechnical / Subsurface Consultant Services, hereinafter referred to as Testing Agency Services, with the Unified Government of Athens-Clarke County.

The written terms and provisions of this Agreement shall supersede all prior verbal and written statements, otherwise not incorporated into this document, made by any agent, officer, employee or other representative of

Athens-Clarke County or the Testing Agency. Any such statements shall not be effective or be construed as entering into, or forming a part of, or altering this contract. Because this Master Agreement is the product of arms-length negotiations it shall be construed at law as though both parties drafted it.

1.1.1

This Agreement allows the Owner the right to select and direct the timing and sequence of project elements to be performed by the Testing Agency during the development of the project. The Testing Agency is not to begin any element without a written Notice to Proceed from the Owner or Owner’s Representative.

1.1.2

This Agreement is executed pursuant to RFP #26017 – On-Call Environmental, Geotechnical, and

Materials Testing Services, which is incorporated herein by reference. The services to be performed under this Agreement shall be consistent with the scope described in Section III of that RFP.

1.2 Project

The Project shall consist of Environmental, Geotechnical and Materials Testing On-Call Services for the SPLOST

Program and any other Department of the Owner as necessary.

1.3 Basic Services

Basic Services shall consist of the Environmental, Geotechnical and Materials Testing On-Call Services as indicated under Article 4 and specifically designated in Exhibit A to be performed and provided by the Testing

Agency. Scope of Services and Schedules for each project will be developed with the Testing Agency and a supplemental Agreement with Exhibits A and B detailing those scopes and schedules.

1.4 Exhibits

The Exhibits appended hereto represent the Owner's requirements for the Project, and no departure from these requirements will be allowed without specific written consent of the Owner.

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1.5 Construction Contract Documents

Construction Contract Documents shall consist of: drawings, specifications, General and Supplementary

Conditions of the Contract, General Requirements of the Contract, Agreement, Bid Forms, Bidder Instructions, Performance and Payment Bonds, any addenda or change orders, and any other documents necessary to fully describe the Work.

1.6 Contractor

The Contractor is the person or entity which enters into an agreement with the Owner to perform the construction of all or any part of the Project, including the providing of labor, materials, and equipment to be incorporated into the Work.

1.7 Owner/Owner's Representative

The Owner is the Unified Government of Athens-Clarke County, Georgia acting through its Mayor and

Commissioners and its Manager. The Owner’s Representative relative to the Agreement is the SPLOST Program

Administrator hereinafter referred to a “Program Administrator”. A “Project Administrator” may be appointed by the Program Administrator to administer this Agreement on a project by project basis. Other departments within the Owner’s organization are authorized to use the services provided by the Testing Agency, under this agreement on a project by project basis, in which case each department shall establish a “Project Administrator” in the Purchase Order for such services.

1.8 Compensation - Basic Services

The Cost-not-to Exceed fee designated in Article 5 to be paid by the Owner to the Testing Agency for Owner approved and satisfactory performance of Basic Services under Exhibit A.

1.9 Compensation - Reimbursable Expenses

Reimbursable expenses are those actual project specific expenditures made by the Testing Agency, its employees and sub-consultants to include travel, per diem, shipping and express mail, and printing in excess of the required number of submittals called for under Exhibit A. All reimbursable expenses not identified by this Agreement or in excess of the amounts estimated in Exhibit A must be approved in advance by the Owner or Owner’s

Representative.

1.10 Basic Services (Exhibit A)

The total cost to perform the Work associated with each of the Tasks and Project Elements is considered the

Project Budget.

1.11 Critical Date Schedule (Exhibit B)

The Critical Date Schedule (Exhibit B), if any, represents the phasing and timing of the major Project activities as described in Exhibit A. The Testing Agency shall exercise best efforts to meet the critical date schedule. The

Owner agrees to review the critical date schedule and adjust the schedule, if necessary, after completion of each phase as described in Article 6.2. If Critical Date Schedule shall be furnished by the Testing Agency and developed in conjunction with the Owner’s Representative(s) for each project covered by this contract.

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ARTICLE 2 - RELATIONSHIP OF THE PARTIES

2.1 Testing Agency

2.1.1

The Testing Agency shall provide professional services for the Project in accordance with the terms and conditions of this Agreement. The Testing Agency shall provide a list of its key project personnel and sub-consultants which it intends to retain for the Project. The list shall include such supporting information on the qualifications of key employees and sub-consultants as may be reasonably requested by the Owner. The

Owner reserves the right to approve the sub-consultants proposed, and the Testing Agency shall not retain a sub-consultant, or assign agents or employees to the Project to which the Owner has a reasonable objection.

2.1.2

The Owner has relied upon the personal qualifications of the individual employees of the Testing Agency and its sub-consultants in awarding this Agreement.

2.1.2.1

Testing Agency shall bind all sub-consultants to abide by this Agreement, in any subsequent Testing

Agency / sub-consultant agreements for work performed under this Agreement. Said agreements shall describe the scope of the services, principals and employees performing the services, and the commitment of those employees toward performance on the Project.

2.1.2.2

The key employees of the Testing Agency and designated sub-consultants are as follows:

Principal-In-Charge: Enter Principal-In-Charge Here

Project Managers: Enter Project Manager(s) Here

2.1.3

No substitution of the key staff/firms named in Paragraph 2.1.2 will be made without the written approval of the Owner. Should any of the staff/firms identified in paragraph 2.1.2 resign, be terminated, become incapacitated, or otherwise become unavailable for employment on this Project, the Owner has the right of approval, in advance of proposed substitute personnel. Replacement personnel must have full knowledge of the Project, comparable qualifications with those being replaced, and replacement should not cause unreasonable delay in the activities or completion of the Work.

2.1.4 By execution of this Master Agreement the Testing Agency declares that:

2.1.4.1

The Testing Agency is a licensed engineering firm in the State of Georgia for providing the services required by this contract, and together with retained sub-consultants possesses the ability and skill necessary to perform all the services required under this Agreement.

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2.1.4.2

The Testing Agency has the capabilities and resources necessary to perform its obligations hereunder in accordance with the schedules presented in Exhibit B.

2.1.4.3

The Testing Agency is familiar with current laws, rules and regulations which are applicable to the design and construction of the Project including, but not limited to, local ordinances and requirements of building codes of the city, county, state and federal authorities in effect at the time of Notice to Proceed. The

Testing Agency shall prepare all drawings and specifications in accordance with such laws, rules and regulations.

2.2 Sub-Consultants

2.2.1

The Testing Agency shall direct the performance of all its agents, employees and sub-consultants. The Testing

Agency shall be as fully responsible to the Owner for the acts and omissions of its agents and sub-consultants, and of persons either directly or indirectly employed by it, as it is for the acts and omissions of persons directly employed by it.

2.2.2

The sub-consultants employed by the Testing Agency shall be accessible to the Owner for purposes of consultation, clarification and interpretation of their specialized services. The Owner shall exercise this right in a reasonable manner so as not to delay the project or cause undue expense to the Testing Agency

Environmental, Geotechnical and Materials Testing On-Call.

2.2.3

Nothing contained in this Agreement shall create any contractual relation between any sub-consultant and the

Owner.

2.3 Owner Representation

The Owner will assign its representative(s) to the Project for purposes of administration of this Agreement. The

Owner’s Representative has no design responsibilities of any nature. It is the intent that none of the activities of the Owner Representative will supplant or conflict with the design or other services and responsibilities of the

Testing Agency under this Agreement. The Owner Representative shall have the authority to establish communication procedures, consistent with this agreement, to be followed by the Testing Agency, its sub-consultants, and contractor(s), and to call periodic conferences to be attended by the Testing Agency and its sub-consultants throughout the term of this Agreement.

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ARTICLE 3 - OWNER'S RESPONSIBILITIES

3.1 Designation of Owner's Representative

The Owner will designate an Owner's Representative authorized to act on behalf of the Owner with respect to the

Project. The Owner's Representative shall render decisions pertaining to the Project without unreasonable delay.

3.2 The Owner will be responsible for the following:

3.2.1

Provide full information regarding the requirements for the Project.

3.2.2

Examine documents submitted by the Testing Agency and render decisions pertaining thereto promptly to avoid unreasonable delay in the progress of the Testing Agency On-Call services.

3.2.3

Provide copies of special civil, structural, mechanical, chemical or other laboratory testing services, inspections and reports as required by law that are not otherwise called for in this Agreement.

3.2.4

Provide the services of a surveyor or other consultant to furnish a certified land survey of the site, giving as applicable grades and lines of streets, alleys, pavements and adjoining property; rights-of-way, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and complete data pertaining to existing structures, improvements, trees, and utilities serving the site and other information as reasonably requested by the Testing Agency and deemed necessary by the Owner.

3.3 Completeness of Owner's Reports

All services, information, surveys and reports required of the Owner shall be furnished at the Owner's expense and the Testing Agency shall be entitled to rely upon their accuracy and completeness.

3.4 Information and Approvals

The Owner shall furnish information and approvals required of it expeditiously for orderly progress of the Work.

3.5 Permits and Licenses

The Owner shall pay for, and secure with the assistance of the Testing Agency, all necessary permits, licenses, approvals, easements, and assessments required for the execution of the project, use, or occupancy of the Project.

3.6 Owner's Observations of Faults or Defects

If the Owner observes, or otherwise becomes aware of a fault or defect in the Project, or nonconformance with the construction documents, the Owner shall promptly provide written notice to the Testing Agency.

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ARTICLE 4 - BASIC SERVICES

4.1 Scope of Services - General:

4.1.1

The Basic Services to be provided by the Testing Agency shall be performed in the Tasks and Elements as described hereinafter in Exhibits A and B consistent with the terms of this Agreement. As indicated in Article

1, the scope of services shall be directed by Owner. Only services authorized in writing by the Owner shall be performed under this Agreement.

4.1.2

Testing Agency On-Call Scope of Services are to be provided as defined within Exhibit A. These services are further defined in the Scope of Work issued under RFP #26017, which is incorporated herein by reference.

4.1.3 Not Used.

4.1.4

Under Basic Services the Testing Agency shall provide up to five copies of all reports at no additional cost to the Owner, if so directed by the Owner.

4.1.5

The Testing Agency hereby represents and agrees that the testing, reports and other documents prepared by it pursuant to this Agreement shall be in accordance with professional standards for the purposes intended, and shall be in accordance with the project requirements.

4.1.6

The Testing Agency shall be responsible for the accuracy of the Work under this Agreement and shall promptly correct any of its errors and omissions without additional compensation. It shall be the responsibility of the Testing Agency through the period of performance under this Agreement to use such professional judgment and reasonable care consistent with the standard of care practiced by professionals in Testing

Agency’s field in the State of Georgia. Acceptance of the work by the Owner will not relieve the Testing

Agency of the responsibility of subsequent correction of errors, the clarification of any ambiguities, or the costs associated with any additional work caused by negligent errors or negligent omissions from the Work prepared by the Testing Agency.

At any time during the construction phase or during any phase of work performed by others based on data secured by the Testing Agency under this Agreement, the Testing Agency shall confer with the Owner for the purpose of interpreting the information obtained and to correct any errors or omissions. The above consultations, clarifications or corrections shall be made without added compensation to the Testing Agency.

The Testing Agency shall give immediate attention to such changes so there will be a minimum of delay to others.

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4.1.7

It is the responsibility of the Testing Agency to assist the Owner to obtain appropriate approvals from federal, state and local agencies pursuant to obtaining building and occupancy permits, as may be required in Exhibit A.

The Testing Agency shall prepare and submit documents for all such approvals. Additionally, the Testing Agency shall prepare appropriate charts or drawings for the Mayor & Commission, Manager’s Office, or other public presentation as may be reasonably requested by the Owner. Cost of such materials shall be a reimbursable expense if not outlined as basic services in Exhibit A.

4.2 Project Requirements/Exhibits:

Attached hereto and made part of this Agreement are the following Exhibits:

4.2.l EXHIBIT A – SCOPE OF BASIC SERVICES

Basic Services shall consist of the engineering services as indicated under Article 4 and specifically designated in Exhibit A to be performed and provided by the Testing Agency.

4.2.2 Exhibit B - CRITICAL DATE SCHEDULE:

Critical Date Schedule defines the sequence and timing of the design, review/approval and construction phase activities for the Project and how the Testing Agency’s services effect those dates. Should the Owner determine that the Testing Agency is behind this schedule, due to the Testing Agency's performance or lack thereof, Owner shall notify the Testing Agency in writing and Testing Agency shall expedite and accelerate its efforts, including additional labor and/or overtime, to maintain the agreed upon Critical Dates Schedule at no additional cost to the Owner.

4.3 Project Conferences and Coordination

Throughout all phases of the Project, the Testing Agency and its sub-consultants shall meet periodically with the

Owner and its representatives as defined within Exhibits A and B. Attendees at such meeting shall be as appropriate to the issues under consideration. Regularly scheduled meetings which the Testing Agency may attend include:

4.3.1 Agency Review

See Exhibit A

4.3.2 Initial Design Orientation / Project Analysis Session

4.3.3 Design Conferences

See Exhibit A.

4.3.4 Pre-bid Conference

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4.3.5 Pre-construction Conference

4.3.6 Construction Site Progress Meetings

4.3.7 Public, Agency, Commission & Special Called Meetings

4.3.8 Substantial and / or Final Completion Inspections (per construction contract)

4.3.9 Meetings In Excess of Agreed Maximums

Meetings in excess of those defined within Exhibits A and B will be reimbursable to the Testing Agency as

Additional Service only if first approved by the Owner.

4.4 Specific Minutes of Meetings

Not Used

ARTICLE 5 - COMPENSATION

The Owner shall compensate the Testing Agency for Owner/Owner's Representative approved and satisfactory performance in accordance with the terms of this Agreement in the following manner:

5.1 Basic Services Compensation

A Total Cost-not-to-Ex A Total Cost-not-to-Exceed amount will be determined on a project by project basis as part of the supplemental services agreement prepared for that specific project.

Rates and fees for task-order compensation shall be based on the Testing Agency’s approved Price Proposal

Schedule submitted under RFP #26017 – On-Call Environmental, Geotechnical, and Materials Testing Services.

5.1.1 Owner’s Cost

The actual cost to be paid by the Owner for each element of work as part of Basic Services is to be based on the actual hours worked and the hourly billing rates and reimbursable costs approved by the Owner and included in Exhibit A. These billing rates are to include all labor compensation due the Testing Agency in the performance of Basic Services. The not-to exceed values for each element represent the maximum cost to the Owner for satisfactory completion of the work and are not guaranteed to the Testing Agency for satisfactory performance.

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5.1.2 Pay Request

Payment for Basic Services including labor and reimbursable expenses associated with the Basic Services shall be made monthly in proportion to services satisfactorily performed and accepted by the Owner. Reimbursable

Expenses shall be billed to the Owner at direct cost to the Testing Agency and shall not exceed the amount provided for in Exhibit A.

5.1.3 Pay Request Detail

The Testing Agency shall make a payment request no more frequently than monthly and the pay request format shall indicate the services provided by Element, the associated hours by person, the associated wage rate, multiplier, profit and the total cost for each Element as defined in Exhibit A. Each pay request shall also indicate estimated percent complete by Element, and amounts previously requested by Element. The pay request must be in a format and include adequate information for the Owner to evaluate the request in a timely manner and approve payment. Owner will, within 10 days after receipt of each invoice, either indicate in writing a recommendation of payment or return the invoice to Testing Agency indicating in writing the reasons for rejecting the invoice. The Testing Agency agrees to make reasonable modifications to the pay request as requested by the Owner.

5.1.4 Retainage

No deduction shall be made from the Testing Agency’s compensation for retainage purposes.

5.2 Owner Requested / Approved Changes:

The Testing Agency and its sub-consultants shall not be compensated for Owner requested changes except as defined by Exhibit A.

5.2.1 Compensation for Project Delay

If the Project is delayed during the work so as to also delay the Basic Services of this Agreement through no fault of the Testing Agency, and such delay causes actual documented additional cost to the Testing Agency, the Testing Agency may request additional compensation. The Owner will review information provided by the

Testing Agency in any request for additional compensation and Owner will make a determination on whether additional compensation to the Testing Agency is warranted.

5.3 Additional Services Compensation:

Any Additional Services, as described under Article 5 herein, requested by the Owner shall be compensated through negotiation between the Testing Agency and the Owner. However, in the event that negotiations are not successful, the Owner may choose to utilize other means to accomplish the work or the Owner may direct the

Testing Agency to proceed with additional services on a time and materials basis with compensation to be in accordance with the hourly billing rates included in Exhibit A.

5.3.1 Additional Services of Subconsultants

For the Additional Services of Sub-consultants approved by the Owner, the Testing Agency may be compensated a multiple of one and one-tenth (1.1) times the amount billed directly to the Testing Agency for such services provided the total billing to the Owner for such services is not based on labor billing rates exceeding those included in Exhibit A. Additional special sub-consultant services may be required by the

Owner for the Work as stipulated in Paragraph 5.3 above. All costs of these special sub-consultant services shall be approved by the Owner prior to utilization of those services.

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5.4 Additional Reimbursable Expenses

Approved additional Reimbursable Expenses are in addition to those included as part of the compensation for

Basic Services. Additional Reimbursable Expenses must be approved, in advance, by the Owner and shall be billed to the Owner at direct cost except as noted below in Article 5.4.1.

5.4.1 Transportation Expense

See Exhibit A.

5.4.2 Printing Expense

Printing costs shall only be considered an additional reimbursable expense when approved, in advance, by the

Owner and printing exceeds the requirements established in this Agreement as Basic Services.

5.5 Payments for Additional Services and Reimbursable Expenses

5.5.1 Written Authorization from Owner

Prior to incurring any expense for Additional Services, Miscellaneous Special Sub-consultant Services

Allowance, or a Reimbursable Expense, the Testing Agency shall receive written authorization from the

Owner.

5.5.2 Records of Expenses and Payment

Records of Reimbursable Expenses and expenses pertaining to Additional Services shall be available to the

Owner at mutually convenient times as requested by the Owner. Where applicable, billings for Reimbursable

Expenses shall include copies of invoices incurred for such expenses. The Testing Agency shall include

Reimbursable Expenses and Additional Services on the monthly request for payment as separate categories from the Basic Services.

ARTICLE 6 - PERIOD OF SERVICE

6.1 Duration of Agreement

This Agreement shall take effect upon execution by the Owner and Testing Agency. Services will be provided by the Testing Agency until December 31, 2026, with the option to extend the contract annually for up to four additional one-year periods by the Owner.

Unless earlier terminated pursuant to Article 10, hereof, all specific tasks or elements authorized by this

Agreement or by Supplemental Agreement to this Master Agreement shall remain in force until all Elements of the Basic Services, all Additional Services, and all approved Change Orders of this Agreement have been completed and approved by the Owner in writing, excepting provisions of this Agreement relating to professional liability insurance in Paragraph 8.1.2, ownership of documents in Article 13, indemnity provisions in Article 9, and waiver or release of claims provisions in Paragraph 8.3, shall survive termination and shall remain in full force and effect.

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6.2 Adjustment of Critical Milestone Dates

If the Project is delayed so as to also delay the Basic Services of this Agreement through no fault of the Testing

Agency, the Critical Milestone Dates may be modified and updated by the Owner. Any adjustment of the Critical

Milestone Dates by the Owner will be evaluated jointly by the Owner and the Testing Agency as to impacts on the Period of Service, Basic Services, and Cost. Any Adjustment in the value of the Agreement will be determined as described in Article 5.2.1.

6.3 Time of Essence

Time is of the essence of this Agreement.

ARTICLE 7 - NOTICES

Any notice required by the Agreement or other communications to either party by the other shall be in writing and deemed given when delivered personally or when deposited in the United States Post Office, first class, postage prepaid, addressed as follows:

OWNER: TESTING AGENCY:

SPLOST Administrator

The Unified Government of Enter Consultant Name and Address Here

Athens-Clarke County, Georgia

301 College Ave.

Athens, Georgia 30601

ARTICLE 8 - INSURANCE

8.1 General

A. Testing Agency shall procure and maintain insurance as set forth below. Testing Agency shall cause

Owner to be listed as an additional insured and certificate holder on any applicable general liability insurance policy carried by Testing Agency.

B. Owner shall require Contractor to purchase and maintain general liability and other insurance in accordance with the requirements of Paragraph 5.04 of the “Standard General Conditions”, as defined in

Paragraph 6.01.G. of this Agreement, and to cause Testing Agency and Testing Agency’s Subconsultants to be listed as additional insureds with respect to such liability and other insurance purchased and maintained by

Contractor for the Project.

C. Testing Agency shall deliver to the Owner certificates of insurance evidencing the coverages indicated below. Such certificates shall be furnished when the Testing Agency returns the signed Agreement and at renewals thereafter during the life of the Agreement.

D. All policies of property insurance relating to the Project shall contain provisions to the effect that Testing

Agency’s and Testing Agency’s Subconsultants’ interests are covered and that in the event of payment of any loss or damage the insurers will have no rights of recovery against Testing Agency or its Subconsultants, or any insureds or additional insureds there under.

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E. At any time, Owner may request that Testing Agency or its Subconsultants, at Owner’s sole expense, provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified below. If so requested by Owner, and if commercially available, Testing Agency shall obtain and shall require its Subconsultants to obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by Owner, and the Agreement will be supplemented to incorporate these requirements.

F. General

1. The following general requirements apply to all Work under this Contract. Compliance is required by all Testing Agency’s and Testing Agency Subconsultants of any tier. The Owner reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

2. Evidence of Insurance Required Before Work Begins: No Testing Agency, Testing Agency’s and/or

Subconsultants shall commence any work of any kind under this Contract until all Insurance requirements contained in this Contract have been complied with as outlined below, and certificates of insurance have been provided to Owner and verified by the Athens-Clarke County Safety & Risk Administration.

3. Minimum Financial Security Requirements

a. Any and all companies providing insurance required by this Contract must meet certain minimum financial security requirements set forth below. These requirements conform to the ratings published by A.M.

Best & Company in the current Best's Key Rating Guide. The ratings for each company must be indicated on the

Accord Certificate of Insurance Form. For all Contracts, regardless of size, companies providing insurance under this Contract must have a current:

(1) Best's Rating not less that A, and current; and

(2) Best's Financial Size Category not less than Class VII.

(3) Companies must be authorized to conduct and transact insurance contracts by the Insurance

Commissioner, State of Georgia.

b. If the issuing company does not meet these minimum requirements, or for any other reason shall be or become unsatisfactory to the Owner, written notification shall be mailed by the Owner to the Testing Agency who shall promptly obtain a new policy issued by an insurer acceptable to the Owner, and shall submit evidence of the same to the Owner as required herein.

c. Upon failure of the Testing Agency to furnish, deliver and maintain such insurance as herein provided, this Contract, at the election of the Owner, may be declared forthwith suspended, discontinued or terminated.

Failure of the Testing Agency to take out and/or to maintain any required insurance shall not relieve the Testing

Agency from any liability under the Contract, nor shall these requirements be construed to conflict with the obligation of the Testing Agency concerning indemnification.

G. Insurance Required for Duration of Contract: Any and all Insurance required by this Contract shall be maintained during the entire length of this Contract, including any extensions thereto, and until all Work has been completed to the satisfaction of the Owner. The Owner shall have the right to inquire into the adequacy of the insurance coverages set forth in this Contract and to negotiate such adjustments as reasonably appear necessary.

H. The certificate of insurance evidencing required insurance shall contain an endorsement to the effect that any cancellation or any material adversely affecting The Unified Government of Athens-Clarke County’s interest shall not be effective until 30 days after the insurer or the Contractor gives written notices to the Purchasing

Administrator.

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I. Mandatory Subconsultant Compliance: Testing Agency shall incorporate a copy of these Insurance requirements in each and every contract with each and every Subconsultant of any tier, and shall require each and every Subconsultant of any tier to comply with all such requirements. Testing Agency agrees that if for any reason Subconsultant fails to procure and maintain Insurance as required, all such required Insurance shall be procured and maintained by Testing Agency at Testing Agency’s expense.

J. Authorization and Licensing of Agent

1. Each and every agent acting as Authorized Representative on behalf of a Company affording coverage under this Contract shall warrant, when signing the Accord Certificate of Insurance, that specific authorization has been granted by the Companies for the agent to bind coverage as required and to execute the

Accord Certificate of Insurance as evidence of such coverage; that the coverage required by the Owner may be broader than the original policies; and that these requirements have been conveyed to the Companies, which acknowledge and assent to these terms and conditions.

2. In addition, each and every agent shall warrant when signing the Accord Certificate of Insurance that the agent is licensed to do business in the State of Georgia and that the Company or Companies are currently in good standing in the State of Georgia.

K. Certificates of Insurance

1. Testing Agency shall deliver to Owner, with copies to each additional insured certificates of insur-ance (and other evidence of insurance requested by Owner or any other additional insured) which Testing Agency is required to purchase and maintain.

2. Copies of endorsements showing that the Owner and each additional insured identified herein have been added to the policies, as an additional insured shall be attached to each of the certificates.

3. In addition to the requirement for the policy limits specified below, the applicable insurance certificate must show that the entire aggregate policy limits for general and professional liability coverage will apply specifically for the Project.

4. Each insurance certificate for all coverages including Worker’s Compensation Insurance must show that a waiver of rights of recovery against any of the insured or the additional insured is in effect.

5. Certificate for Contractor’s liability insurance must show coverage of claims for damages because of bodily injury, sickness or death of any person or property damage resulting from the Ownership, maintenance or use of mobile equipment.

6. Each insurance certificate must show coverage is underwritten with an insurance carrier who is rated no less than the Minimum Financial Security Requirements provided above.

7. Certificate for Worker’s Compensation Insurance must show coverage includes executive officers and Contractor’s leased employees, temporary staff and part-time employees.

L. Owner may waive specific insurance coverages set forth in Paragraph 6.04 where Testing Agency provides equivalent insurance coverage by way of a different combination of policies.

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M. Insurance Coverages Required of the Testing Agency are as follows:

• Workers Compensation Insurance (per Occurrence) in the amounts of the statutory limits established by the General Assembly of the State of Georgia (a self-insurer must submit a certificate from the Georgia

Board of Works Compensation stating that the supplier qualifies to pay its own workers compensation claims). In addition, the supplier shall require all subcontractors occupying the premises or performing work under the contract to obtain an insurance certificate showing proof of Workers Compensation

Coverage with the following minimum coverage:

o Bodily injury by accident – per employee $100,000 o Bodily injury by disease – per employee $100,000 o Bodily injury by disease – policy limit $500,000

• Commercial General Liability (CGL):

o Each Occurrence Limit $1,000,000 o Personal & Advertising Injury Limit $1,000,000 o General Aggregate Limit $2,000,000 o Products/Completed Ops. Aggregate Limit $2,000,000

• Automobile Liability:

o Combined Single Limit $1,000,000

• Contractor’s Pollution Liability (with 1-year extended reporting period):

o Each Occurrence $3,000,000

• Umbrella Liability: $2,000,000

• Professional Liability: $1,000,000

N. Additional Insureds:

1. The following persons or entities are to be listed on Testing Agency’s general liability policy of insurance as additional insureds:

a. Unified Government of Athens-Clarke County, Georgia

b. Jacobs Project Management, Inc.,

c. Others as may be specifically identified for each project as part of the supplemental services agreements.

ARTICLE 9 - INDEMNIFICATION

9.1 Testing Agency an Independent Contractor

In the performance of this Agreement the Testing Agency is an independent contractor, and the Testing Agency, its officers, employees, agents, or subcontractors (sub-consultants) shall not be considered employees or agents of the Owner.

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9.2 Claims, Damages, Losses and Expenses

To the fullest extent permitted by law, Testing Agency shall indemnify, defend, and hold harmless Owner, and

Owner’s officers, directors, partners, agents, Subconsultants, and employees from and against any and all claims, costs, losses, and damages (including but not limited to all fees and charges of Testing Agency’s, architects, attorneys, and other professionals, and all court, or other dispute resolution costs) arising out of or relating to the

Project, provided that any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property, including the loss of use resulting there from, but only to the extent caused by any negligent act or omission of Testing Agency or Testing Agency’s officers, directors, partners, employees, or Subconsultants. The Testing Agency shall indemnify, defend, and hold harmless the

Owner and its officers, agents and employees from and against all claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting directly or indirectly from:

9.2.1 Testing Agency's Negligent Performance

The Testing Agency's negligent performance or failure to perform its obligations under this Agreement, and

9.2.2 Bodily Injury or Destruction of Property

Any claim, damage, loss or expense attributable to bodily injury, sickness, disease or death, or to injury to or destruction of personal property including the loss of use resulting therefrom and caused by the negligent act of the Testing Agency's officers, employees, agents, subcontractors (sub-consultants), or anyone directly or indirectly employed by the Testing Agency.

9.3 The Testing Agency's Duty

The Testing Agency's duty to indemnify the Owner includes the Owner's legal cost in the event the Testing

Agency is found to be guilty of negligence.

9.4 Statute of Limitation on Testing Agency's Liability

This indemnification will terminate whenever the appropriate statute of limitation on the Testing Agency's liability shall have run.

9.5 Foregoing Indemnification Obligations

The foregoing indemnification obligations shall not be construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any part or person under this Agreement.

9.6 Causes Beyond Control

Except as otherwise set forth in this Agreement, the Testing Agency and Owner shall not be liable to each other for any failure in the performance of their respective obligations and responsibilities under this Agreement which arises from causes beyond their control and without their fault or negligence, including but not limited to, any of the following events or occurrences: fire, flood, earthquake, epidemic, atmospheric conditions of unusual severity, war, state or local government acting in its sovereign capacity, and strikes.

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ARTICLE 10 – TERMINATION

10.1 Termination by Owner for Cause

If the Testing Agency shall: fail to fulfill in a timely and proper manner the Testing Agency’s obligations under this Agreement; refuse or fail to supply sufficient skilled staff or proper materials; or disregard laws, ordinances, rules, regulations or orders of any public authority, the Owner may terminate this Agreement without prejudice to any other right or remedy otherwise available to the Owner by giving a fifteen (15) day written notice to the

Testing Agency of such termination. Upon receipt of such notice, the Testing Agency shall perform no further services pursuant to this Agreement and shall likewise bind its Sub-consultants and vendors and will indemnify

Owner from such a party's claim for fees, profits, expenses, or costs for services beyond the date of termination.

Upon the appointment of a receiver for the Testing Agency, or if the Testing Agency makes a general assignment for the benefit of creditors, the Owner may terminate this Agreement, without prejudice to any right or remedy otherwise available to the Owner, upon giving a three (3) day written notice to the Testing Agency.

Upon termination by the Owner under any conditions noted above, the Owner shall be entitled to furnish or have furnished the services to be performed hereunder by the Testing Agency by whatever reasonable means the Owner may deem expedient. In such cases the Owner may withhold amounts owed to the Testing Agency as setoff without interest accruing thereon until the cost of such termination to the Owner is determined, and the Testing

Agency and its sub-consultants shall not be entitled to receive any further payment until completion of the Work.

10.2 Termination by Owner for Project Delay

If through no act or fault of the Testing Agency the Owner abandons the Project; or the Project is stopped for more than six (6) months due to actions taken by the Owner, or under an order of any court or other public authority having jurisdiction, or as a result of an act of government, such as a denial of approval by an agency, the Owner shall offer termination of the Agreement to the Testing Agency, and upon written acceptance of the

Testing Agency terminate the Agreement. The Testing Agency shall be compensated in accordance with the

Agreement for all work satisfactorily performed and for approved expenses incurred up to the date of termination.

10.3 Event of Termination under This Article

10.3.1

The Testing Agency will deliver to the Owner all drawings, documents specifications and materials relating to the Project prepared by or in the possession of the Testing Agency. The Owner agrees that if this

Agreement is terminated pursuant to this Article and any of the drawings, plans, specifications and other related documents are used by another consultant other than the Testing Agency, the Owner waives its right to make claims against the Testing Agency with respect to any errors or omissions contained in the documents. Further, the Owner agrees not to authorize the use of any of the Testing Agency’s documents for projects other than the one set forth in this Agreement. All finished documents shall contain the Testing

Agency’s license/registration stamp or seal.

10.3.2

The Testing Agency shall remain liable to the Owner for damages resulting from any breach of this Agreement by the Testing Agency, and the payment of any sums by the Owner under this Article shall not constitute a waiver of any claims for damages by the Owner for any breach of this Agreement by the Testing Agency.

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ARTICLE 11 - DISPUTE RESOLUTION

11.1 Suits and Proceedings

This Agreement, and the performance hereunder, and all suits and proceedings shall be construed pursuant to the laws of the State of Georgia. Where litigation is necessary to enforce this Agreement or any of its provisions, venue shall be in the Superior Court of Athens-Clarke County, Georgia, or if federal jurisdiction is applicable, the United States District Court for the Middle District of Georgia, Athens Division.

ARTICLE 12 - SUCCESSORS/ASSIGNMENT

12.1 Assignment or Transfer

Neither this Agreement nor any interest therein, or claim thereunder, shall be assigned or transferred by the

Testing Agency to any other party. An assignment or transfer may be made only upon the written consent of the non-assigning party to this contract. This Agreement is binding on the parties and their heirs, successors and assigns.

ARTICLE 13 - OWNERSHIP OF DOCUMENTS

13.1 Sole Property of Owner

All documents, designs, drawings, specifications, technical data, testing data, testing results, and other instruments produced by the Testing Agency in the performance of this Agreement as included under Basic

Services, Exhibit A shall be the sole property of the Owner, except as stated under Article 13.2, and the Owner is vested with all rights therein of whatever kind and however created, whether created by law or by equity. The

Testing Agency agrees that the Owner shall have access at all reasonable time to inspect and make copies of all notes, designs, drawings, specifications and other technical data pertaining to the work to be performed under this

Agreement.

13.2 The Testing Agency

The Testing Agency shall be permitted to retain copies including reproducible copies of drawings and specifications. It is understood that the Testing Agency may reuse design drawings and specifications from this

Project for other Owners and such use shall not infringe on the rights of the Owner, herein, nor give rise to any claim against Testing Agency by Owner, but duplication of the Project as a whole or its design in its entirety by the Testing Agency is prohibited. Notwithstanding Owner's ownership of the Project documents, Testing Agency remains fully and solely professionally liable for the contents of same, so long as Testing Agency is not terminated under this Agreement.

13.3 Termination Under Article 10

In the event of termination under Article 10 herein, the Owner shall receive all drawings, plans, specifications and other related documents prepared by the Testing Agency whether or not they are complete, and they shall be considered property of the Owner.

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ARTICLE 14 - ADDITIONAL PROVISIONS

14.1 Acts or Failures

Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run on the date of issuance of the final payment to the Testing Agency for any and all services under this Agreement.

14.2 Severability

Any provision or part of the Agreement held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Design

Consultant, who agree that the Agreement 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.

14.3 Contractual Relationship

Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Testing Agency.

14.4 Hazardous Materials

Unless otherwise provided in this Agreement, the Testing Agency and Testing Agency's sub-consultants shall have no responsibility for the discovery, presence, handling, removal or disposal of or exposure of persons to hazardous materials in any form at the Project site, including but not limited to asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic substances. The Testing Agency will assist the Owner in coordinating any hazardous material Consultant's or Contractor's work with the work being provided by the said

Testing Agency.

14.5 Representations of the Design of Project

The Testing Agency shall have the right to include representations of the design of the Project, including photographs of the exterior and interior, among the Testing Agency's promotional and professional materials.

The Testing Agency's materials shall not include the Owner's confidential or proprietary information if the Owner has advised the Testing Agency in writing of the specific information considered by the Owner to be confidential or proprietary.

14.6 Notices

Not Used

14.7 Survival

All express representations, waivers, indemnifications, and limitations of liability included in this Agreement will survive its completion or termination for any reason.

14.8 Waiver

A party’s non-enforcement of any provision shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement.

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14.9 Non-Discrimination

The Testing Agency agrees to abide by and be bound by Chapter 6-21 of the Code of Athens-Clarke County, Georgia, regarding Unlawful Discrimination and agrees to ensure that any and all subcontractors operating pursuant to this Agreement also agree to abide by and be bound by Chapter 6-21 of the Code of Athens-Clarke

County, Georgia.

14.10 Amendment

This Agreement may be amended or modified at any time prior to expiration of the original contract period by mutual written consent of the Parties hereto. Any such modification shall be signed by duly designated representatives of both Parties with the same level of formality as this Agreement.

14.11 Force Majeure

The Parties will not incur any liability to each other or to any other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control, and without the negligence of, the Parties. Such events, occurrences, or causes include, without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, floods, earthquakes, fires, and explosions.

14.12 Constituent of Concern

Any substance, product, waste, or other material of any nature whatsoever (including, but not limited to, Asbestos, Petroleum, Radioactive Material, and PCBs) which is or becomes listed, regulated, or addressed pursuant to [a] the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§9601 et seq. (“CERCLA”); [b] the Hazardous Materials Transportation Act, 49 U.S.C. §§1801 et seq.; [c] the Resource

Conservation and Recovery Act, 42 U.S.C. §§6901 et seq. (“RCRA”); [d] the Toxic Substances Control Act, 15

U.S.C. §§2601 et seq.; [e] the Clean Water Act, 33 U.S.C. §§1251 et seq.; [f] the Clean Air Act, 42 U.S.C. §§7401 et seq.; and [g] any other federal, state, or local statute, law, rule, regulation, ordinance, resolution, code, order, or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic, or dangerous waste, substance, or material.

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SIGNATURES ON FOLLOWING PAGE.)

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IN WITNESS…