Draft Agreement (PDF) _ Owner Modified DBIA 5.pdf

Owner Modified Version of DBIA Document No. 545 Page 1 Draft Form of Contract Agreement Between Owner and Design-Builder

DRAFT FORM OF AGREEMENT BETWEEN OWNER AND

DESIGN-BUILDER FOR PROGRESSIVE DESIGN-BUILD

SERVICES

Owner Modified Version of DBIA Document 545 ©Design-Build Institute of America, Washington, DC

This draft of proposed agreement is subject to modification as determined by Owner including, without limitation, revisions that may be necessary or appropriate in connection with applicable grant or other funding-related requirements.

Progressive Design-Build Agreement for Water and Wastewater Projects

This document has important legal consequences. Consultation with an attorney is recommended with respect to its completion or modification.

This AGREEMENT is made as of the day of in the year of 2024, by and between the following parties, for services in connection with the Project identified below:

OWNER:

(Name and address) Spalding County Water & Sewerage Facilities Authority, a public corporation established by Georgia legislation 119 E. Griffin Street Griffin, GA 30223

DESIGN-BUILDER:

(Name and address)

PROJECT:

(Include Project name and location as it will appear in the Contract Documents)

Progressive Design-Build Services for 2024 Sewer Implementation

In consideration of the mutual covenants and obligations contained herein, Owner and Design-Builder agree as set forth herein.

Owner Modified Version of DBIA Document No. 545 Page 2

Article 1

Design-Builder’s Services and Responsibilities

1.1 General Services.

1.1.1 Owner shall provide Design-Builder with Owner’s Project Criteria describing Owner’s program requirements and objectives for the Project as set forth in Exhibit A. Owner’s Project Criteria shall include Owner’s use, space, price, time, site, performance and expandability requirements.

Owner’s Project Criteria may include conceptual documents, design specifications, design performance specifications and other technical materials and requirements prepared by or for Owner.

1.1.2 If Owner’s Project Criteria have not been developed prior to the execution of this Agreement, Design-Builder will assist Owner in developing Owner’s Project Criteria, with such service deemed to be an additional service for which additional compensation shall be paid by Owner to Design-Builder. If Owner has developed Owner’s Project Criteria prior to executing this Agreement, Design-Builder shall review and prepare a written evaluation of such criteria, including recommendations to Owner for different and innovative approaches to the design and construction of the Project. The parties shall meet to discuss Design-Builder’s written evaluation of Owner’s Project Criteria and agree upon what revisions, if any, should be made to such criteria.

1.2 Phased Services.

1.2.1 Phase 1 Services. Design-Builder shall perform the services of design, pricing and other services for the Project based on Owner's Project Criteria, as may be revised in accordance with Section 1.1 hereof, and as set forth in Exhibit B, Scope of Services. Design-Builder shall perform such services to the level of completion required for Design-Builder and Owner to establish the Contract Price for Phase 2, as set forth in Section 1.3 below. The Contract Price for Phase 2 shall be developed during Phase 1 on an “open-book” basis. Design-Builder’s Compensation for Phase 1 Services is set forth in Section 6.0 herein. The level of completion required for Phase 1 Services is defined in Exhibit B, Scope of Services (either as a percentage of design completion or by defined deliverables).

1.2.2 Phase 2 Services. Design-Builder’s Phase 2 services shall consist of the completion of design services for the Project, the procurement of all materials and equipment for the Project, the performance of construction services for the Project, the start-up, testing and commissioning of the Project, and the provision of warranty services, all as further described in the Contract Price Amendment. Upon receipt of Design-Builder’s proposed Contract Price for Phase 2, Owner may proceed as set forth in Article 1.3.

1.3 Proposal. Upon completion of the Phase 1 Services and any other Basis of Design Documents upon which the parties may agree, Design-Builder shall submit a proposal to Owner (the “Proposal”) for the completion of the design and construction for the Project for the Contract Price, which may be based on Lump Sum or Design-Builder’s Fee and Cost of the Work with an option for a Guaranteed Maximum Price (GMP).

1.3.1 The Proposal shall include the following unless the parties mutually agree otherwise:

1.3.1.1 The Contract Price that may be based on a Lump Sum or Design-Builder’s Fee and Cost of the Work, with an option for a GMP, which shall be the sum of:

i Design-Builder’s Fee as defined in Section 6.4.1 hereof;

ii The estimated Cost of the Work as defined in Section 6.5 hereof, inclusive of any Design-Builder’s Contingency as defined in Section 6.6.2 hereof; and iii If applicable, any prices established under Section 6.1.3 hereof;

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1.3.1.2 The Basis of Design Documents, which may include, by way of example, Owner’s Project Criteria, which are set forth in detail and are attached to the Proposal;

1.3.1.3 A list of the assumptions and clarifications made by Design-Builder in the preparation of the Proposal, which list is intended to supplement the information contained in the drawings and specifications and is specifically included as part of the Basis of Design Documents;

1.3.1.4 The Scheduled Substantial Completion Date upon which the Proposal is based, to the extent said date has not already been established under Section 5.2.1 hereof, and a schedule upon which the Scheduled Substantial Completion Date is based and a Project Schedule for the Work;

1.3.1.5 If applicable, a list of Allowance Items, Allowance Values, and a statement of their basis;

1.3.1.6 If applicable, a schedule of alternate prices;

1.3.1.7 If applicable, a schedule of unit prices;

1.3.1.8 If applicable, a statement of Additional Services which may be performed but which are not included in the Proposal, and which, if performed, shall be the basis for an increase in the Contract Price and/or Contract Time(s);

1.3.1.9 If applicable, a Savings provision;

1.3.1.10 If applicable, Performance Incentives;

1.3.1.11 The time limit for acceptance of the Proposal; and

1.3.1.12 An Owner’s permit list, a list detailing the permits and governmental approvals that Owner will bear responsibility to obtain.

1.3.2 Review and Adjustment to Proposal.

1.3.2.1 After submission of the Proposal, Design-Builder and Owner shall meet to discuss and review the Proposal. If Owner has any comments regarding the Proposal, or finds any inconsistencies or inaccuracies in the information presented, it shall promptly give written notice to Design-Builder of such comments or findings. If appropriate, Design-Builder shall, upon receipt of Owner’s notice, make appropriate adjustments to the Proposal.

1.3.2.2 Acceptance of Proposal. If Owner accepts the Proposal, as may be amended by Design-Builder, the Contract Price and its basis shall be set forth in an amendment to this Agreement, when mutually agreed between the parties (Contract Price Amendment). Once the parties have agreed upon the Contract Price and Owner has issued a Notice to Proceed with Phase 2, Design-Builder shall perform the Phase 2 Services, all as further described in the Contract Price Amendment, as it may be revised.

1.3.2.3 Failure to Accept the Proposal. If Owner rejects the Proposal, or fails to notify Design- Builder in writing on or before the date specified in the Proposal that it accepts the Proposal, the Proposal shall be deemed withdrawn and of no effect. In such event, Owner and Design- Builder shall meet and confer as to how the Project will proceed, with Owner having the following options:

i Owner may suggest modifications to the Proposal, whereupon, if such modifications are accepted in writing by Design-Builder, the Proposal shall be deemed accepted and the parties shall proceed in accordance with Section 1.3.2.2 above;

Owner Modified Version of DBIA Document No. 545 Page 4 ii Owner may authorize Design-Builder to continue to proceed with the Work on the basis of reimbursement as provided in Section 6.1.2 hereof without a Contract Price, in which case all references in this Agreement to the Contract Price shall not be applicable;

or iii Owner may terminate this Agreement for convenience in accordance with Article 8 hereof; provided, however, in this event, Design-Builder shall not be entitled to the payment provided for in Section 8.2 hereof.

If Owner fails to exercise any of the above options, Design-Builder shall have the right to (a) continue with the Work as if Owner had elected to proceed in accordance with Section 1.3.2.2

ii. above, and be paid by Owner accordingly, unless and until Owner notifies it in writing to stop the Work; (b) suspend performance of Work in accordance with Section 11.3.1 of the General Conditions of Contract, provided, however, that in such event Design-Builder shall not be entitled to the payment provided for in Section 8.2 hereof; or (c) may give written notice to Owner that it considers this Agreement completed. If Owner fails to exercise any of the options under Section 1.3.2.3 within ten (10) days of receipt of Design-Builder’s notice, then this Agreement shall be deemed completed. If Owner terminates the relationship with Design- Builder under Section 1.3.2.3 (iii), or if this Agreement is deemed completed under this paragraph, then Design-Builder shall have no further liability or obligations to Owner under this Agreement.

Article 2

Contract Documents

2.1 The Contract Documents are comprised of the following:

2.1.1 All written modifications, amendments, minor changes and Change Orders to this Agreement issued in accordance with Owner Modified version of DBIA Document No. 535, Standard Form of General Conditions of Contract Agreement Between Owner and Design-Builder (2022 Edition) (“General Conditions of Contract”);

2.1.2 The Contract Price Amendment referenced in Section 1.3.2.2 herein or the Proposal accepted by Owner in accordance with Section 1.3 herein;

2.1.3 This Agreement, including all exhibits but excluding, if applicable, the Contract Price Amendment;

2.1.4 The General Conditions of Contract;

2.1.5 Construction Documents prepared and approved in accordance with Section 2.4 of the General Conditions of Contract;

2.1.6 Owner’s final RFP;

2.1.7 Design-Builder’s Proposal; and

2.1.8 The following other documents, if any:

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Article 3

Interpretation and Intent

3.1 Design-Builder and Owner, at the time of acceptance of the Proposal by Owner in accordance with Section 1.3 hereof, shall carefully review all the Contract Documents, including the various documents comprising the Basis of Design Documents for any conflicts or ambiguities. Design-Builder and Owner will discuss and resolve any identified conflicts or ambiguities prior to execution of the Agreement, or if applicable, prior to Owner’s acceptance of the Proposal.

3.2 The Contract Documents are intended to permit the parties to complete the Work and all obligations required by the Contract Documents within the Contract Time(s) for the Contract Price. The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with words and phrases interpreted in a manner consistent with construction and design industry standards. In the event inconsistencies, conflicts or ambiguities between or among the Contract Documents are discovered after Owner’s acceptance of the Proposal, Design-Builder and Owner shall attempt to resolve any ambiguity, conflict or inconsistency informally, recognizing that the Contract Documents shall take precedence in the order in which they are listed in Section 2.1 hereof. (Note, the parties are strongly encouraged to establish in the Contract Price Amendment or Proposal (as applicable) the priority of the various documents comprising such exhibit or proposal.)

3.3 Terms, words and phrases used in the Contract Documents, including this Agreement, shall have the meanings given them in the General Conditions of Contract.

3.4 If Owner’s Project Criteria contain design specifications: (a) Design-Builder is entitled to reasonably rely on the accuracy of the information represented in the design specifications and their compatibility with other information set forth in Owner’s Project Criteria, including any design performance specifications; and

(b) Design-Builder shall be entitled to an adjustment in its Contract Price and/or Contract Time(s) to the extent Design-Builder’s cost and/or time of performance have been adversely impacted by such inaccurate design specification.

3.5 The Contract Documents form the entire agreement between Owner and Design-Builder and by incorporation herein are as fully binding on the parties as if repeated herein. No oral representations or other agreements have been made by the parties except as specifically stated in the Contract Documents.

Article 4

Ownership of Work Product

4.1 Work Product. All reports, designs, drawings, plans, specifications, schedules, work product, and other materials, including those in electronic form, prepared or in the process of being prepared for the Work to be performed by the Design-Builder (“Work Product”) shall be the property of Owner, and Owner shall be entitled to full access and copies of all Work Product in the form prescribed by Owner. Any Work Product remaining in the hands of the Design-Builder or subcontractor upon completion or termination of the Work shall be delivered immediately to Owner whether or not the Project or Work is commenced or completed, provided, however, that Design-Builder may retain a copy of any deliverables for its records.

The Design-Builder assumes all risk of loss, damage or destruction of or to Work Product. If any items of Work Product are lost, damaged, or destroyed before final acceptance by Owner, the Design-Builder shall replace them at its own expense. Any and all copyrightable subject matter in all Work Product is hereby assigned to Owner, and the Design-Builder agrees to execute any additional documents that may be necessary to evidence such assignment.

4.2 Owner agrees not to use any Work Product of Design-Builder produced under this Agreement for any purpose other than the Work, unless separately identified in advance, and agreed to in writing by Design-Builder, for any such separate purpose defined by such written agreement.

Owner Modified Version of DBIA Document No. 545 Page 6

Article 5

Contract Time

5.1 Date of Commencement. The Phase 1 Services shall commence within five (5) days of Design- Builder’s receipt of Owner’s Notice to Proceed unless the parties mutually agree otherwise in writing. The Work shall commence within five (5) days of Design-Builder’s receipt of Owner’s Notice to Proceed for Phase 2 Services (“Date of Commencement”) if the Proposal is accepted and the Contract Price Amendment is amended to this Agreement unless the parties mutually agree otherwise in writing.

5.2 Substantial Completion and Final Completion.

5.2.1 Substantial Completion of Phase I shall be defined to expressly include, but not be limited to, receipt by Owner of Design-Builder’s Phase 2 Proposal as described in Section 1.3, which Proposal must be achieved by a date certain of October 1, 2024.

Substantial Completion of the entire Work shall be achieved no later than [a date certain of _________, OR ( ) calendar days after the Date of Commencement of Phase 2] (“Scheduled Substantial Completion Date”).

Substantial Completion of the Work including Phase 2, or an interim milestone established within Phase 2 in the Proposal and adopted in the Contract Modification incorporating Phase 2, is sufficiently complete in accordance with the Contract Documents so that Owner can occupy and/or use the Project or a portion thereof for its intended purposes.

5.2.2 Interim milestones and/or Substantial Completion of identified portions of the Work other than Phase 1 shall be achieved as follows: (Insert any interim milestones (“Scheduled Interim Milestone Dates”) for portions of the Work with different scheduled dates for Substantial Completion.)

5.2.3 Final Completion of the Work or identified portions of the Work shall be achieved as expeditiously as reasonably practicable. Final Completion is the date when all Work is complete pursuant to the definition of Final Completion set forth in Section 1.2.8 of the General Conditions of Contract.

5.2.4 All of the dates set forth in this Article 5 (“Contract Time(s)”) shall be subject to adjustment in accordance with the General Conditions of Contract.

5.3 Time is of the Essence. Owner and Design-Builder mutually agree that time is of the essence with respect to the dates and times set forth in the Contract Documents.

5.4 Liquidated Damages. Design-Builder understands that if Substantial Completion of Phase 1 is not attained by the Scheduled Substantial Completion Date, Owner will suffer damages which are difficult to determine and accurately specify. Design-Builder agrees that if Substantial Completion of Phase 1 is not attained by the date certain of October 1, 2024 as noted in Section 5.2.1 above, Design-Builder shall pay Owner One Thousand Dollars ($1,000) as liquidated damages for each day that Substantial Completion of Phase 1 extends beyond the Scheduled Phase 1 Substantial Completion Date.

Design-Builder understands that if Substantial Completion of the Work, including Phase 2, is not attained by the Scheduled Substantial Completion Date, Owner will suffer damages which are difficult to determine and accurately specify. Design-Builder agrees that if Substantial Completion of the Work, including Phase 2, is not attained by the date certain of _________ , or within _______ (_____) days of Notice to Proceed for Phase 2, Design-Builder shall pay Owner One Thousand Dollars ($1,000) as liquidated damages for each day that Substantial Completion of the Work, including Phase 2, extends beyond the Scheduled Phase 2 Substantial Completion Date.

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Design-Builder understands that if Final Completion, including Phase 2, is not achieved by a date certain of ______, or within ________ (___) days of Substantial Completion Date, Owner will suffer damages which are difficult to determine and accurately specify. Design-Builder agrees that if Final Completion is not achieved by the date certain of _______, or within ____________ (___) days of Substantial Completion, Design-Builder shall pay to Owner One Thousand Dollars ($1,000), as liquidated damages for each calendar day that Final Completion is delayed beyond the Scheduled Phase 2 Final Completion date.

5.5 Any liquidated damages assessed pursuant to this Agreement shall be in lieu of all liability for any and all extra costs, losses, expenses, claims, penalties and any other damages, whether special or consequential, and of whatsoever nature, incurred by Owner which are occasioned by any delay in achieving Substantial Completion, Interim Milestone Dates (if any) or Final Completion.

5.6 Owner’s Review Time. The parties have established the following maximum and minimum amount of time for Owner to review Design Submissions and the Project Schedule or any updates thereto unless the parties agree in writing otherwise.

5.6.1 Owner shall have a minimum of 7 working days (exclusive of Owner holidays) of receipt by Owner to review all Design Submissions, the Project Schedule, and any updates thereto.

5.6.2 Owner shall review and (if applicable) provide a response to Design-Builder on all Design Submissions, the Project Schedule and any updates thereto within 10 working days (excluding Owner holidays) of receipt by Owner.

Article 6

Contract Price

6.1 Contract Price.

6.1.1 Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract the sum of ____________________________________________ Dollars ($_______) for the Phase 1 Services, subject to adjustments made in accordance with the General Conditions of Contract. Unless otherwise provided in the Contract Documents, the Phase 1 Services compensation is deemed to include all sales, use, consumer and other taxes mandated by applicable Legal Requirements. The basis of all costs for Phase I shall be delineated in Exhibit C, Contract Pricing.

6.1.2 For Phase 2 Services, Exhibit C shall be updated as required, and Owner shall pay Design- Builder in accordance with Article 6 of the General Conditions of Contract a contract price (“Contract Price”) equal to the Lump Sum amount set forth in Section 6.2 hereof or in the Contract Price Amendment, or equal to Design-Builder’s Fee (as defined in Section 6.4 hereof) plus the Cost of the Work (as defined in Section 6.5 hereof), subject to any GMP established in Section 6.6 hereof or as set forth in the Contract Price Amendment and any adjustments made in accordance with the General Conditions of Contract.

6.1.3 For the specific Work set forth below, Owner agrees to pay Design-Builder, as part of the Contract Price, on the following basis: (This is an optional section intended to provide the parties with flexibility to identify and price limited services.)

6.2 Lump Sum. Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract the sum of _________________________________________ Dollars ($_________) (“Contract Price”) for the Work for Phase 2 Services, subject to adjustments made in accordance with the General Conditions of Contract. Unless otherwise provided in the Contract Documents, the Contract Price is deemed to include all sales, use, consumer and other taxes mandated by applicable Legal Requirements.

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6.3 Markups for Changes. If the Contract Price requires an adjustment due to changes in the Work, and the cost of such changes is determined under Sections 9.4.1.3 or 9.4.1.4 of the General Conditions of Contract, the following markups shall be allowed on such changes:

6.3.1 For additive Change Orders, including additive Change Orders arising from both additive and deductive items, it is agreed that Design-Builder shall receive a Fee of _________ percent (____ %) of the additional costs incurred for that Change Order, plus any other markups set forth at Exhibit C hereto.

6.3.2 For deductive Change Orders, including deductive Change Orders arising from both additive and deductive items, the deductive amounts shall include:

[Check one box only.]

No additional reduction to account for Design-Builder’s Fee or any other markup.

or

An amount equal to the sum of: (a) percent (__________%) applied to the direct costs of the net reduction (which amount will account for a reduction associated with Design-Builder’s Fee); plus (b) any other markups set forth at Exhibit C hereto applied to the direct costs of the net reduction.

6.4 Design-Builder’s Fee.

6.4.1 Design-Builder’s Fee shall be:

[Choose one of the following:]

Dollars ($ ), as adjusted in accordance with Section 6.4.2 below.

or percent ( %) of the Cost of the Work, as adjusted in accordance with Section 6.4.2 below.

6.4.2 Design-Builder’s Fee will be adjusted as follows for any changes in the Work:

6.4.2.1 For additive Change Orders, including additive Change Orders arising from both additive and deductive items, it is agreed that Design-Builder shall receive a Fee of percent ( %) of the additional Costs of the Work incurred for that Change Order, plus any other markups set forth at Exhibit C hereto.

6.4.2.2 For deductive Change Orders, including deductive Change Orders arising from both additive and deductive items, the deductive amounts shall include:

[Check one box only.]

No additional reduction to account for Design-Builder’s Fee or any other markup.

An amount equal to the sum of: (a) ___________ percent (____%) applied to the direct costs of the net reduction (which amount will account for a reduction associated with Design- Builder’s Fee); plus (b) any other markups set forth at Exhibit C hereto applied to the direct costs of the net reduction.

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6.5 Cost of the Work.

6.5.1 The term Cost of the Work shall mean costs reasonably incurred by Design-Builder in the proper performance of the Work. The Cost of the Work shall include only the following:

6.5.1.1 Wages of direct employees of Design-Builder performing the Work at the Site or, with Owner’s agreement, at locations off the Site, provided, however, that the costs for those employees of Design-Builder performing design services shall be calculated on the basis of prevailing market rates for design professionals performing such services or, if applicable, those rates set forth in an exhibit to this Agreement.

6.5.1.2 Wages or salaries of Design-Builder’s supervisory and administrative personnel engaged in the performance of the Work and who are located at the Site or working off-Site to assist in the production or transportation of material and equipment necessary for the Work.

6.5.1.3 Wages or salaries of Design-Builder’s personnel stationed at Design-Builder’s principal or branch offices, but only to the extent said personnel are identified in, perform the function set forth in, and are compensated as described in Exhibit C.

6.5.1.4 Costs incurred by Design-Builder for employee benefits, premiums, taxes, insurance, contributions and assessments required by law, collective bargaining agreements or which are customarily paid by Design-Builder, to the extent such costs are based on wages and salaries paid to employees of Design-Builder covered under Sections 6.5.1.1 through

6.5.1.3 hereof.

6.5.1.5 The reasonable portion of the cost of travel, accommodations and meals for Design- Builder’s personnel necessarily and directly incurred in connection with the performance of the Work.

6.5.1.6 Payments properly made by Design-Builder to Subcontractors and Design Consultants for performance of portions of the Work, including any insurance and bond premiums incurred by Subcontractors and Design Consultants.

6.5.1.7 Costs incurred by Design-Builder in repairing or correcting defective, damaged or nonconforming Work (including any warranty or corrective Work performed after Substantial Completion), provided that such Work was beyond the reasonable control of Design-Builder, or caused by the ordinary mistakes or inadvertence, and not the negligence, of Design-Builder or those working by or through Design-Builder. If the costs associated with such Work are recoverable from insurance, Subcontractors or Design Consultants, Design-Builder shall exercise best efforts to obtain recovery from the appropriate source and provide a credit to Owner if recovery is obtained.

6.5.1.8 Costs, including transportation, inspection, testing, storage and handling of materials, equipment and supplies incorporated or reasonably used in completing the Work.

6.5.1.9 Costs less salvage value of materials, supplies, temporary facilities, machinery, equipment and hand tools not customarily owned by the workers that are not fully consumed in the performance of the Work and which remain the property of Design-Builder, including the costs of transporting, inspecting, testing, handling, installing, maintaining, dismantling and removing such items.

6.5.1.10 Costs of removal of debris and waste from the Site.

6.5.1.11 The reasonable costs and expenses incurred in establishing, operating and demobilizing the Site office, including the cost of facsimile transmissions, long-distance telephone calls, postage and express delivery charges, telephone service, photocopying and reasonable petty cash expenses.

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6.5.1.12 Rental charges and the costs of transportation, installation, minor repairs and replacements, dismantling and removal of temporary facilities, machinery, equipment and hand tools not customarily owned by the workers, which are provided by Design-Builder at the Site, whether rented from Design-Builder or others, and incurred in the performance of the Work.

The total rental charge or cost of any Design-Builder-owned item may not exceed the purchase price of any comparable item. Rental rates of Design-Builder-owned equipment and quantities of equipment shall be subject to the Owner’s prior written approval.

6.5.1.13 Premiums for insurance and bonds required by this Agreement or the performance of the Work.

6.5.1.14 All fuel and utility costs incurred in the performance of the Work.

6.5.1.15 Sales, use or similar taxes, tariffs or duties incurred in the performance of the Work.

6.5.1.16 Reserved.

6.5.1.17 Costs for permits, royalties, licenses, tests and inspections incurred by Design- Builder as a requirement of the Contract Documents.

6.5.1.18 Reserved.

6.5.1.19 Deposits which are lost, except to the extent caused by Design-Builder’s negligence.

6.5.1.20 Costs incurred in preventing damage, injury or loss in case of an emergency affecting the safety of persons and property.

6.5.1.21 Accounting and data processing costs related to the Work.

6.5.1.22 Other costs reasonably and properly incurred in the performance of the Work to the extent approved in writing by Owner.

[Design-Builder and Owner may want to consider adding the following Section

6.5.1.23 to address the payment of warranty work:]

Owner and Design-Builder agree that an escrow account in the amount of Dollars ($ ) shall be established prior to Final Completion, which escrow shall be used to reimburse Design-Builder for the Costs of the Work incurred after Final Completion to perform warranty Work. The escrow agreement will provide that any sums not used at the expiration of the warranty period shall be returned to Owner, subject to any savings Design-Builder may be entitled to under this Agreement.

In the event the warranty escrow account is exhausted, but funds remain under the GMP, Owner shall be obligated to pay Design-Builder the Costs of the Work incurred after Final Completion to perform warranty Work up to the GMP.

6.5.2 Non-Reimbursable Costs. The following shall be excluded from the Cost of the Work:

6.5.2.1 Compensation for Design-Builder’s personnel stationed at Design-Builder’s principal or branch offices, except as provided for in Sections 6.5.1.1 through 6.5.1.4 hereof.

6.5.2.2 Overhead and general expenses, except as provided for in Section 6.5.1 hereof, or which may be recoverable for changes to the Work.

6.5.2.3 The cost of Design-Builder’s capital used in the performance of the Work.

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6.5.2.4 If the parties have agreed on a GMP, costs that would cause the GMP, as adjusted in accordance with the Contract Documents, to be exceeded.

6.5.2.5 Any cost not specifically and expressly described in or reasonably inferable from Section 6.5.1 above.

6.5.2.6 Cost for services or Work incurred in the performance of Phase I Services.

6.5.2.7 Bonuses, profit sharing, incentive compensation and any other discretionary payments paid to anyone hired by the Design-Builder or paid to any subcontractor or consultant.

6.5.2.8 The costs of any fines, re-inspection fees and penalties, including interest thereon, assessed against Design-Builder by any federal, state or local governmental or quasi-governmental authority attributable to the fault or responsibility of the Design-Builder.

6.5.2.9 The costs of any liability, taxes, charges, or contributions attributable to Design- Builder’s failure to make timely disbursements to or failure to pay its subcontractors or consultants

[The parties shall comply with the following Section 6.6 based upon whether the GMP is agreed upon before the execution of this Agreement or will be developed and agreed upon after execution of this Agreement. If the parties do not use a GMP, this Section 6.5 shall be deemed inapplicable and compensation to Design-Builder shall be based on those fees and costs identified in the balance of this Article 6.]

6.6 The Guaranteed Maximum Price.

6.6.1 Design-Builder guarantees that it shall not exceed the GMP of ______ Dollars ($ ). Documents used as a basis for the GMP shall be identified in the Contract Price Amendment to this Agreement. Design-Builder does not guarantee any specific line item provided as part of the GMP, and has the sole discretion to apply payment due to overruns in one line item to savings due to underruns in any other line item. Design-Builder agrees, however, that it will be responsible for paying all costs of completing the Work which exceed the GMP, as adjusted in accordance with the Contract Documents. (While the Contract Price Amendment will be developed in advance or concurrently with the execution of this Agreement, it is recommended that such exhibit include the items set forth in Section 1.3 above, to ensure that the basis for the GMP is well understood.)

6.6.2 The GMP includes a Contingency in the amount of

Dollars ($ ) which is available for Design-Builder’s exclusive use for unanticipated costs it has incurred that are not the basis for a Change Order under the Contract Documents. By way of example, and not as a limitation, such costs may include: (a) trade buy-out differentials; (b) overtime or acceleration; (c) escalation of materials; (d) correction of defective, damaged or nonconforming Work, design errors or omissions, however caused; (e) Subcontractor defaults; or (f) those events under Section 8.2.2 of the General Conditions of Contract that result in an extension of the Contract Time but do not result in an increase in the Contract Price. The Contingency is not available to Owner for any reason, including changes in scope or any other item which would enable Design-Builder to increase the GMP under the Contract Documents. Design-Builder shall provide Owner notice of all anticipated charges against the Contingency, and shall provide Owner as part of the monthly status report required by Section 2.1.2 of the General Conditions of Contract an accounting of the Contingency, including all reasonably foreseen uses or potential uses of the Contingency in the upcoming three (3) months. Design-Builder agrees that with respect to any expenditure from the Contingency relating to a Subcontractor default or an event for which insurance or bond may provide reimbursement, Design-Builder will in good faith exercise reasonable steps to obtain performance from the Subcontractor and/or recovery from any surety or insurance company.

Design-Builder agrees that if Design-Builder is subsequently reimbursed for said costs, then said recovery will be credited back to the Contingency.

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6.6.3 Savings.

6.6.3.1 If the sum of the actual Cost of the Work and Design-Builder’s Fee (and, if applicable, any prices established under Section 6.1.3 hereof) is less than the GMP, as such GMP may have been adjusted over the course of the Project, the difference (“Savings”) shall be shared as follows:

[Choose one of the following:] percent ( %) to Design-Builder and percent ( %) to Owner.

The first Dollars ($ ) of Savings shall be provided to (choose either Design-Builder or Owner) , with the balance of Savings, if any, shared percent ( %) to Design-Builder and percent ( %) to Owner.

6.6.3.2 Savings shall be calculated and paid as part of Final Payment under Section 7.4 hereof, with the understanding that to the extent Design-Builder incurs costs after Final Completion which would have been payable to Design-Builder as a Cost of the Work, the parties shall recalculate the Savings in light of the costs so incurred, and Design-Builder shall be paid by Owner accordingly.

6.7 Allowance Items and Allowance Values.

6.7.1 Any and all Allowance Items, as well as their corresponding Allowance Values, are set forth in the Contract Price Amendment or the Proposal.

6.7.2 Design-Builder and Owner have worked together to review the Allowance Items and Allowance Values based on design information then available to determine that the Allowance Values constitute reasonable estimates for the Allowance Items. Design-Builder and Owner will continue working closely together during the preparation of the design to develop Construction Documents consistent with the Allowance Values. Nothing herein is intended in any way to constitute a guarantee by Design- Builder that the Allowance Item in question can be performed for the Allowance Value.

6.7.3 No work shall be performed on any Allowance Item without Design-Builder first obtaining in writing advance authorization to proceed from Owner. Owner agrees that if Design-Builder is not provided written authorization to proceed by the date set forth in the Project schedule, due to no fault of Design-Builder, Design-Builder may be entitled to an adjustment of the Contract Time(s) and Contract Price.

6.7.4 The Allowance Value includes the direct cost of labor, materials, equipment, transportation, taxes and insurance associated with the applicable Allowance Item. All other costs, including design fees, Design-Builder’s overall project management and general conditions costs, overhead and Fee, are deemed to be included in the original Contract Price, and are not subject to adjustment notwithstanding the actual amount of the Allowance Item.

6.7.5 Whenever the actual costs for an Allowance Item is more than or less than the stated Allowance Value, the Contract Price shall be adjusted accordingly by Change Order, subject to Section 6.7.4. The amount of the Change Order shall reflect the difference between actual costs incurred by Design-Builder for the particular Allowance Item and the Allowance Value.

Owner Modified Version of DBIA Document No. 545 Page 13

6.8 Performance Incentives.

6.8.1 Owner and Design-Builder have agreed to the performance incentive arrangements set forth in Exhibit D.

Article 7

Procedure for Payment

7.1 Payment for Preliminary Services. Design-Builder and Owner agree upon the following method for partial and final payment to Design-Builder for the services hereunder: Net 30 days after acceptance of approved request, less retainage and disputed amounts, as described herein.

7.2 Contract Price Progress Payments.

7.2.1 Design-Builder shall submit to Owner on the twenty fifth (25th) day of each month, beginning with the first month after the Date of Commencement, Design-Builder’s Application for Payment in accordance with Article 6 of the General Conditions of Contract.

7.2.2 Owner shall make payment within thirty (30) days after Owner’s receipt of each properly submitted and accurate Application for Payment, including completed Waiver and Release per Exhibit E, in accordance with Article 6 of the General Conditions of Contract, but in each case less the total of payments previously made, and less amounts properly withheld under Section 6.3 of the General Conditions of Contract.

7.2.3 If Design-Builder’s Fee under Section 6.4 hereof is a fixed amount, the amount of Design- Builder’s Fee to be included in Design-Builder’s monthly Application for Payment and paid by Owner shall be proportional to the percentage of the Work completed, less payments previously made on account of Design-Builder’s Fee.

7.3 Retainage on Progress Payments.

7.3.1 Owner will retain 5 percent (5%) of each Application for Payment pursuant to applicable law. When fifty percent (50%) of the Work has been satisfactorily completed by Design-Builder and Design-Builder is otherwise in compliance with its contractual obligations, Owner will reasonably consider, consistent with applicable law, reducing retention from Design-Builder’s subsequent Applications for Payment. Owner will also reasonably consider reducing retainage for Work completed early in the Project.

7.3.2 At Substantial Completion of the Work and as the Owner determines the Work to be reasonably satisfactory, the Owner shall, within thirty (30) days after the Application for Payment and other appropriate documentation as may be required by the Contract Documents are provided to the Owner, pay the retainage to the Design-Builder. If at that time there are any remaining incomplete or nonconforming items or Work, an amount equal to two hundred percent (200%) of the value of each item or Work as determined by the Owner shall be withheld until such item, items, or Work are completed. The balance of the Work to be completed and any required retainage to be withheld shall be documented on the Certificate of Substantial Completion. The reduced retainage shall be shared by the Design-Builder and Subcontractors as their interests may appear.

7.4 Final Payment. Design-Builder shall submit its Final Application for Payment to Owner, including completed Waiver and Release per Exhibit E, in accordance with Section 6.7 of the General Conditions of Contract. Owner shall make payment on Design-Builder’s properly submitted and accurate Final Application for Payment (less any amount the parties may have agreed to set aside for warranty work) within thirty (30) days after Owner’s receipt of the Final Application for Payment, provided that Design-Builder has satisfied the requirements for final payment set forth in Section 6.7.2 of the General Conditions of Contract.

Owner Modified Version of DBIA Document No. 545 Page 14

7.5 Reserved.

7.6 Record Keeping and Finance Controls. Design-Builder acknowledges that this Agreement is to be administered on an “open book” arrangement relative to Costs of the Work. Design-Builder shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management, using accounting and control systems in accordance with generally accepted accounting principles and as may be provided in the Contract Documents. During the performance of the Work and for a period of ten

(10) years after Final Payment, Owner and Owner’s accountants shall be afforded access to, and the right to audit from time to time, upon reasonable notice, Design-Builder’s records, books, correspondence, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to the Work, all of which Design-Builder shall preserve for a period of ten (10) years after Final Payment. Such inspection shall take place at Design-Builder’s offices during normal business hours unless another location and time is agreed to by the parties. Any multipliers or markups agreed to by Owner and Design-Builder as part of this Agreement are subject to audit. Any lump sum agreed to by Owner and Design-Builder as part of this Agreement is not subject to audit, except as necessary and required to fulfill and verify Grant Funding Requirements.

7.7 Georgia Prompt Pay Act Waived Where Inconsistent. Owner and Design-Builder expressly agree that the terms of payment set forth in this Article 7 shall control to the exclusion of any contradictory provisions set forth in the Georgia Prompt Pay Act, O.C.G.A. § 13-11-1, et seq.

Article 8

Termination for Convenience

8.1 Upon seven (7) days’ written notice to Design-Builder, Owner may, for its convenience and without cause, elect to terminate this Agreement. Upon receipt of Owner’s written notice, Design-Builder shall cease performance of Work as directed by Owner, take measures necessary to preserve the Work already performed and protect it from damage, decay and waste; and, except for Work directed to be performed prior to the effective date of termination, terminate all existing contracts, subcontracts, purchase orders and like obligations made in connection with the Work. In such event, Owner shall pay Design-Builder for the following:

8.1.1 All Work executed prior to the date of termination in accordance with the Contract Documents;

and

8.1.2 The reasonable costs and expenses attributable to such termination, as determined by Owner at its sole discretion.

8.2 If Owner elects to terminate the Work for convenience as provided in Section 8.1 above, the compensation set forth in that section shall be Design-Builder’s sole and exclusive remedy for such termination. Design-Builder acknowledges and agrees that in the event of such termination it shall not be entitled to recover additional compensation or damages beyond the compensation allotted in Section 8.1, including, but not limited to, overhead and profit on Work not executed, damage to reputation, costs of lost opportunities and lost or anticipated profits on other projects or opportunities.

Article 9

Representatives of the Parties

9.1 Owner’s Representatives.

9.1.1 Owner designates the individual listed below as its Senior Representative (“Owner’s Senior Representative”), which individual has the authority and responsibility for avoiding and resolving

Owner Modified Version of DBIA Document No. 545 Page 15 disputes under Section 10.2.3 of the General Conditions of Contract: (Identify individual’s name, title, address, email, and telephone numbers.)

9.1.2 Owner designates the individual listed below as its Owner’s Representative, which individual has the authority and responsibility set forth in Section 3.4 of the General Conditions of Contract: (Identify individual’s name, title, address, email, and telephone numbers.)

9.2 Design-Builder’s Representatives.

9.2.1 Design-Builder designates the individual listed below as its Senior Representative (“Design-Builder’s Senior Representative”), which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract: (Identify individual’s name, title, address, email, and telephone numbers.)_________________________________________________

9.2.2 Design-Builder designates the individual listed below as its Design-Builder’s Representative, which individual has the authority and responsibility set forth in Section 2.1.1 of the General Conditions of Contract: (Identify individual’s name, title, address, email, and telephone numbers.)

Article 10

Bonds and Insurance

10.1 Insurance. Design-Builder shall procure the insurance coverages set forth in the attached Exhibit F, Insurance Requirements, and in accordance with Article 5 of the General Conditions of Contract.

10.2 Bonds and Other Performance Security. Design-Builder shall provide the performance bond and labor and material payment bond, and other required performance security, in accordance with Article 5 of the General Conditions of the Contract and Exhibit G.

Article 11

Other Provisions

11.1 Other provisions, if any, are as follows: (Insert any additional provisions.)

11.1.1 Statutory Auto-Termination and Renewal. As required by O.C.G.A. § 36-60-13, this Agreement shall terminate absolutely and without any further obligation on the part of Owner on the last day of each fiscal year of the initial term and any renewal or extended term, and further, 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, absent Owner’s provision of written notice of non-renewal to Design-Builder at least thirty (30) days prior to the end of the then-current fiscal year.

Additionally, this Agreement shall terminate immediately and absolutely at such time as appropriated and otherwise unobligated funds are no longer available to satisfy Owner’s obligations under this Agreement.

11.1.2 Confidentiality. Design-Builder acknowledges that Owner’s disclosure of documentation is governed by Georgia’s Open Records Act and the Open Meetings Act, and Design-Builder further acknowledges that if Design-Builder submits documents or records, including, without limitation, any document comprising part of this Agreement, containing trade secret information, and if Design- Builder wishes to keep such documents or records confidential, Design-Builder must submit and

Owner Modified Version of DBIA Document No. 545 Page 16 attach to such documents or records an affidavit affirmatively declaring that specific information contained therein constitutes trade secrets pursuant to Article 27 of Chapter 1 of Title 10, and the parties shall follow the requirements of O.C.G.A. § 50-18-72(a)(34) related thereto.

11.1.3 Statutory Compliance. Pursuant to O.C.G.A. § 36-80-28, Design-Builder hereby represents to and agrees with Owner as follows:

11.1.3.1 Design-Builder shall avoid any appearance of impropriety and shall follow all policies and procedures of Owner;

11.1.3.2 With the exception of economic development activities that are confidential pursuant to O.C.G.A. Title 50, Chapter 18, Article 4, Design-Builder shall immediately disclose to Owner any material transaction or relationship, including, but not limited to, that of the Design-Builder, the Design-Builder’s employees, or the Design-Builder’s agents or subsidiaries, that reasonably could be expected to give rise to a conflict of interest, including, but not limited to, past, present, or known prospective engagements, involvement in litigation or other dispute, client relationships, or other business or financial interest, and shall immediately disclose to Owner any material transaction or relationship subsequently discovered during the pendency of this Agreement; and

11.1.3.3 Design-Builder acknowledges that any violation or threatened violation of this Agreement may cause irreparable injury to the Owner entitling the Owner to seek injunctive relief in addition to all other legal remedies.

11.1.4 Taxes. Owner is a City, County and State tax-exempt entity and shall not be responsible for paying any such taxes on any materials or services provided for in this Agreement. At Design- Builder’s request, Owner shall provide evidence of its tax-exempt status. To the extent, if any, that the Owner furnishes tangible personal property to Design-Builder for incorporation into the Project, Design-Builder shall be responsible for paying the amount of tax owed for such tangible personal property.

11.