Standard Form Fixed Price Cont

STANDARD FORM OF

FIXED PRICE CONSTRUCTION CONTRACT

BETWEEN

THE WALKER COUNTY BOARD OF EDUCATION

AND

[Contractor]

PROJECT:

Address:

ARCHITECT:

Architect’s

Address:

T A B L E O F C O N T E N T S

ARTICLE 1

DOCUMENTS INCORPORATED BY REFERENCE

ARTICLE 2

REPRESENTATIONS OF THE CONTRACTOR

2.1 Generally

2.2 Qualification Information

ARTICLE 3

CONTRACT CONSTRUCTION

3.1 Intent and Interpretation

3.2 Ownership

ARTICLE 4

CONTRACTOR'S PERFORMANCE

4.1 Generally

ARTICLE 5

TIME FOR CONTRACTOR'S PERFORMANCE

5.1 Time for Performance

5.2 Liquidated Damages for Delay

5.3 Substantial Completion

5.4 Time is of the Essence

ARTICLE 6

FIXED PRICE AND CONTRACT PAYMENTS

6.1 Contract Price

6.2 Schedule of Values

6.3 Payment Procedures

6.4 Payments by Contractor

6.5 No Acceptance of Work 6.6 Refusal to Make Payment 6.7 Untimely Payments

6.8 Inspection and Payment at Substantial Completion

6.9 Final Completion

6.10 Final Inspection; Final Approval for Payment

6.11 Time for Final Completion; Liquidated Damages for Delay in Final Completion

6.12 Conditions Precedent to Final Payment

6.13 Final Payment

ARTICLE 7

INFORMATION AND MATERIAL SUPPLIED BY THE OWNER

7.1 Generally

7.2 Easements

7.3 Contract Copies

ARTICLE 8

CEASE AND DESIST ORDER

ARTICLE 9

DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE CONTRACTOR

9.1 Generally

9.2 Warranty

9.3 Schedule for Completing Work

9.4 Storm Water Discharge Permits ……………………………………………………….. 12

ARTICLE 10

INDEMNITY

ARTICLE 11

THE PROJECT ARCHITECT

11.1 Architect

ARTICLE 12

CLAIMS BY THE CONTRACTOR

12.1 Generally

12.2 Delays Generally

12.3 Mediation

ARTICLE 13

SUBCONTRACTORS

ARTICLE 14

CHANGE ORDERS

14.1 Generally

ARTICLE 15

DISCOVERING AND CORRECTING DEFECTIVE OR INCOMPLETE WORK

15.1 Work in Violation of Contract

15.2 Work in Conformity with Contract

15.3 Defective or Nonconforming Work

15.4 Duty to Correct Defective or Nonconforming Work

15.5 Owner’s Option

ARTICLE 16

TERMINATION BY THE CONTRACTOR

ARTICLE 17

OWNER'S RIGHT TO SUSPEND CONTRACTOR'S PERFORMANCE

17.1 Suspension

17.2 Compensation

ARTICLE 18

TERMINATION BY THE OWNER

18.1 Termination for Convenience

18.2 Termination for Cause

18.3 Termination Not Subject to Article 12

ARTICLE 19

INSURANCE

ARTICLE 20

SURETY BONDS

ARTICLE 21

PROJECT RECORDS

ARTICLE 22

APPLICABLE LAW

ARTICLE 23

SUCCESSORS AND ASSIGNS

EXHIBIT A

LIST OF PLANS AND SPECIFICATIONS FOR THE PROJECT

EXHIBIT B LIQUIDATED DAMAGES

EXHIBIT C

MINIMUM REQUIREMENTS FOR CONTRACTOR’S SCHEDULE OF

CONSTRUCTION

EXHIBIT D

REQUIRED INSURANCE

EXHIBIT D - 1

ENDORSEMENT TO BUILDER’S RISK

EXHIBIT E

IMMIGRATION AND SECURITY FORM

This FIXED PRICE CONSTRUCTION CONTRACT (the "Contract") is made and entered into by and between THE WALKER COUNTY BOARD OF EDUCATION (the “Owner”) and ____________________________________________________________________________________ (the "Contractor"). This Contract is executed under seal, and shall be effective on the date executed by the last party to execute it.

This Contract is for the construction of a project identified as _____________________________

___________________________________________________________ (the "Project").

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements stated herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:

ARTICLE 1

DOCUMENTS INCORPORATED BY REFERENCE

This Contract includes this instrument, all exhibits hereto, the plans and specifications for the Project identified thereon as such, the Contractor’s Bid or Proposal (as applicable), Supplemental Conditions, if any, Special Conditions, if any, and all Addenda issued prior to execution of the Contract, if any, plus the following (if any):

all of which are hereby incorporated herein by reference and made a part hereof. Attached hereto as Exhibit “A” is a list of the plans and specifications for the Project. Change Orders issued hereafter, and any other amendments executed by the Owner and the Contractor, shall become and be a part of this Contract. Documents not included or expressly contemplated in this Article 1 do not, and shall not, form any part of this Contract. The Contract, of which this instrument is a part, may sometimes be referred to as the “Contract Documents.”

ARTICLE 2

REPRESENTATIONS OF THE CONTRACTOR

2.1 Generally. In order to induce the Owner to execute this Contract and recognizing that the Owner is relying thereon, and without limiting or restricting any other representation or warranty set forth elsewhere or implied by law, the Contractor, by executing this Contract, makes the following express representations and warranties to the Owner:

2.1.1 The Contractor is fully qualified to act as the contractor for the Project and has, and shall maintain, any and all licenses, permits or other authorizations necessary to act as the contractor for, and to construct, the Project.

2.1.2 The Contractor has visited, inspected and become familiar with the Project site and the local conditions under which the Project is to be constructed and operated.

2.1.3 The Contractor has received, reviewed and carefully examined all of the documents which make up this Contract, including, but not limited to, the plans and specifications, and believes them in all respects to be complete, accurate, adequate, consistent, coordinated and sufficient for construction.

2.2 Qualification Information. The Contractor represents, warrants and affirms that only truthful, complete and correct information has been provided to the Owner with the Contractor’s Bid or Proposal (as applicable), and in any other communication from the Contractor regarding the Contractor’s qualifications or responsibility to perform the obligations of the Contractor under this Contract (all such information being referred to herein as “Qualification Information”). The Contractor further represents, warrants and affirms that in the event that any Qualification Information changed in any material way after it was communicated from the Contractor and before this Contract is signed by all parties, the Contractor has immediately notified the Owner, in writing, of such change or changes and Contractor agrees that Owner may take such action thereon as Owner deems appropriate. The Contractor acknowledges and agrees that the Owner has relied, and will continue to rely, on the truthfulness, completeness and correctness of the Qualification Information. The Contractor acknowledges and agrees that all Qualification Information is material and important to the Owner’s evaluation of the Contractor’s qualifications and responsibility to undertake the Contractor’s obligations under this Contract. Contractor acknowledges and agrees that if the Contractor knowingly provided any false, incorrect, misleading or incomplete information to the Owner in any Qualification Information, or failed to advise the Owner in writing of any material change in such information as set forth in this Paragraph, this Contract shall be deemed to be materially breached by Contractor and subject to immediate termination for cause or rescission for cause by the Owner, at the sole option of the Owner. The Owner also shall have and retain any and all other rights and remedies provided by law, in contract or otherwise.

ARTICLE 3

CONTRACT CONSTRUCTION

3.1 Intent and Interpretation. With respect to the intent and interpretation of this Contract, the Owner and the Contractor agree as follows:

3.1.1 This Contract, together with the Contractor's and Surety's performance and payment bonds for the Project, constitute the entire and exclusive agreements between the parties with reference to the Project, and said Contract supersedes any and all prior discussions, communications, representations, understandings, negotiations, or agreements. This Contract also supersedes any bid documents, but only to the extent that it is inconsistent therewith.

3.1.2 Anything that may be required, implied or inferred by the documents which make up this Contract, or any one or more of them, shall be provided by the Contractor for the Contract Price.

3.1.3 Nothing contained in this Contract shall create, nor be interpreted to create, privity or any other relationship whatsoever between the Owner and any person or entity except the Contractor.

3.1.4 The specification herein of any act, failure, refusal, omission, event, occurrence or condition as constituting a material breach of this Contract shall not imply that any other, non‑specified act, failure, refusal, omission, event, occurrence or condition shall be deemed not to constitute a material breach of this Contract.

3.1.5 The Contractor shall have a continuing duty to read, examine, review, compare and contrast each of the documents which make up this Contract, shop drawings, and other submittals. Each of the documents is complementary and shall be interpreted so that what is called for by one shall be as binding as if called for by all. Should the Contractor observe any conflicts, ambiguity, errors or omissions within the documents, he shall, by written notice, bring them to the Owner’s and Architect’s attention for decision and revision as soon as possible after originally observed and before proceeding with the affected Work. In the event of duplication or conflicts between the documents after the Contract has been executed, the most expensive method of work, materials and equipment shall be construed as the requirement, with a credit for all costs saved accruing to the Owner in the event the least expensive method of work is directed. The express or implied approval by the Owner or the Architect of any shop drawings or other submittals shall not relieve the Contractor of the continuing duties imposed hereby, nor shall any such approval be evidence of the Contractor's compliance with this Contract. The Owner has requested the Architect to only prepare documents for the Project, including the plans and specifications for the Project, which are accurate, adequate, consistent, coordinated and sufficient for construction. However, the Owner makes no representation or warranty of any nature whatsoever to the Contractor concerning such documents. The Contractor again hereby acknowledges and represents that it has received, reviewed and carefully examined such documents, believes them to be complete, accurate, adequate, consistent, coordinated and sufficient for construction, and that the Contractor has not, does not, and will not rely upon any representations or warranties by the Owner concerning such documents, as no such representations or warranties have been or are hereby made.

3.1.6 Plans are not intended to be scaled or to act as shop drawings.

3.1.7 In the event of any conflict, discrepancy, or inconsistency among any of the documents which make up this Contract, interpretation will be based on the following priority:

3.1.7.1 First, Addenda (if any), with those of later date having precedence over those of earlier date;

3.1.7.2 second, this Contract;

3.1.7.3 third, Supplemental or Special Conditions (if any);

3.1.7.4 fourth, the Specifications; and, 3.1.7.5 fifth, the Plans, with the following priority:

(a) As between figures given on plans and scaled measurements, the figures shall govern;

(b) As between large scale plans and small scale plans, the large scale plans shall govern.

3.1.8 Whenever an item is specified or shown on the plans by detail or reference, it shall be considered typical for other items which are obviously intended to be the same even though not so designated or specifically named but do serve the same function in the building.

3.1.9 Any material specified by reference to the number, symbol, or title of a specific standard such as a Commercial Standard, a Federal Specification, a trade association standard, or other similar standard, shall comply with the requirements in the latest revision thereof and any amendment or supplement thereto in effect on the date indicated on the specifications, except as limited, or modified in such references. The standards referred to, except as modified in the Contract, shall have full force and effect as though printed in the Contract. The Contractor shall make itself aware of the contents of such standards and shall furnish the field office with one (1) full set of each.

3.1.10 If Owner elects to accept any items proposed by the Contractor as a substitution, the Contractor shall assume full responsibility for the proper performance of any substitution to the criteria set forth in the Contract and assume the costs of any changes in the Work which may be due to such substitution.

3.1.11 When a word, term, or phrase is used in this Contract, it shall be interpreted or construed first, as defined herein; second, if not defined, according to its generally accepted meaning in the construction industry; and third, if there is no generally accepted meaning in the construction industry, according to its common and customary usage.

3.1.12 The words "include", "includes", or "including", as used in this Contract, shall be deemed to be followed by the phrase, "without limitation".

3.1.13 Wherever the terms “necessary”, “suitable”, “as directed”, “when directed”, “satisfactory”, “good and sufficient”, “approved”, or other general qualifying terms are used on the plans, they are deemed to be followed by the words “in the opinion of the Architect”, or “by the Architect”, as the case may be.

3.1.14 Unless otherwise stated, the terms “approval”, “approved”, “approved equal”, “or equal”, or “other approved”, are deemed to be followed by the words “in the opinion of the Architect”, or “by the Architect”, as the case may be.

3.1.15 If the Owner’s design professional for the Project is an engineer rather than an architect, then the term “Architect” as used throughout this Contract shall mean “Engineer”.

3.1.16 Unless otherwise stated, the term “day” means “calendar day” and the term “days” means “calendar days”.

3.1.17 “Work” means any and all labor, supervision, work, supplies, fixtures, appliances, furnishings, vehicles, equipment, services, facilities, tools, materials, computers, transportation, storage, power, fuel, heat, light, cooling, utilities, insurance, bonds, items, documents and things required by the Contract Documents to be performed, obtained, furnished, provided, or supplied by Contractor, including without limitation all construction, testing, and permitting required to render the Project, and every component thereof, operational and usable for its intended purposes.

3.2 Ownership. The documents which make up this Contract, and each of them, as well as any other documents furnished by the Owner, shall remain the property of the Owner. The Contractor shall have the right to keep one (1) copy of the Contract upon completion of the Project; provided, however, that in no event shall the Contractor use, or permit to be used, any portion or all of such Contract on other projects without the Owner's prior written authorization.

ARTICLE 4

CONTRACTOR'S PERFORMANCE

4.1 Generally. The Contractor shall perform all of the Work required, implied or reasonably inferable from this Contract including, but not limited to, the following:

4.1.1 Construction of the Project;

4.1.2 The furnishing of required surety bonds and insurance;

4.1.3 The provision, and prompt payment therefor, of labor, supervision, services, materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage, power, fuel, heat, light, cooling, or other utilities, required for construction and all necessary building permits and other permits, licenses, fees and governmental inspections required for the construction of the Project; and, 4.1.4 The creation and submission to the Owner of detailed and comprehensive as-built drawings depicting all as-built construction. Said as-built drawings shall be submitted to the Owner upon Final Completion of the Project and receipt of same by the Owner shall be a condition precedent to final payment to the Contractor.

ARTICLE 5

TIME FOR CONTRACTOR'S PERFORMANCE

5.1 Time for Performance. The Contractor shall commence the performance of this Contract on the day the Contractor receives a written Notice to Proceed from the Architect or Owner, or such later date as may be set forth therein, and shall diligently continue its performance to and until Final Completion of the Project. The Contractor shall accomplish Substantial Completion of the Project on or before ________________________________________________________. The time for achieving Substantial Completion may sometimes be referred to in the Contract Documents as the “Contract Time”.

5.2 Liquidated Damages for Delay. The Contractor shall pay the Owner for each and every calendar day of unexcused delay in achieving Substantial Completion beyond the date set forth herein for Substantial Completion the sum indicated at Exhibit “B” attached hereto and by reference made a part hereof. Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by the Owner. When the Owner reasonably believes that Substantial Completion will be inexcusably delayed, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the Owner to be adequate to recover liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving Substantial Completion, or any part thereof, for which the Owner has withheld payment, the Owner shall promptly release to the Contractor those funds withheld, but no longer applicable, as liquidated damages.

5.3 Substantial Completion. The term "Substantial Completion", as used herein, shall mean that point at which, as certified in writing by the Architect, the Project is at a level of completion in strict compliance with this Contract such that the Owner can enjoy beneficial use or occupancy and can use or operate it in all respects, for its intended purpose. Partial use or occupancy of the Project shall not result in the Project being deemed substantially complete, and such partial use or occupancy shall not be evidence of Substantial Completion.

5.4 Time Is Of The Essence. All limitations of time set forth herein are material and are of the essence of this Contract.

ARTICLE 6

FIXED PRICE AND CONTRACT PAYMENTS

6.1 Contract Price. The Owner shall pay, and the Contractor shall accept, as full and complete payment for the Contractor's timely performance of its obligations hereunder the fixed price of ______________________________________________________________________________ Dollars

($______________________). The price set forth in this Paragraph 6.1 shall constitute the Contract Price, which shall not be modified except by Change Order as provided in this Contract. The Contract Price includes the following Alternate(s), if any: ______________________________________________

6.2 Schedule of Values. Within ten (10) calendar days of the effective date hereof, the Contractor shall prepare and present to the Owner and the Architect the Contractor's Schedule of Values apportioning the Contract Price among the different elements of the Project for purposes of periodic and final payment. The Contractor's Schedule of Values shall be presented in whatever format, with such detail, and backed up with whatever supporting information the Architect or the Owner requests. The Contractor shall not front-end load its Schedule of Values by imbalancing it or by increasing any element thereof in excess of the actual cost, and any violation of this provision by the Contractor shall constitute a material breach of this Contract. The Contractor's Schedule of Values will be utilized for the Contractor's Payment Requests but shall only be so utilized after it has been acknowledged in writing by the Architect and the Owner.

6.3 Payment Procedures. The Owner shall pay the Contract Price to the Contractor in accordance with the procedures set forth in this Article 6. On or before the 5th day of each month after commencement of performance, but no more frequently than once monthly, the Contractor may submit a Payment Request for the period ending the last day of the previous month. Said Payment Request shall be in such format and include whatever supporting information as may be required by the Architect, the Owner, or both. Therein, the Contractor may request payment for ninety percent (90%) of that part of the Contract Price allocable to Contract requirements properly provided, labor, materials and equipment properly incorporated in the Project, and materials or equipment necessary for the Project and properly stored at the Project site (or elsewhere if offsite storage is approved in writing by the Owner), less the total amount of previous payments received from the Owner. Any payment on account of stored materials or equipment will be subject to the Contractor providing written proof that the Owner has title to such materials or equipment and that they are fully insured against loss or damage. Moreover, any sums approved for stored materials shall be at actual cost and shall not include markup by subcontractor or Contractor. Actual cost means costs charged by the manufacturer or the distributor for the manufacturer and the Payment Request shall include copies of invoices from the manufacturer or the distributor.

When fifty percent (50%) of the Contract Price, as it may be adjusted, is due and the manner of completion of the Work and its progress are reasonably satisfactory to the Architect, the Owner shall withhold no more retainage. If, after discontinuing the retention, the Architect determines that the Work is unsatisfactory or has fallen behind schedule, retention shall be resumed at the previous level.

Each Payment Request shall be signed by the Contractor and shall constitute the Contractor's representation that the quantity of Work has reached the level for which payment is requested, that the Work has been properly installed or performed in strict compliance with this Contract, and that the Contractor knows of no reason why payment should not be made as requested. Each Payment Request shall be accompanied by 8" x 10" photographs of good quality depicting the then-current status of the Project and including such views, including without limitation aerial views, as the Architect or the Owner may reasonably require.

Thereafter, the Architect shall review the Payment Request and may also review the Work at the Project site or elsewhere to determine whether the quantity and quality of the Work is as represented in the Payment Request and is as required by this Contract. The Architect shall approve in writing the amount which, in the opinion of the Architect, is properly owing to the Contractor. The Owner, after the approval of the Georgia Department of Education if so required, shall make payment to the Contractor within thirty (30) days following the Architect's written approval of each Payment Request. The amount of each such payment shall be the amount approved for payment by the Architect less such amounts, if any, otherwise owing by the Contractor to the Owner or which the Owner shall have the right to withhold as authorized by this Contract. The Architect's approval of the Contractor's Payment Requests shall not preclude the Owner from the exercise of any of its rights as set forth in Paragraph 6.6 hereinbelow. The submission by the Contractor of a Payment Request also constitutes an affirmative representation and warranty that all Work for which the Owner has previously paid is free and clear of any lien, claim, or other encumbrance of any person or entity whatsoever. As a condition precedent to payment, the Contractor shall, if required by the Owner, also furnish to the Owner properly executed waivers of claim or lien, in a form acceptable to the Owner, from Contractor and from all subcontractors, materialmen, suppliers or others having claim or lien rights, wherein Contractor and said subcontractors, materialmen, suppliers or others having claim or lien rights shall acknowledge receipt of all sums due pursuant to all prior Payment Requests and waive and relinquish any liens, lien rights or other claims relating to the Project site. Furthermore, the Contractor warrants and represents that, upon payment of the Payment Request submitted, title to all Work included in such payment shall be vested in the Owner.

6.4 Payments by Contractor. When payment is received from the Owner, the Contractor shall immediately pay all subcontractors, materialmen, laborers and suppliers the amounts they are due for the Work covered by such payment. In the event the Owner becomes informed that the Contractor has not paid a subcontractor, materialman, laborer, or supplier as provided herein, the Owner shall have the right, but not the duty, to issue future checks and payment to the Contractor of amounts otherwise due hereunder naming the Contractor and any such subcontractor, materialman, laborer, or supplier as joint payees. Such joint check procedure, if employed by the Owner, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check and shall not be deemed to commit the Owner to repeat the procedure in the future.

6.5 No Acceptance of Work. Neither payment to the Contractor, utilization of the Project for any purpose by the Owner, nor any other act or omission by the Owner shall be interpreted or construed as an acceptance of any Work of the Contractor not strictly in compliance with this Contract.

6.6 Refusal to Make Payment. The Owner shall have the right to refuse to make payment and, if necessary, may demand the return of a portion or all of the amount previously paid to the Contractor due to any one, or combination of, the following:

6.6.1 The quality of a portion, or all, of the Contractor's Work not being in accordance with the requirements of this Contract;

6.6.2 The quantity of the Contractor's Work not being as represented in the Contractor's Payment Request, or otherwise;

6.6.3 The Contractor's rate of progress being such that, in the opinion of the Owner or the Architect, or both, Substantial Completion or Final Completion, or both, may be inexcusably delayed;

6.6.4 Reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Price;

6.6.5 The Contractor's failure to use Contract funds, previously paid the Contractor by the Owner, to pay Contractor's Project-related obligations including, but not limited to, subcontractors, laborers and material and equipment suppliers;

6.6.6 Claims made, or likely to be made, against the Owner or its property;

6.6.7 Loss or damage caused by the Contractor;

6.6.8 The Contractor’s failure or refusal to perform any of its obligations relating to safety, including without limitation the safety related obligations set forth in the Specifications Division 1 – General Requirements; or,

6.6.9 The Contractor's failure or refusal to perform any of its obligations to the Owner.

In the event that the Owner makes written demand upon the Contractor for amounts previously paid by the Owner as contemplated in this Paragraph 6.6 the Contractor shall promptly comply with such demand.

6.7 Untimely Payments. If within thirty (30) days from the date payment to the Contractor is due, the Owner, without cause or basis hereunder, fails to pay the Contractor any amounts then due and payable to the Contractor, the Contractor shall have the right to cease Work until receipt of proper payment after first providing ten (10) days written notice of its intent to cease Work to the Owner.

6.7.1 Payments due from the Owner to the Contractor under the terms of this Contract which remain unpaid for thirty (30) days after the date when due will thereafter accrue interest at the rate of six percent (6%) per annum until payment of such amount as is due has been made in full provided that notice has been given as set forth in O.C.G.A. § 13-11-7. Acceptance of progress payments or final payment shall release all claims for interest on said payments. To the fullest extent allowed by law, the Contract Documents shall supersede all provisions of the Georgia Prompt Pay Act, O.C.G.A. § 13-11-1, et seq.

6.8 Inspection and Payment at Substantial Completion. When Substantial Completion has been achieved, the Contractor shall notify the Owner and the Architect in writing and shall furnish to the Architect a listing of those matters yet to be finished. The Architect will thereupon conduct an inspection to confirm that the Work is in fact substantially complete. Upon its confirmation that the Contractor's Work is substantially complete, the Architect will so certify to the Owner and Contractor in writing and will therein set forth the date of Substantial Completion. If the Architect, through its inspection, fails to find that the Contractor's Work is substantially complete, and is required to repeat all, or any portion, of its Substantial Completion inspection, the Contractor shall bear the cost of such repeat inspection(s) which cost may be deducted by the Owner from any payment then or thereafter due to the Contractor. Guarantees and equipment warranties required by this Contract shall commence on the date of Substantial Completion. Subject to the condition precedent set forth in the immediately succeeding sentence, upon Substantial Completion, the Owner shall pay the Contractor an amount sufficient to increase total payments to the Contractor to one hundred percent (100%) of the Contract Price less any amounts attributable to liquidated damages, together with two hundred percent (200%) of the reasonable costs as determined by the Owner for completing all incomplete Work, correcting and bringing into conformance all defective and nonconforming Work, and handling any outstanding or threatened claims. Prior to being entitled to receive the payment described in the immediately preceding sentence, and as a condition precedent thereto, Contractor shall furnish Owner, in form and manner acceptable to Owner, consent(s) of surety to release retainage, together with an original current power of attorney with current certificate attached thereto.

6.9 Final Completion. "Final Completion" means the completion of all Work required by, and in strict compliance with, the Contract, including start-up, testing, obtaining regulatory approvals from all applicable authorities, and all preparations necessary to operate the Project.

6.10 Final Inspection; Final Approval for Payment. When the Project is finally complete and the Contractor is ready for a final inspection, it shall notify the Owner and the Architect thereof in writing. Thereupon, the Architect will perform a final inspection of the Project. If the Architect confirms that the Project is complete in full accordance with this Contract and that the Contractor has performed all of its obligations to the Owner hereunder, the Architect will furnish a final Approval for Payment to the Owner certifying to the Owner that the Project is complete and the Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld pursuant to this Contract. If the Architect is unable to issue its final Approval for Payment and is required to repeat its final inspection of the Project, the Contractor shall bear the cost of such repeat inspection(s), which costs may be deducted by the Owner from the Contractor's final payment.

6.11 Time for Final Completion; Liquidated Damages for Delay in Final Completion. If the Contractor fails to achieve Final Completion within 30 days of the date of Substantial Completion, the Contractor shall pay the Owner one-tenth (1/10) of the sum indicated at Exhibit “B” per day for each and every calendar day of unexcused delay in achieving Final Completion beyond the date set forth herein for Final Completion of the Work. Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by the Owner. When the Owner reasonably believes that Final Completion will be inexcusably delayed, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the Owner to be adequate to recover liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving Final Completion, or any part thereof, for which the Owner has withheld payment, the Owner shall promptly release to the Contractor those funds withheld, but no longer applicable, as liquidated damages.

6.12 Conditions Precedent to Final Payment. Prior to being entitled to receive final payment, and as a condition precedent thereto, the Contractor shall furnish the Owner, in the form and manner required by Owner, if any, with a copy to the Architect, all of the following:

6.12.1 An affidavit that all of the Contractor's obligations to subcontractors, laborers, equipment or material suppliers, or other third parties in connection with the Project, have been paid or otherwise satisfied;

6.12.2 If required by the Owner, separate releases of claims and liens and claim and lien waivers from Contractor and each subcontractor, lower tier subcontractor, laborer, supplier or other person or entity who has, or might have, a claim against the Owner or the Owner's property and an affidavit that all such releases and waivers have been provided;

6.12.3 Consent(s) of Surety to final payment, together with an original current power of attorney with current certificate attached thereto; and, 6.12.4 All product warranties, operating manuals, instruction manuals and other record documents, drawings and things customarily required of the Contractor, or expressly required herein, as a part of or prior to Project closeout.

6.13 Final Payment. The Owner shall, after the approval of the Georgia Department of Education if so required, and subject to its rights set forth in Paragraph 6.6 above, make final payment of all sums due the Contractor within ten (10) days of the Architect's execution of a final Approval for Payment. The making of final payment by the Owner shall constitute a full and final waiver of any and all claims by the Contractor except for claims (a) previously and timely made in writing by the Contractor pursuant to the requirements of Article 12 and (b) listed and identified on the Contractor’s final Payment Request.

ARTICLE 7

INFORMATION AND MATERIAL SUPPLIED BY THE OWNER

7.1 Generally. The Owner shall furnish to the Contractor, prior to the execution of this Contract, any and all written and tangible material in its possession concerning conditions below ground at the site of the Project. Such written and tangible material is furnished to the Contractor only in order to make complete disclosure of such material as being in the possession of the Owner and for no other purpose. By furnishing such material, the Owner does not represent, warrant, or guarantee its accuracy either in whole, in part, implicitly or explicitly, or at all, and shall have no liability therefor. The Owner shall also furnish, if appropriate, the legal description of the Project site, and any required survey.

7.2 Easements. The Owner shall obtain all required easements and the like, but not the building permit and other permits or fees required of the Contractor by this Contract, or permits and fees customarily the responsibility of the Contractor.

7.3 Contract Copies. The Owner will provide the Contractor three (3) copies of the complete Contract Documents. The Contractor will be charged, and shall pay the Owner, actual cost of reproduction for each additional copy of the Contract Documents requested by the Contractor.

ARTICLE 8

CEASE AND DESIST ORDER

In the event the Contractor fails or refuses to perform the Work as required herein, the Owner may instruct the Contractor to cease and desist from performing further Work in whole or in part. Upon receipt of such instruction, the Contractor shall immediately cease and desist as instructed by the Owner and shall not proceed further until the cause for the Owner's instructions has been corrected, no longer exists, or the Owner instructs that the Work may resume. In the event the Owner issues such instructions to cease and desist, and in the further event that the Contractor fails and refuses within seven (7) days of receipt of same to provide adequate assurance to the Owner that the cause of such instructions will be eliminated or corrected, then the Owner shall have the right, but not the obligation, to carry out the Work with its own forces, or with the forces of another contractor, and the Contractor shall be fully responsible and liable for the costs of performing such Work by the Owner. In such case, an appropriate Change Order shall be issued deducting from the payment then or thereafter due the Contractor the cost of correcting such deficiencies, including the cost of the Architect’s additional services made necessary by such default, neglect or failure. If the payments then or thereafter due the Contractor are not sufficient to cover such amount, the Contractor shall pay the difference to the Owner. The rights set forth herein are in addition to, and without prejudice to, any other rights or remedies the Owner may have against the Contractor.

ARTICLE 9

DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE CONTRACTOR

9.1 Generally. In addition to any and all other duties, obligations and responsibilities of the Contractor set forth in this Contract, the Contractor shall have and perform the following duties, obligations and responsibilities to the Owner:

9.1.1 The Contractor is again reminded of its continuing duties set forth in Subparagraph 3.1.5 which are by reference hereby incorporated in this Subparagraph 9.1.1. The Contractor shall not perform Work without adequate plans and specifications, or, as appropriate, approved shop drawings, or other submittals. If the Contractor performs Work knowing or believing it involves an error, inconsistency or omission in the Contract without first providing written notice to the Architect and Owner, the Contractor shall be responsible for such Work and pay the cost of correcting same.

9.1.2 All Work shall strictly conform to the requirements of this Contract.

9.1.3 The Work shall be strictly supervised, the Contractor bearing full responsibility for any and all acts or omissions of those engaged in the Work on behalf of the Contractor.

9.1.4 The Contractor shall obtain and pay for all required permits, fees and licenses customarily obtained by the Contractor. The Contractor shall comply with all laws and legal requirements applicable to the Work.

9.1.5 The Contractor shall employ and maintain at the Project site only competent supervisory personnel. The superintendent must be satisfactory to the Owner. The superintendent shall represent the Contractor and communications given to the superintendent shall be as binding as if given to the Contractor. Key supervisory personnel assigned by the Contractor to this Project are as follows:

NAME

FUNCTION

So long as the individuals named above remain actively employed or retained by the Contractor, they shall perform the functions indicated next to their names unless the Owner agrees to the contrary in writing. In the event one or more individuals not listed above subsequently assumes one or more of those functions listed above, the Contractor shall be bound by the provisions of this Subparagraph 9.1.5 as though such individuals had been listed above.

9.1.6 The Contractor shall keep an updated copy of this Contract at the site. Additionally, the Contractor shall keep a copy of approved shop drawings and other submittals. All of these items shall be available to the Owner and the Architect at all regular business hours. Upon Final Completion of the Work, all of these items shall be finally updated and provided to the Owner and shall become the property of the Owner.

9.1.7 Shop drawings and other submittals from the Contractor do not constitute a part of the Contract. The Contractor shall not do any Work requiring shop drawings or other submittals unless such shall have been approved in writing by the Architect. All Work requiring approved shop drawings or other submittals shall be done in strict compliance with such approved documents. However, approval by the Architect or the Owner shall not be evidence that Work installed pursuant thereto conforms with the requirements of this Contract. The Owner and the Architect shall have no duty to review partial submittals or incomplete submittals. The Contractor shall maintain a submittal log which shall include, at a minimum, the date of each submittal, the date of any resubmittal, the date of any approval or rejection, and the reason for any approval or rejection. The Contractor shall carefully review, inspect and examine any and all submittals before submission of same to the Owner or the Architect.

9.1.8 The Contractor shall maintain the Project site in a reasonably clean condition during performance of the Work. Upon Final Completion, the Contractor shall thoroughly clean the Project site of all debris, trash and excess materials or equipment.

9.1.9 At all times relevant to this Contract, the Contractor shall permit the Owner and the Architect to enter upon the Project site and to review or inspect the Work without formality or other procedure.

9.2 Warranty.

9.2.1 The Contractor hereby warrants that all labor furnished under this Contract shall be competent to perform the tasks undertaken, that the product of such labor shall yield only first‑class results, that all materials and equipment provided shall be new and of high quality, that the completed Work will be complete, of high quality, without defects, and that all Work strictly complies with the requirements of this Contract. Any Work not strictly complying with the requirements of this Subparagraph shall constitute a breach of the Contractor's warranty.

9.2.2 The Contractor shall provide any and all specific or special warranties or guarantees of materials, equipment, items, systems and other things as required elsewhere in this Contract.

9.3 Schedule for Completing Work. The Contractor, within fifteen (15) days of commencing the Work, shall provide to the Owner and the Architect, and comply with, the Contractor's Schedule of Construction for timely completing the Work. Such schedule shall be a detailed critical path (CPM) schedule in a form acceptable to the Owner. The Contractor's Schedule of Construction shall be updated no less frequently than monthly (unless the parties otherwise agree in writing) and shall be updated to reflect conditions encountered from time to time and shall apply to the total Project. Each such revision shall be furnished to the Owner and the Architect. In addition to, and not in limitation of, any other requirements of this Contract, the Contractor shall comply with the requirements of Exhibit “C,” Minimum Requirements for Contractor’s Schedule of Construction, attached hereto and incorporated herein by reference. Strict compliance with the requirements of this Paragraph 9.3 shall be a condition precedent to payment to the Contractor, and failure by the Contractor to strictly comply with said requirements shall constitute a material breach of this Contract.

9.3.1 In the event the Contractor inexcusably fails to comply with the time limits established in the Contractor’s Schedule of Construction with respect to any task on the critical path of the Project, then, in addition to any other rights and remedies of the Owner under the Contract, the Contractor shall, within seven days after receipt of written demand of the Owner, commence working not less than a twelve-hour day and not less than six days a week until such time as Contractor shall have overcome the delinquency and brought the amount of critical path Work in place into compliance with the Contractor’s Schedule of Construction, all at no additional cost to the Owner. Nothing herein shall relieve the Contractor from liability for failure to timely progress the Work or any other breach of the Contract Documents.

9.4 Storm Water Discharge Permits. Unless otherwise directed in writing by the Owner, the provisions of this Paragraph 9.4 shall apply and the Contractor shall have and perform the duties, obligations and responsibilities of the Contractor set forth herein. The Owner has contracted with the Architect to: (i) prepare the Erosion, Sedimentation and Pollution Control Plan in accordance with the State of Georgia Department of Natural Resources Environmental Protection Division storm water discharge permit (the “DNREPDSWD Permit”); (ii) perform the initial inspection of the installation of the control measures set forth in the Erosion, Sedimentation and Pollution Control Plan in accordance with the DNREPDSWD Permit; (iii) perform the weekly inspections and inspections after rain (or other precipitation) as are required by the DNREPDSWD Permit; and (iv) perform the duties, obligations and responsibilities of the “design professional” under the DNREPDSWD Permit. As used in the immediately preceding sentence, the term “design professional” shall have the meaning ascribed to it in the DNREPDSWD Permit. Excepting only the foregoing items (i) through (iv) performed by the Architect, the Contractor shall provide, satisfy or otherwise comply with all applicable requirements and conditions of the DNREPDSWD Permit, including, without limitation, all notices, fees, plan implementation, monitoring, sampling, inspections, reports, record keeping, submittals and any other requirements and conditions of the DNREPDSWD Permit. The Contractor’s duties and obligations shall not be relieved by any duties of the Architect. The Contractor shall timely notify the Architect of any rain or other precipitation requiring the inspections referred to in item (iii) above so as to facilitate the Architect’s timely performance of such inspections. The Contractor shall timely notify the Owner and Architect of any failure by the Architect to timely perform the inspections referred to in item (iii) above.

ARTICLE 10

INDEMNITY

The Contractor shall indemnify and hold the Owner harmless from any and all claims, liability, damages, loss, cost and expense of every type whatsoever including, without limitation, attorneys' fees and expenses, in connection with the Contractor's performance of this Contract, provided that such claim, liability, damage, loss, cost or expense is due to sickness, bodily injury, disease or death, or to loss or destruction of tangible property (other than the Work itself), including loss of use resulting therefrom, to the extent caused by the Contractor, or anyone for whose acts the Contractor is or may be responsible or liable, regardless of whether such liability, claim, damage, loss, cost or expense is caused in part by the Owner. The Contractor shall not indemnify or hold harmless the Owner against claims for damages, losses, or expenses, including attorneys’ fees, arising out of sickness, bodily injury, disease or death, or to loss or destruction of tangible property caused by or resulting from the sole negligence of the Owner, or its officers, agents or employees; provided, however, the preceding limitation concerning the sole negligence of the Owner or its officers, agents or employees shall not limit or affect any obligation of the Contractor under workers’ compensation or coverage or insurance specifically relating to workers’ compensation, nor any requirement that one party to this Contract purchase a project specific insurance policy, including owner’s or contractor’s protective insurance, builder’s risk insurance, installation coverage, project management protective liability insurance, an owner controlled insurance policy, or a contractor controlled insurance policy.

ARTICLE 11

THE PROJECT ARCHITECT

11.1 Architect. The architect for this Project is ___________________________________ (the “Architect”). In the event the Owner should find it necessary or convenient to replace the Architect, the Owner shall retain a replacement architect and the role of the replacement architect shall be the same as the role of the Architect. Unless otherwise directed by the Owner in writing, the Architect will perform those duties and discharge those responsibilities allocated to the Architect in this Contract. The duties, obligations and responsibilities of the Architect shall include, but are not limited to, the following:

11.1.1 Unless otherwise directed by the Owner in writing, the Architect shall act as the Owner’s agent from the effective date of this Contract until final payment has been made, to the extent expressly set forth in this Contract;

11.1.2 Unless otherwise directed by the Owner in writing, the Owner and the Contractor shall communicate with each other in the first instance through the Architect;

11.1.3 When requested by the Contractor in writing, the Architect shall render interpretations necessary for the proper execution or progress of the Work;

11.1.4 The Architect shall draft proposed Change Orders;

11.1.5 The Architect shall approve, or respond otherwise as necessary concerning shop drawings or other submittals received from the Contractor;

11.1.6 The Architect shall be authorized to refuse to accept Work which is defective or otherwise fails to comply with the requirements of this Contract. If the Architect deems it appropriate, the Architect shall be authorized to call for extra inspection or testing of the Work for compliance with requirements of this Contract;

11.1.7 The Architect shall review the Contractor's Payment Requests and shall approve in writing those amounts which, in the opinion of the Architect, are properly owing to the Contractor as provided in this Contract;

11.1.8 The Architect shall, upon written request from the Contractor, perform those inspections required in…