1216314v1
Standard Form of Agreements Between
Owner and Design/Builder
AIA Document A191 - Electronic Format
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES: CONSULTATION WITH AN ATTORNEY IS
ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION. AUTHENTICATION OF
THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT D401.
Copyright 1985, (C) 1996 The American Institute of Architects, 1735 New York
Avenue, NW, Washington, DC 20006-5292. Reproduction of the material herein or
substantial quotation of its provisions without the written permission of the
AIA violates the copyright laws of the United States and will subject the
violator to legal prosecution.
1996 EDITION
TABLE OF ARTICLES
PART 1 AGREEMENT
1. Design/Builder 6. Dispute Resolution - Mediation and Arbitration
2. Owner 7. Miscellaneous Provisions
3. Ownership and Use of Documents and 8. Termination of the Agreement
Electronic data 9. Basis of Compensation
4. Time 10. Other Conditions and Services
5. Payments
PART 2 AGREEMENT
1. General Provisions 8. Changes in the Work
2. Owner 9. Correction of Work
3. Design/Builder 10. Dispute Resolution - Mediation and Arbitration
4. Time 11. Miscellaneous Provisions
5. Payments 12. Termination of the Agreement
6. Protection of Persons and Property 13. Basis of Compensation
7. Insurance and Bonds 14. Other Conditions and Services
AIA DOCUMENT A191 o OWNER-DESIGN/BUILDER AGREEMENT o SECOND EDITION o AIA(R) o
(C) 1996 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, NW,
WASHINGTON, DC 20006-5292 o WARNING: Unlicensed photocopying violates U.S.
copyright laws and subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced without
violation until the date of expiration as noted below.
Electronic Format A191-1996
User Document: CRYOLIFE -- 1/19/2000. AIA License Number 102512, which expires
on 2/5/2000 - Page #1
INITIAL______________
Standard Form of Agreements Between
Owner and Design/Builder
AIA Document A191 - Electronic Format
This document comprises two separate Agreements: Part 1 Agreement and Part 2
Agreement. Before executing the Part 1 Agreement, the parties should reach
substantial agreement on the Part 2 Agreement. To the extent referenced in these
Agreements, subordinate parallel agreements to A191 consist of AIA Documents
A491, Standard Form of Agreements Between Design/Builder and Contractor, and AIA
Document B901, Standard Form of Agreements Between Design/Builder and Architect.
PART 1 AGREEMENT
1996 EDITION
AGREEMENT
made as of the 19th day of January in the year of Two Thousand.
(In words, indicate day, month and year.)
BETWEEN the Owner:
(Name and address)
CryoLife, Inc.
1655 Roberts Blvd, NW
Kennesaw, GA 30144
and the Design/Builder:
(Name and address)
Choate Design & Build Company
1640 Powers Ferry Road
Building 11, Suite 300
Marietta, GA 30067
For the following Project:
(Include Project name, location and a summary description.)
CryoLife, Inc - Phase II Interiors
1655 Roberts Blvd, NW
Kennesaw, GA 30144
The architectural services described in Article 1 will be provided by the
following person or entity who is lawfully licensed to practice architecture:
(Name and address) (Registration Number) (Relationship to Design/Builder)
Lockwood Greene Engineering, Inc. Subcontractor-Architecture
Inforum, Suite 4000, 250 Williams St. & Engineering
Atlanta, GA 30303-1306
Normal structural, mechanical and electrical engineering services will be
provided contractually through the Architect except as indicated below:
(Name, address and discipline) (Registration Number) (Relationship to Design/Builder)
The Owner and the Design/Builder agree as set forth below.
TERMS AND CONDITIONS-PART 1 AGREEMENT
ARTICLE 1
DESIGN/BUILDER
1.1 SERVICES
1.1.1 Preliminary design, budget, and schedule comprise the services required to
accomplish the preparation and submission of the Design/Builder's Proposal as
well as the preparation and submission of any modifications to the Proposal
prior to execution of the Part 2 Agreement.
1.2 RESPONSIBILITIES
1.2.1 Design services required by this Part 1 Agreement shall be performed by
qualified architects and other design professionals. The contractual obligations
of such professional persons or entities are undertaken and performed in the
interest of the Design/Builder.
1.2.2 The agreements between the Design/Builder and the persons or entities
identified in this Part 1 Agreement, and any subsequent modifications, shall be
in writing. These agreements, including financial arrangements with respect to
this Project, shall be promptly and fully disclosed to the owner upon request.
1.2.3 Construction budgets shall be prepared by qualified professionals, cost
estimators or contractors retained by and acting in the interest of the
Design/Builder.
1.2.4 The Design/Builder shall be responsible to the Owner for acts and
omissions of the Design/Builder's employees, subcontractors and their agents and
employees, and other persons, including the Architect and other design
professionals, performing any portion of the Design/Builder's obligations under
this Part 1 Agreement. The Design/Builder shall be limited in liability to the
extent of the Architect's professional design liability insurance.
1.2.5 If the Design/Builder believes or is advised by the Architect or by
another design professional retained to provide services on the Project that
implementation of any instruction received from the Owner would cause a
violation of any applicable law, the Design/Builder shall notify the Owner in
writing. Neither the Design/Builder nor the Architect shall be obligated to
perform any act which either believes will violate any applicable law.
1.2.6 Nothing contained in this Part 1 Agreement shall create a contractual
relationship between the Owner and a person or entity other than the
Design/Builder.
1.3 BASIC SERVICES
1.3.1 The Design/Builder has provided a preliminary evaluation (Exhibit "A",
Final Build-Out Interiors dated 10/19/99) of the Owner's program and project
budget requirements, each in terms of the other.
1.3.2 The Design/Builder shall visit the site, become familiar with the local
conditions, and correlate observable conditions with the requirements of the
Owner's program, schedule, and budget.
1.3.3 The Design/Builder shall review laws applicable to design and construction
of the Project; correlate such laws with the Owner's program requirements; and
advise the Owner if any program requirement may cause a violation of such laws.
Necessary changes to the Owner's program shall be accomplished by appropriate
written modification or disclosed as described in Paragraph 1.3.5.
1.3.4 The Design/Builder shall review with the Owner a alternative approaches to
design and construction of the Project.
1.3.5 The Design/Builder shall submit to the Owner a Proposal, including the
completed Preliminary Design Documents, a statement of the proposed contract
sum, and a proposed schedule for completion of the Project. Preliminary Design
Documents shall consist of preliminary design drawings, outline specifications
or other documents sufficient to establish the size, quality and character of
the entire Project, its architectural, mechanical and electrical systems, and
the materials and such other elements of the Project as may be appropriate.
Deviations from the Owner's program shall be disclosed in the Proposal.
[intentionally omitted] . The Part 2 Agreement is accepted herein by the Owner.
1.4 ADDITIONAL SERVICES
1.4.1 The Additional Services described under this Paragraph 1.4 shall be
provided by the Design/Builder and paid for by the Owner if authorized or
confirmed in writing by the Owner.
1.4.2 Making revisions in the Preliminary Design Documents, budget or other
documents when such revisions are:
.1 inconsistent with approvals or instructions previously given by the
Owner, including revisions made necessary by adjustments in the
Owner's program or Project budget;
.2 required by the enactment or revision of codes, laws or regulations
subsequent to the preparation of such documents; or
.3 due to changes required as a result of the Owner's failure to render
decisions in a timely manner.
1.4.3 Providing more extensive programmatic criteria than that furnished by the
Owner as described in Paragraph 2.1. When authorized, the Design/Builder shall
provide professional services to assist the Owner in the preparation of the
program. Programming services may consist of:
.1 consulting with the Owner and other persons or entities not designated
in this Part 1 Agreement to define the program requirements of the
Project and to review the understanding of such requirements with the
Owner;
.2 documentation of the applicable requirements necessary for the various
Project functions or operations;
.3 providing a review and analysis of the functional and organizational
relationships, requirements, and objectives for the Project;
.4 setting forth a written program of requirements for the Owner's
approval which summarizes the Owner's objectives, schedule,
constraints, and criteria.
1.4.4 Providing financial feasibility or other special studies.
1.4.5 Providing planning surveys, site evaluations, or comparative studies of
prospective sites.
1.4.6 Providing special surveys, environmental studies and submissions required
for approvals of governmental authorities or others having jurisdiction over the
Project.
1.4.7 Providing services relative to future facilities, systems, and equipment.
1.4.8 Providing services at the Owner's specific request to perform detailed
investigations of existing conditions or facilities or to make measured drawings
thereof.
1.4.9 Providing services at the Owner's specific request to verify the accuracy
of drawings or other information furnished by the Owner.
1.4.10 Coordinating services in connection with the work of separate persons or
entities retained by the Owner, subsequent to the execution of this Part 1
Agreement.
1.4.11 Providing analyses of owning and operating costs.
1.4.12 Providing interior design and other similar services required for or in
connection with the selection, procurement or installation of furniture,
furnishings, and related equipment.
1.4.13 [intentionally omitted]
1.4.14 Making investigations, inventories of materials or equipment, or
valuations and detailed appraisals of existing facilities.
ARTICLE 2
OWNER
2.1 RESPONSIBILITIES
2.1.1 The Owner shall provide full information in a timely manner regarding
requirements for the Project, including a written program which shall set forth
the Owner's objectives, schedule, constraints and criteria.
2.1.2 The Owner shall establish and update an overall budget for the Project,
including reasonable contingencies. This budget shall not constitute the
contract sum.
2.1.3 The Owner shall designate a representative authorized to act on the
Owner's behalf with respect to the Project. The Owner or such authorized
representative shall render decisions in a timely manner pertaining to documents
submitted by the Design/Builder in order to avoid unreasonable delay in the
orderly and sequential progress of the Design/Builder's services. The Owner may
obtain independent review of the documents by a separate architect, engineer,
contractor, or cost estimator under contract to or employed by the Owner. Such
independent review shall be undertaken at the Owner's expense in a timely manner
and shall not delay the orderly progress of the Design/Builder's services. The
Owner designates Al Heacox/Tony Schreiber as the Owner's Representatives.
2.1.4 The Owner shall furnish surveys describing physical characteristics, legal
limitations and utility locations for the site of the Project, and a written
legal description of the site. The surveys and legal information shall include,
as applicable, grades and lines of streets, alleys, pavements, and adjoining
property and structures; adjacent drainage; rights-of-way, restrictions,
easements, encroachments, zoning, deed restrictions, boundaries and contours of
the site; locations, dimensions and necessary data pertaining to existing
buildings, other improvements and trees; and information concerning available
utility services and lines, both public and private, above and below grade,
including inverts and depths. All the information on the survey shall be
referenced to a Project benchmark.
2.1.5 The Owner shall furnish the services of geotechnical engineers when such
services are stipulated in this Part 1 Agreement, or deemed reasonably necessary
by the Design/Builder. Such services may include but are not limited to test
borings, test pits, determinations of soil bearing values, percolation tests,
evaluations of hazardous materials, ground corrosion and resistivity tests, and
necessary operations for anticipating subsoil conditions. The services of
geotechnical engineer(s) or other consultants shall include preparation and
submission of all appropriate reports and professional recommendations.
2.1.6 The Owner shall disclose, to the extent known to the Owner, the results
and reports of prior tests, inspections or investigations conducted for the
Project involving: structural or mechanical systems; chemical, air and water
pollution; hazardous materials; or other environmental and subsurface
conditions. The Owner shall disclose all information known to the Owner
regarding the presence of pollutants at the Project's site. The Owner shall
furnish a list of all Owner furnished-Owner installed (OFOI) and Owner
Furnished-Contractor Installed (OFCI) equipment completed with cut cheets,
drawings, diagrams, etc. The Owner shall furnish a list of "Sole Source" vendors
whose products or equipment must be used as part of the work.
2.1.7 The Owner shall furnish all legal, accounting and insurance counseling
services as may be necessary at any time for the Project, including such
auditing services as the Owner may require to verify the Design/Builder's
Applications for Payment.
2.1.8 The Owner shall promptly obtain easements, zoning variances, and legal
authorizations regarding site utilization where essential to the execution of
the Owner's program.
2.1.9 Those services, information, surveys, and reports required by Paragraphs
2.1.4 through 2.1.8 which are within the Owner's control shall be furnished at
the Owner's expense, and the Design/Builder shall be entitled to rely upon the
accuracy and completeness thereof, except to the extent the Owner advises the
Design/Builder to the contrary in writing.
2.1.10 If the Owner requires the Design/Builder to maintain any special
insurance coverage, policy, amendment, or rider, the Owner shall pay the
additional cost thereof, except as otherwise stipulated in this Part 1
Agreement.
2.1.11 The Owner shall communicate with persons or entities employed or retained
by the Design/Builder through the Design/Builder, unless otherwise directed by
the Design/Builder.
ARTICLE 3
OWNERSHIP AND USE OF DOCUMENTS
AND ELECTRONIC DATA
3.1 Drawings, specifications, and other documents and electronic data furnished
by the Design/Builder are instruments of service. [intentionally omitted] .
Drawings, specifications, and other documents and electronic data are furnished
for use solely with respect to this Part 1 Agreement. The Owner shall be
permitted to retain copies, including reproducible copies, of the drawings,
specifications, and other documents and electronic data furnished by the
Design/Builder for information and reference in connection with the Project
except as provided in Paragraphs 3.2 and 3.3.
3.2 [intentionally omitted]
3.3 If the Design/Builder defaults in the Design/Builder's obligations to the
Owner, the Architect shall grant a license to the Owner to use the drawings,
specifications, and other documents and electronic data furnished by the
Architect to the Design/Builder for the completion of the Project, conditioned
upon the Owner's execution of an agreement to cure the Design/Builder's default
in payment to the Architect for services previously performed and to indemnify
the Architect with regard to claims arising from such reuse without the
Architect's professional involvement.
3.4 Submission or distribution of the Design/Builder's documents to meet
official regulatory requirements or for similar purposes in connection with the
Project is not to be construed as publication in derogation of the rights
reserved in Paragraph 3. 1.
ARTICLE 4
TIME
4.1 Upon the request of the Owner, the Design/Builder shall prepare a schedule
for the performance of the Basic and Additional Services which shall not exceed
the time limits contained in Paragraph 10.1 and shall include allowances for
periods of time required for the Owner's review and for approval of submissions
by authorities having jurisdiction over the Project. Exhibit "C" Schedule.
4.2 If the Design/Builder is delayed in the performance of services under this
Part 1 Agreement through no fault of the Design/Builder, any applicable schedule
shall be equitably adjusted.
ARTICLE 5
PAYMENTS
5.1 The initial payment provided in Article 9 shall be made upon execution of
this Part 1 Agreement and credited to the Owner's account as provided in
Subparagraph 9.1.2.
5.2 Subsequent payments for Basic Services, Additional Services, and
Reimbursable Expenses provided for in this Part 1 Agreement shall be made
monthly on the basis set forth in Article 9.
5.3 Within ten (10) days of the Owner's receipt of a properly submitted and
correct Application for Payment, the Owner shall make payment to the
Design/Builder.
5.4 Payments due the Design/Builder under this Part 1 Agreement which are not
paid when due shall bear interest from the date due at the rate specified in
Paragraph 9.5, or in the absence of a specified rate, at the legal rate
prevailing where the Project is located.
ARTICLE 6
DISPUTE RESOLUTION-MEDIATION
AND ARBITRATION
6.1 Claims, disputes or other matters in question between the parties to this
Part 1 Agreement arising out of or relating to this Part 1 Agreement or breach
thereof shall be subject to and decided by mediation or arbitration. Such
mediation or arbitration shall be conducted in accordance with the Construction
Industry Mediation or Arbitration Rules of the American Arbitration Association
currently in effect.
6.2 In addition to and prior to arbitration, the parties shall endeavor to
settle disputes by mediation. Demand for mediation shall be filed in writing
with the other party to this Part 1 Agreement and with the American Arbitration
Association. A demand for mediation shall be made within a reasonable time after
the claim, dispute or other matter in question has arisen. In no event shall the
demand for mediation be made after the date when institution of legal or
equitable proceedings based on such claim, dispute or other matter in question
would be barred by the applicable statute of repose or limitations.
6.3 Demand for arbitration shall be filed in writing with the other party to
this Part 1 Agreement and with the American Arbitration Association. A demand
for arbitration shall be made within a reasonable time after the claim, dispute
or other matter in question has arisen. In no event shall the demand for
arbitration be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would be
barred by the applicable statutes of repose or limitations.
6.4 An arbitration pursuant to this Paragraph may be joined with an arbitration
involving common issues of law or fact between the Design/Builder and any person
or entity with whom the Design/Builder has a contractual obligation to arbitrate
disputes. No other arbitration arising out of or relating to this Part 1
Agreement shall include, by consolidation, joinder or in any other manner, an
additional person or entity not a party to this Part 1 Agreement or not a party
to an agreement with the Design/Builder, except by written consent containing a
specific reference to this Part 1 Agreement signed by the Owner, the
Design/Builder and all other persons or entities sought to be joined. Consent to
arbitration involving an additional person or entity shall not constitute
consent to arbitration of any claim, dispute or other matter in question not
described in the written consent or with a person or entity not named or
described therein. The foregoing agreement to arbitrate and other agreements to
arbitrate with an additional person or entity duly consented to by the parties
to this Part 1 Agreement shall be specifically enforceable in accordance with
applicable law in any court having jurisdiction thereof.
6.5 The award rendered by the arbitrator or arbitrators shall be final, and
judgment may be entered upon it in accordance with applicable law in any court
having jurisdiction thereof.
ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 Unless otherwise provided, this Part 1 Agreement shall be governed by the
law of the place where the Project is located.
7.2 The Owner and the Design/Builder, respectively, bind themselves, their
partners, successors, assigns and legal representatives to the other party to
this Part 1 Agreement and to the partners, successors and assigns of such other
party with respect to all covenants of this Part 1 Agreement. Neither the Owner
nor the Design/Builder shall assign this Part 1 Agreement without the written
consent of the other.
7.3 Unless otherwise provided, neither the design for nor the cost of
remediation of hazardous materials shall be the responsibility of the
Design/Builder.
7.4 [intentionally omitted] This Part 1 Agreement may be amended only by written
instrument signed by both the Owner and the Design/Builder.
7.5 Prior to the termination of the services of the Architect or any other
design professional designated in this Part 1 Agreement, the Design/Builder
shall identify to the Owner in writing another architect or design professional
with respect to whom the Owner has no [intentionally omitted] objection, who
will provide the services originally to have been provided by the Architect or
other design professional whose services are being terminated.
ARTICLE 8
TERMINATION OF THE AGREEMENT
8.1 This Part 1 Agreement may be terminated by either party upon seven (7) days'
written notice should the other party fail to perform substantially in
accordance with its terms through no fault of the party initiating the
termination.
8.2 This Part 1 Agreement may be terminated by the Owner without cause upon at
least seven (7) days' written notice to the Design/Builder.
8.3 In the event of termination not the fault of the Design/Builder, the
Design/Builder shall be compensated for services performed to the termination
date, together with Reimbursable Expenses then due and Termination Expenses.
Termination Expenses are expenses directly attributable to termination,
including a reasonable amount for overhead and profit, for which the
Design/Builder is not otherwise compensated under this Part 1 Agreement.
ARTICLE 9
BASIS OF COMPENSATION
The Owner shall compensate the Design/Builder in accordance with Article 5,
Payments, and the other provisions of this Part 1 Agreement as described below.
9.1 COMPENSATION FOR BASIC SERVICES
9.1.1 FOR BASIC SERVICES, compensation shall be as follows:
9.1.2 AN INITIAL PAYMENT of See Part Two Dollars ($ ) shall be made upon
execution of this Part 1 Agreement and credited to the Owner's account as
follows:
9.1.3 SUBSEQUENT PAYMENTS shall be as follows: See Part Two.
9.2 COMPENSATION FOR ADDITIONAL SERVICES
9.2.1 FOR ADDITIONAL SERVICES, compensation shall be as follows: See Part Two.
9.3 REIMBURSABLE EXPENSES
9.3.1 Reimbursable Expenses are in addition to Compensation for Basic and
Additional Services, and include actual expenditures made by the Design/Builder
and the Design/Builder's employees and contractors in the interest of the
Project, as follows:
9.3.2 FOR REIMBURSABLE EXPENSES, compensation shall be a multiple of See Part
Two ( ) times the amounts expended.
9.4 DIRECT PERSONNEL EXPENSE is defined as the direct salaries of personnel
engaged on the Project, and the portion of the cost of their mandatory and
customary contributions and benefits related thereto, such as employment taxes
and other statutory employee benefits, insurance, sick leave, holidays,
vacations, pensions, and similar contributions and benefits.
9.5 INTEREST PAYMENTS
9.5.1 The rate of interest for past due payments shall be as follows: 1% per
month.
(Usury laws and requirements under the Federal Truth in Lending Act, similar
state and local consumer credit laws and other regulations at the Owner's and
Design/Builder's principal places of business, at the location of the Project
and elsewhere may affect the validity of this provision. Specific legal advice
should be obtained with respect to deletion, modification or other requirements,
such as written disclosures or waivers.)
9.6 IF THE SCOPE of the Project is changed materially, the amount of
compensation shall be equitably adjusted.
9.7 The compensation set forth in this Part 1 Agreement shall be equitably
adjusted if through no fault of the Design/Builder the services have not been
completed within Exhibit "C" ( ) months of the date of this Part 1 Agreement.
ARTICLE 10
OTHER CONDITIONS AND SERVICES
10.1 The Basic Services to be performed shall be commenced on and, subject to
authorized adjustments and to delays not caused by the Design/Builder, shall be
completed in (Exhibit "C") calendar days. The Design/Builder's Basic Services
consist of those described in Paragraph 1.3 as part of Basic Services, and
include normal professional engineering and preliminary design services, unless
otherwise indicated.
10.2 Services beyond those described in Paragraph 1.4 are as follows: (Insert
descriptions of other services, identify Additional Services included within
Basic Compensation and modifications to the payment and compensation terms
included in this Agreement.)
10.3 The Owner's preliminary program, budget, and other documents, if any, are
enumerated as follows:
Title Date
Exhibit "A" - CryoLife, Inc. Final Build-Out Interiors dated 10/19/99.
Exhibit "B" - Contract Breakdown (One Page).
Exhibit "C" - Preliminary Project Schedule.
Exhibit "D" - List of Shell Drawings - Phase I (One Page).
Exhibit "El" - Lockwood Greene - Hourly Rate Compensation (One Page).
Exhibit "E2" - Lockwood Greene - Reimbursable Expenses (One Page).
This Agreement entered into as of the day and year first written above.
OWNER DESIGN BUILDER
/s/ Albert E. Heacox /s/ Wm. M. Choate
- - -------------------------------- --------------------------------------
(Signature) (Signature)
Al Heacox, VP - Lab Operators Choate Design & Build Company
- - -------------------------------- --------------------------------------
Cryolife, Inc. (Printed name and title)
- - --------------------------------
(Printed name and title)
Standard Form of Agreements Between
Owner and Design/Builder
AIA Document A191 - Electronic Format
This document comprises two separate Agreements: Part 1 Agreements and Part 2
Agreement. Before executing the Part 1 Agreement, the parties should reach
substantial agreement on the Part 2 Agreement. To the extent referenced in these
Agreements, subordinate parallel agreements to A191 consists of AIA Document
A491, Standard Form of Agreements Between Design/Builder and Contractor, and AIA
Document B901, Standard Form of Agreements Between Design/Builder and Architect.
PART 2 AGREEMENT
1996 EDITION
AGREEMENT
made as of the 19th day of January in the year of Two Thousand.
(In words, indicate day, month and year.)
BETWEEN the Owner:
(Name and address)
CryoLife Inc.
1655 Roberts Blvd, NW
Kennesaw, GA 30144
and the Design/Builder:
(Name and address)
Choate Design & Build Company
1640 Powers Ferry Road
Building 11, Suite 300
Marietta, GA 30067
For the following Project:
(Include Project name, location and a summary description.)
CryoLife, Inc. - Phase II Interiors
1655 Roberts Blvd, NW
Kennesaw, GA 30144
The architectural services described in Article 3 will be provided by the
following person or entity who is lawfully licensed to practice architecture:
(Name and address) (Registration Number) (Relationship to Design/Builder)
Lockwood Greene Engineering, Inc. Subcontractor-Architecture
Inforum, Suite 4000, 250 Williams St. & Engineering
Atlanta, GA 30303-1306
Normal mechanical and electrical engineering services will be provided
contractually through the Architect except as indicated below:
(Name. address and discipline) (Registration Number) (Relationship to Design/Builder)
The Owner and the Design/Builder agree as set forth below.
ARTICLE 1
GENERAL PROVISIONS
1.1 BASIC DEFINITIONS
1.1.1 The Contract Documents consist of the Part 1 Agreement to the extent not
modified by this Part 2 Agreement, this Part 2 Agreement, the Design/Builder's
Proposal and written addenda to the Proposal identified in Article 14, the
Construction Documents approved by the Owner in accordance with Subparagraph
3.2.3 and Modifications issued after execution of this Part 2 Agreement. A
Modification is a Change Order or a written amendment to this Part 2 Agreement
signed by both parties, or a Construction Change Directive issued by the Owner
in accordance with Paragraph 8.3.
1.2.2 The term "Work" means the construction and services provided by the
Design/Builder to fulfill the Design/Builder's obligations.
1.2 EXECUTION, CORRELATION AND INTENT
1.2.1 It is the intent of the Owner and Design/Builder that the Contract
Documents include all items necessary for proper execution and completion of the
Work. The Contract Documents are complementary, and what is required by one
shall be as binding as if required by all; performance by the Design/Builder
shall be required only to the extent consistent with and reasonably inferable
from the Contract Documents as being necessary to produce the intended results.
Words that have well-known technical or construction industry meanings are used
in the Contract Documents in accordance with such recognized meanings.
1.2.2 If the Design/Builder believes or is advised by the Architect or by
another design professional retained to provide services on the Project that
implementation of any instruction received from the Owner would cause a
violation of any applicable law, the Design/Builder shall notify the Owner in
writing. Neither the Design/Builder nor the Architect shall be obligated to
perform any act which either believes will violate any applicable law.
1.2.3 Nothing contained in this Part 2 Agreement shall create a contractual
relationship between the Owner and any person or entity other than the
Design/Builder.
1.3 OWNERSHIP AND USE OF DOCUMENTS
1.3.1 Drawings, specifications, and other documents and electronic data
furnished by the Design/Builder are instruments of service. [intentionally
omitted] . Drawings, specifications, and other documents and electronic data are
furnished for use solely with respect to this Part 2 Agreement. The Owner shall
be permitted to retain copies, including reproducible copies, of the drawings,
specifications, and other documents and electronic data furnished by the
Design/Builder for information and reference in connection with the Project
except as provided in Subparagraphs 1.3.2 and 1.3.3.
1.3.2 Drawings, specifications, and other documents and electronic data
furnished by the Design/Builder shall not be used by the Owner or others on
other projects, for additions to this Project or for completion of this Project
by others, except by agreement in writing and with appropriate compensation to
the Design/Builder, unless the Design/Builder is adjudged to be in default under
this Part 2 Agreement or under any other subsequently executed agreement.
1.3.3 If the Design/Builder defaults in the Design/Builder's obligations to the
Owner, the Architect shall grant a license to the Owner to use the drawings,
specifications, and other documents and electronic data furnished by the
Architect to the Design/Builder for the completion of the Project,
[intentionally omitted] .
1.3.4 Submission or distribution of the Design/Builder's documents to meet
official regulatory requirements or for similar purposes in connection with the
Project is not to be construed as publication in derogation of the rights
reserved in Subparagraph 1.3.1.
ARTICLE 2
OWNER
2.1 The Owner shall designate a representative authorized to act on the Owner's
behalf with respect to the Project. The Owner or such authorized representative
shall examine documents submitted by the Design/Builder and shall render
decisions in a timely manner and in accordance with the schedule accepted by the
Owner. The Owner may obtain independent review of the Contract Documents by a
separate architect, engineer, contractor, or cost estimator under contract to or
employed by the Owner. Such independent review shall be undertaken at the
Owner's expense in a timely manner and shall not delay the orderly progress of
the Work. The Owner designates Al Heacox/Tony Schreiber as the Owner's
Representatives.
2.2 The Owner may appoint an on-site project representative to observe the Work
and to have such other responsibilities as the Owner and Design/Builder agree in
writing.
2.3 The Owner shall cooperate with the Design/Builder in securing building and
other permits, licenses and inspections. The Owner shall not be required to pay
the fees for such permits, licenses and inspections unless the cost of such fees
is excluded from the Design/Builder's Proposal.
2.4 The Owner shall furnish services of land surveyors, geotechnical engineers,
and other consultants for subsoil, air and water conditions, in addition to
those provided under the Part 1 Agreement, when such services are deemed
necessary by the Design/Builder to properly carry out the design services
required by this Part 2 Agreement.
2.5 The Owner shall disclose, to the extent known to the Owner, the results and
reports of prior tests, inspections or investigations conducted for the Project
involving: structural or mechanical systems; chemical, air and water pollution;
hazardous materials; or other environmental and subsurface conditions. The Owner
shall disclose all information known to the Owner regarding the presence of
pollutants at the Project's site.
2.6 The Owner shall furnish all legal, accounting and insurance counseling
services as may be necessary at any time for the Project, including such
auditing services as the Owner may require to verify the Design/Builder's
Applications for Payment.
2.7 Those services, information, surveys and reports required by Paragraphs 2.4
through 2.6 which are within the Owner's control shall be furnished at the
Owner's expense, and the Design/Builder shall be entitled to rely upon the
accuracy and completeness thereof, except to the extent the Owner advises the
Design/Builder to the contrary in writing.
2.8 If the Owner requires the Design/Builder to maintain any special insurance
coverage, policy, amendment, or rider, the Owner shall pay the additional cost
thereof, except as otherwise stipulated in this Part 2 Agreement.
2.9 If the Owner observes or otherwise becomes aware of a fault or defect in the
Work or nonconformity with the Design/Builder's Proposal or the Construction
Documents, the Owner shall give prompt written notice thereof to the
Design/Builder.
2.10 The Owner shall, at the request of the Design/Builder, prior to execution
of this Part 2 Agreement and promptly upon request thereafter, furnish to the
Design/Builder reasonable evidence that financial arrangements have been made to
fulfill the Owner's obligations under the Contract.
2.11 The Owner shall communicate with persons or entities employed or retained
by the Design/Builder through the Design/Builder, unless otherwise directed by
the Design/Builder.
ARTICLE 3
DESIGN/BUILDER
3.1 SERVICES AND RESPONSIBILITIES
3.1.1 Design services required by this Part 2 Agreement shall be performed by
qualified architects and other design professionals. The contractual obligations
of such professional persons or entities are undertaken and performed in the
interest of the Design/Builder.
3.1.2 The agreements between the Design/Builder and the persons or entities
identified in this Part 2 Agreement, and any subsequent modifications, shall be
in writing. These agreements, including financial arrangements with respect to
this Project, shall be promptly and fully disclosed to the Owner upon request.
3.1.3 The Design/Builder shall be responsible to the Owner for acts and
omissions of the Design/Builder's employees, subcontractors and their agents and
employees, and other persons, including the Architect to the extent of the
Architect's professional design liability and other design professionals,
performing any portion of the Design/Builder's obligations under this Part 2
Agreement.
3.2 BASIC SERVICES
3.2.1 The Design/Builder's Basic Services are described below and in Article 14.
3.2.2 The Design/Builder shall designate a representative authorized to act on
the Design/Builder's behalf with respect to the Project.
3.2.3 The Design/Builder shall submit Construction Documents for review and
approval by the Owner. Construction Documents may include drawings,
specifications, and other documents and electronic data setting forth in detail
the requirements for construction of the Work, and shall:
.1 be consistent with the intent of the Design/Builder's Proposal;
.2 provide information for the use of those in the building trades; and
.3 include documents customarily required for regulatory agency
approvals.
3.2.4 The Design/Builder, with the assistance of the Owner, shall file documents
required to obtain necessary approvals of governmental authorities having
jurisdiction over the Project.
3.2.5 Unless otherwise provided in the Contract Documents, the Design/Builder
shall provide or cause to be provided and shall pay for design services, labor,
materials, equipment, tools, construction equipment and machinery, water, heat,
utilities, transportation and other facilities and services necessary for proper
execution and completion of the Work, whether temporary or permanent and whether
or not incorporated or to be incorporated in the Work.
3.2.6 The Design/Builder shall be responsible for all construction means,
methods, techniques, sequences and procedures, and for coordinating all portions
of the Work under this Part 2 Agreement.
3.2.7 The Design/Builder shall keep the Owner informed of the progress and
quality of the Work.
3.2.8 The Design/Builder shall be responsible for correcting Work which does not
conform to the Contract Documents.
3.2.9 The Design/Builder warrants to the Owner that materials and equipment
furnished under the Contract will be of good quality and new unless otherwise
required or permitted by the Contract Documents, that the construction will be
free from faults and defects, and that the construction will conform with the
requirements of the Contract Documents. Construction not conforming to these
requirements, including substitutions not properly approved by the Owner, shall
be corrected in accordance with Article 9.
3.2.10 The Design/Builder shall pay all sales, consumer, use and similar taxes
which had been legally enacted at the time the Design/Builder's Proposal was
first submitted to the Owner, and shall secure and pay for building and other
permits and governmental fees, licenses and inspections necessary for the proper
execution and completion of the Work which are either customarily secured after
execution of a contract for construction or are legally required at the time the
Design/Builder's Proposal was first submitted to the Owner.
3.2.11 The Design/Builder shall comply with and give notices required by laws,
ordinances, rules, regulations and lawful orders of public authorities relating
to the Project.
3.2.12 The Design/Builder shall pay royalties and license fees for patented
designs, processes or products. The Design/Builder shall defend suits or claims
for infringement of patent rights and shall hold the Owner harmless from loss on
account thereof, but shall not be responsible for such defense or loss when a
particular design, process or product of a particular manufacturer is required
by the Owner. However, if the Design/Builder has reason to believe the use of a
required design, process or product is an infringement of a patent, the
Design/Builder shall be responsible for such loss unless such information is
promptly furnished to the Owner.
3.2.13 The Design/Builder shall keep the premises and surrounding area free from
accumulation of waste materials or rubbish caused by operations under this Part
2 Agreement. At the completion of the Work, the Design/Builder shall remove from
the site waste materials, rubbish, the Design/Builder's tools, construction
equipment, machinery, and surplus materials.
3.2.14 The Design/Builder shall notify the Owner when the Design/Builder
believes that the Work or an agreed upon portion thereof is substantially
completed. If the Owner concurs, the Design/Builder shall issue a Certificate of
Substantial Completion which shall establish the Date of Substantial Completion
which shall establish the Date of Substantial Completion, shall state the
responsibility of each party for security, maintenance, heat, utilities, damage
to the Work and insurance, shall include a list of items to be completed or
corrected and shall fix the time within which the Design/Builder shall complete
items listed therein. Disputes between the Owner and Design/Builder regarding
the Certificate of Substantial Completion shall be resolved in accordance with
provisions of Article 10.
3.2.15 The Design/Builder shall maintain at the site for the Owner one record
copy of the drawings, specifications, product data, samples, shop drawings,
Change Orders and other modifications, in good order and regularly updated to
record the completed construction. These shall be delivered to the Owner upon
completion of construction and prior to final payment.
3.3 ADDITIONAL SERVICES
3.3.1 The services described in this Paragraph 3.3 are not included in Basic
Services unless so identified in Article 14, and they shall be paid for by the
Owner as provided in this Part 2 Agreement, in addition to the compensation for
Basic Services. The services described in this Paragraph 3.3 shall be provided
only if authorized or confirmed in writing by the Owner.
3.3.2 Making revisions in drawings, specifications, and other documents or
electronic data when such revisions are required by the enactment or revision of
codes, laws or regulations subsequent to the preparation of such documents or
electronic data.
3.3.3 Providing consultation concerning replacement of Work damaged by fire or
other cause during construction, and furnishing services required in connection
with the replacement of such Work.
3.3.4 Providing services in connection with a public hearing, arbitration
proceeding or legal proceeding, except where the Design/Builder is a party
thereto.
3.3.5 Providing coordination of construction performed by the Owner's own forces
or separate contractors employed by the Owner, and coordination of services
required in connection with construction performed and equipment supplied by the
Owner.
3.3.6 Preparing a set of reproducible record documents or electronic data
showing significant changes in the Work made during construction.
3.3.7 Providing assistance in the utilization of equipment or systems such as
preparation of operation and maintenance manuals, training personnel for
operation and maintenance [intentionally omitted] .
ARTICLE 4
TIME
4.1 Unless otherwise indicated, the Owner and the Design/Builder shall perform
their respective obligations expeditiously as is consistent with reasonable
skill and care and the orderly progress of the Project.
4.2 Time limits stated in the Contract Documents are of the essence. The Work to
be performed under this Part 2 Agreement shall commence upon receipt of a notice
to proceed unless otherwise agreed and, subject to authorized Modifications,
Substantial Completion shall be achieved on or before the date established in
Article 14.
4.3 Substantial Completion is the stage in the progress of the Work when the
Work or designated portion thereof is sufficiently complete in accordance with
the Contract Documents so the Owner can occupy or utilize the Work for its
intended use.
4.4 Based on the Design/Builder's Proposal, a construction schedule shall be
provided consistent with Paragraph 4.2 above.
4.5 If the Design/Builder is delayed at any time in the progress of the Work by
an act or neglect of the Owner, Owner's employees, or separate contractors
employed by the Owner, or by changes ordered in the Work, or by labor disputes,
fire, unusual delay in deliveries, adverse weather conditions not reasonably
anticipatable, unavoidable casualties or other causes beyond the
Design/Builder's control, or by delay authorized by the Owner pending
arbitration, or by other causes which the Owner and Design/Builder agree may
justify delay, then the Contract Time shall be reasonably extended by Change
Order.
ARTICLE 5
PAYMENTS
5.1 PROGRESS PAYMENTS
5.1.1 The Design/Builder shall deliver to the Owner itemized Applications for
Payment in such detail as indicated in Article 14.
5.1.2 Within ten (10) days of the Owner's receipt of a properly submitted and
correct Application for Payment, the Owner shall make payment to the
Design/Builder.
5.1.3 The Application for Payment shall constitute a representation by the
Design/Builder to the Owner that the design and construction have progressed to
the point indicated; the quality of the Work covered by the application is in
accordance with the Contract Documents; and the Design/Builder is entitled to
payment in the amount requested.
5.1.4 Upon receipt of payment from the Owner, the Design/Builder shall promptly
pay the Architect, other design professionals and each contractor the amount to
which each is entitled in accordance with the terms of their respective
contracts.
5.1.5 The Owner shall have no obligation under this Part 2 Agreement to pay or
to be responsible in any way for payment to the Architect, another design
professional, or a contractor performing portions of the work.
5.1.6 Neither progress payment nor partial or entire use or occupancy of the
Project by the Owner shall constitute an acceptance of Work not in accordance
with the Contract Documents.
5.1.7 The Design/Builder warrants that title to all construction covered by an
Application for Payment will pass to the Owner no later than the time of
payment. The Design/Builder further warrants that upon submittal of an
Application for Payment all construction for which payments have been received
from the Owner shall be free and clear of liens, claims, security interests or
encumbrances in favor of the Design/Builder or any other person or entity
performing construction at the site or furnishing materials or equipment
relating to the construction.
5.1.8 At the time of Substantial Completion, the Owner shall pay the
Design/Builder the retainage, if any, less reasonable cost to correct or
complete incorrect or incomplete Work. Final payment of such withheld sum shall
be made upon correction or completion of such Work.
Insert A:
5.2 FINAL PAYMENT
5.2.1 Neither final payment nor amounts retained, if any, shall become due until
the Design/Builder submits to the Owner (1) an affidavit that payrolls, bills
for materials and equipment, and other indebtedness connected with the Work for
which the Owner or Owner's property might be responsible or encumbered (less
amounts withheld by the Owner) have been paid or otherwise satisfied; (2) a
certificate evidencing that insurance required by the Contract Documents to
remain in force after final payment is currently in effect and will not be
canceled or allowed to expire until at least 30 days' prior written notice has
been given to the Owner; (3) a written statement that the Design/Builder knows
of no substantial reason that the insurance will not be renewable to cover the
period required by the Contract Documents; (4) consent of surety, if any, to
final payment; and (5) if required by the Owner, other data establishing payment
or satisfaction of obligations, such as receipts, releases and waivers of liens,
claims, security interests or encumbrances arising out of the Contract, to the
extent and in such form as may be designed by the Owner. If a contractor or
other person or entity entitled to assert a lien against the Owner's property
refuses to furnish a release or waiver required by the Owner, the Design/Builder
may furnish a bond satisfactory to the Owner to indemnify the Owner against such
lien. If such lien remains unsatisfied after payments are made, the
Design/Builder shall indemnify the Owner for all loss and cost, including
reasonable attorneys' fees incurred as a result of such lien. (6) Completion of
all punch list items.
5.2.2 When the Work has been completed and the contract fully performed, the
Design/Builder shall submit a final application for payment to the Owner, who
shall make final payment within 30 days of receipt.
5.2.3 The making of final payment shall constitute a waiver of claims by the
Owner except those arising from:
.1 liens, claims, security interests or encumbrances arising out of the
Contract and unsettled;
.2 failure of the Work to comply with the requirements of the Contract
Documents; or
.3 terms of special warranties required by the Contract Documents.
5.2.4 Acceptance of final payment shall constitute a waiver of all claims by the
Design/Builder except those previously made in writing and identified by the
Design/Builder as unsettled at the time of final Application for Payment. The
Owner shall reserve the right to review the Design/Builder's accounting files
for up to 12 months after the date of Substantial Completion.
5.3 INTEREST PAYMENTS
5.3.1 Payments due the Design/Builder under this Part 2 Agreement which are not
paid when due shall bear interest from the date due at the rate specified in
Article 13, or in the absence of a specified rate, at the legal rate prevailing
where the Project is located.
ARTICLE 6
PROTECTION OF PERSONS AND PROPERTY
6.1 The Design/Builder shall be responsible for initiating, maintaining and
providing supervision of all safety precautions and programs in connection with
the performance of this Part 2 Agreement.
6.2 The Design/Builder shall take reasonable precautions for the safety of, and
shall provide reasonable protection to prevent damage, injury or loss to: (1)
employees on the Work and other persons who may be affected thereby; (2) the
Work and materials and equipment to be incorporated therein, whether in storage
on or off the site, under care, custody, or control of the Design/Builder or the
Design/Builder's contractors; and (3) other property at or adjacent thereto,
such as trees, shrubs, lawns, walks, pavements, roadways, structures and
utilities not designated for removal relocation, or replacement in the course of
construction.
6.3 The Design/Builder shall give notices and comply with applicable laws,
ordinances, rules, regulations and lawful orders of public authorities bearing
on the safety of persons or property or their protection from damage, injury or
loss.
6.4 The Design/Builder shall promptly remedy damage and loss (other than damage
or loss insured under property insurance provided or required by the Contract
Documents) to property at the site caused in whole or in part by the
Design/Builder, a contractor of the Design/Builder or anyone directly or
indirectly employed by any of them, or by anyone for whose acts they may be
liable.
ARTICLE 7
INSURANCE AND BONDS
7.1 DESIGN/BUILDER'S LIABILITY INSURANCE
7.1.1 The Design/Builder shall purchase from and maintain, in a company or
companies lawfully authorized to do business in the jurisdiction in which the
Project is located, such insurance as will protect the Design/Builder from
claims set forth below which may arise out of or result from operations under
this Part 2 Agreement by the Design/Builder or by a contractor of the
Design/Builder, or by anyone directly or indirectly employed by any of them, or
by anyone for whose acts any of them may be liable:
.1 claims under workers' compensation, disability benefit and other
similar employee benefit laws that are applicable to the Work to be
performed;
.2 claims for damages because of bodily injury, occupational sickness or
disease, or death of the Design/Builder's employees;
.3 claims for damages because of bodily injury, sickness or disease, or
death of persons other than the Design/Builder's employees;
.4 claims for damages covered by usual personal injury liability coverage
which are sustained (1) by a person as a result of an offense directly
or indirectly related to employment of such person by the
Design/Builder or (2) by another person;
.5 claims for damages, other than to the Work itself, because of injury
to or destruction of tangible property, including loss of use
resulting therefrom;
.6 claims for damages because of bodily injury, death of a person or
property damage arising out of ownership, maintenance or use of a
motor vehicle; and
.7 claims involving contractual liability insurance applicable to the
Design/Builder's obligations under Paragraph 11.5.
7.1.2 The insurance required by Subparagraph 7.1.1 shall be written for not less
than limits of liability specified in this Part 2 Agreement or required by law,
whichever coverage is greater. Coverages, whether written on an occurrence or
claims-made basis, shall be maintained without interruption from date of
commencement of the Work until date of final payment and termination of any
coverage required to be maintained after final payment.
7.1.3 Certificates of Insurance acceptable to the Owner shall be delivered to
the Owner immediately after execution of this Part 2 Agreement. These
Certificates and the insurance policies required by this Paragraph 7.1 shall
contain a provision that coverages afforded under the policies will not be
canceled or allowed to expire until at least 30 days' prior written notice has
been given to the Owner. If any of the foregoing insurance coverages are
required to remain in force after final payment, an additional certificate
evidencing continuation of such coverage shall be submitted with the application
for final payment. Information concerning reduction of coverage shall be
furnished by the Design/Builder with reasonable promptness in accordance with
the Design/Builder's information and belief.
7.2 OWNER'S LIABILITY INSURANCE
7.2.1 The Owner shall be responsible for purchasing and maintaining the Owner's
usual liability insurance. Optionally, the Owner may purchase and maintain other
insurance for self-protection against claims which may arise from operations
under this Part 2 Agreement. The Design/Builder shall not be responsible for
purchasing and maintaining this optional Owner's liability insurance unless
specifically required by the Contract Documents.
7.3 PROPERTY INSURANCE
7.3.1 Unless otherwise provided under this Part 2 Agreement, the Owner shall
purchase and maintain, in a company or companies authorized to do business in
the jurisdiction in which the principal improvements are to be located, property
insurance upon the Work to the full insurable value thereof on a replacement
cost basis without optional deductibles. Such property insurance shall be
maintained, unless otherwise provided in the Contract Documents or otherwise
agreed in writing by all persons and entities who are beneficiaries of such
insurance, until final payment has been made or until no person or entity other
than the Owner has an insurable interest in the property required by this
Paragraph 7.3 to be insured, whichever is earlier. This insurance shall include
interests of the Owner, the Design/Builder, and their respective contractors and
subcontractors in the Work.
7.3.2 Property insurance shall be on an all-risk policy form and shall insure
against the perils of fire and extended coverage and physical loss or damage
including, without duplication of coverage, theft, vandalism, malicious
mischief, collapse, falsework, temporary buildings and debris removal including
demolition occasioned by enforcement of any applicable legal requirements, and
shall cover reasonable compensation for the services and expenses of the
Design/Builder's Architect and other professionals required as a result of such
insured loss. Coverage for other perils shall not be required unless otherwise
provided in the Contract Documents.
7.3.3 If the Owner does not intend to purchase such property insurance required
by this Part 2 Agreement and with all of the coverages in the amount described
above, the Owner shall so inform the Design/Builder prior to commencement of the
construction. The Design/Builder may then effect insurance which will protect
the interests of the Design/Builder and the Design/Builder's contractors in the
construction, and by appropriate Change Order the cost thereof shall be charged
to the Owner. If the Design/Builder is damaged by the failure or neglect of the
Owner to purchase or maintain insurance as described above, then the Owner shall
bear all reasonable costs properly attributable thereto.
7.3.4 Unless otherwise provided, the Owner shall purchase and maintain such
boiler and machinery insurance required by this Part 2 Agreement or by law,
which shall specifically cover such insured objects during installation and
until final acceptance by the Owner. This insurance shall include interests of
the Owner, the Design/Builder, the Design/Builder's contractors and
subcontractors in the Work, and the Design/Builder's Architect and other design
professionals. The Owner and the Design/Builder shall be named insureds.
7.3.5 A loss insured under the Owner's property insurance shall be adjusted by
the Owner as trustee and made payable to the Owner as trustee for the insureds,
as their interests may appear, subject to requirements of any applicable
mortgagee clause and of Subparagraph 7.3.10. The Design/Builder shall pay
contractors their shares of insurance proceeds received by the Design/Builder,
and by appropriate agreement, written where legally required for validity, shall
require contractors to make payments to their subcontractors in similar manner.
7.3.6 Before an exposure to loss may occur, the Owner shall file with the
Design/Builder a copy of each policy that includes insurance coverages required
by this Paragraph 7.3. Each policy shall contain all generally applicable
conditions, definitions, exclusions and endorsements related to this Project.
Each policy shall contain a provision that the policy will not be canceled or
allowed to expire until at least 30 days' prior written notice has been given to
the Design/Builder.
7.3.7 If the Design/Builder requests in writing that insurance for risks other
than those described herein or for other special hazards be included in the
property insurance policy, the Owner shall, if possible, obtain such insurance,
and the cost thereof shall be charged to the Design/Builder by appropriate
Change Order.
7.3.8 The Owner and the Design/Builder waive all rights against each other and
the Architect and other design professionals, contractors, subcontractors,
agents and employees, each of the other, for damages caused by fire or other
perils to the extent covered by property insurance obtained pursuant to this
Paragraph 7.3 or other property insurance applicable to the Work, except such
rights as they may have to proceeds of such insurance held by the Owner as
trustee. The Owner or Design/Builder, as appropriate, shall require from
contractors and subcontractors by appropriate agreements, written where legally
required for validity, similar waivers each in favor of other parties enumerated
in this Paragraph 7.3. The policies shall provide such waivers of subrogation by
endorsement or otherwise. A waiver of subrogation shall be effective as to a
person or entity even though that person or entity would otherwise have a duty
of indemnification, contractual or otherwise, did not pay the insurance premium
directly or indirectly, and whether or not the person or entity had an insurable
interest in the property damaged.
7.3.9 If required in writing by a party in interest, the Owner as trustee shall,
upon occurrence of an insured loss, give bond for proper performance of the
Owner's duties. The cost of required bonds shall be charged against proceeds
received as fiduciary. The Owner shall deposit in a separate account proceeds so
received, which the Owner shall distribute in accordance with such agreement as
the parties in interest may reach, or in accordance with an arbitration award in
which case the procedure shall be as provided in Article 10. If after such loss
no other special agreement is made, replacement of damaged Work shall be covered
by appropriate Change Order.
7.3.10 The Owner as trustee shall have power to adjust and settle a loss with
insurers unless one of the parties in interest shall object in writing, within
five (5) days after occurrence of loss to the Owner's exercise of this power; if
such objection be made, the parties shall enter into dispute resolution under
procedures provided in Article 10. If distribution of insurance proceeds by
arbitration is required, the arbitrators will direct such distribution.
7.3.11 Partial occupancy or use prior to Substantial Completion shall not
commence until the insurance company or companies providing property insurance
have consented to such partial occupancy or use by endorsement or otherwise. The
Owner and the Design/Builder shall take reasonable steps to obtain consent of
the insurance company or companies and shall not, without mutual written
consent, take any action with respect to partial occupancy or use that would
cause cancellation, lapse or reduction of coverage.
7.4 LOSS OF USE INSURANCE
7.4.1 The Owner, at the Owner's option, may purchase and maintain such insurance
as will insure the Owner against loss of use of the Owner's property due to fire
or other hazards, however caused. The Owner waives all rights of action against
the Design/Builder for loss of use of the Owner's property, including
consequential losses due to fire or other hazards, however caused.
ARTICLE 8
CHANGES IN THE WORK
8.1 CHANGES
8.1.1 Changes in the Work may be accomplished after execution of this Part 2
Agreement, without invalidating this Part 2 Agreement, by Change Order,
Construction Change Directive, or order for a minor change in the Work, subject
to the limitations stated in the Contract Documents.
8.1.2 A Change Order shall be based upon agreement between the Owner and the
Design/Builder; a Construction Change Directive may be issued by the Owner
without the agreement of the Design/Builder; an order for a minor change in the
Work may be issued by the Design/Builder alone.
8.1.3 Changes in the Work shall be performed under applicable provisions of the
Contract Documents, and the Design/Builder shall proceed promptly, unless
otherwise provided in the Change Order, Construction Change Directive, or order
for a minor change in the Work.
8.1.4 If unit prices are stated in the Contract Documents or subsequently agreed
upon, and if quantities originally contemplated are so changed in a proposed
Change Order or Construction Change Directive that application of such unit
prices to quantities of Work proposed will cause substantial inequity to the
Owner or the Design/Builder, the applicable unit prices shall be equitably
adjusted.
8.2 CHANGE ORDERS
8.2.1 A Change Order is a written instrument prepared by the Design/Builder and
signed by the Owner and the Design/Builder, stating their agreement upon all of
the following:
.1 a change in the Work;
.2 the amount of the adjustment, if any, in the Contract Sum; and
.3 the extent of the adjustment, if any, in the Contract Time.
8.2.2 If the Owner requests a proposal for a change in the Work from the
Design/Builder and subsequently elects not to proceed with the change, a Change
Order shall be issued to reimburse the Design/Builder for any costs incurred for
estimating services, design services or preparation of proposed revisions to the
Contract Documents.
8.3 CONSTRUCTION CHANGE DIRECTIVES
8.3.1 A Construction Change Directive is a written order prepared and signed by
the Owner, directing a change in the Work prior to agreement on adjustment, if
any, in the Contract Sum or Contract Time, or both.
8.3.2 Except as otherwise agreed by the Owner and the Design/Builder, the
adjustment to the Contract Sum shall be determined on the basis of reasonable
expenditures and savings of those performing the Work attributable to the
change, including the expenditures for design services and revisions to the
Contract Documents. In case of an increase in the Contract Sum, the cost shall
include a reasonable allowance for overhead and profit. In such case, the
Design/Builder shall keep and present an itemized accounting together with
appropriate supporting data for inclusion in a Change Order. Unless otherwise
provided in the Contract Documents, costs for these purposes shall be limited to
the following:
.1 costs of labor, including social security, old age and unemployment
insurance, fringe benefits required by agreement or custom, and
workers' compensation insurance;
.2 costs of materials, supplies and equipment, including cost of
transportation, whether incorporated or consumed;
.3 rental costs of machinery and equipment exclusive of hand tools,
whether rented from the Design/Builder or others;
.4 costs of premiums for all bonds and insurance permit fees, and sales,
use or similar taxes;
.5 additional costs of supervision and field office personnel directly
attributable to the change; and fees paid to the Architect, engineers
and other professionals.
8.3.3 Pending final determination of cost to the Owner, amounts not in dispute
may be included in Applications for Payment. The amount of credit to be allowed
by the Design/Builder to the Owner for deletion or change which results in a net
decrease in the Contract Sum will be actual net cost. When both additions and
credits covering related Work or substitutions are involved in a change, the
allowance for overhead and profit shall be figured on the basis of the net
increase, if any, with respect to that change.
8.3.4 When the Owner and the Design/Builder agree upon the adjustments in the
Contract Sum and Contract Time, such agreement shall be effective immediately
and shall be recorded by preparation and execution of an appropriate Change
Order.
8.4 MINOR CHANGES IN THE WORK
8.4.1 The Design/Builder shall have authority to make minor changes in the
Construction Documents and construction consistent with the intent of the
Contract Documents when such minor changes do not involve adjustment in the
Contract Sum or extension of the Contract Time. The Design/Builder shall
promptly inform the Owner, in writing, of minor changes in the Construction
Documents and construction.
8.5 CONCEALED CONDITIONS
8.5.1 If conditions are encountered at the site which are (1) subsurface or
otherwise concealed physical conditions which differ materially from those
indicated in the Contract Documents, or (2) unknown physical conditions of an
unusual nature which differ materially from those ordinarily found to exist and
generally recognized as inherent in construction activities of the character
provided for in the Contract Documents, then notice by the observing party shall
be given to the other party promptly before conditions are disturbed and in no
event later than 21 days after first observance of the conditions. The Contract
Sum shall be equitably adjusted for such concealed or unknown conditions by
Change Order upon claim by either party made within 21 days after the claimant
becomes aware of the conditions.
8.6 REGULATORY CHANGES
8.6.1 The Design/Builder shall be compensated for changes in the construction
necessitated by the enactment or revisions of codes, laws or regulations
subsequent to the submission of the Design/Builder's Proposal.
ARTICLE 9
CORRECTION OF WORK
9.1 The Design/Builder shall promptly correct Work rejected by the Owner or
known by the Design/Builder to be defective or failing to conform to the
requirements of the Contract Documents, whether observed before or after
Substantial Completion and whether or not fabricated, installed or completed.
The Design/Builder shall bear costs of correcting such rejected Work, including
additional testing and inspections.
9.2 If, within one (1) year after the date of Substantial Completion of the Work
or, after the date for commencement of warranties established in a written
agreement between the Owner and the Design/Builder, or by terms of an applicable
special warranty required by the Contract Documents, any of the Work is found to
be not in accordance with the requirements of the Contract Documents, the
Design/Builder shall correct it promptly after receipt of a written notice from
the Owner to do so unless the Owner has previously given the Design/ Builder a
written acceptance of such condition.
9.3 Nothing contained in this Article 9 shall be construed to establish a period
of limitation with respect to other obligations which the Design/Builder might
have under the Contract Documents. Establishment of the time period of one (1)
year as described in Subparagraph 9.2 relates only to the specific obligation of
the Design/Builder to correct the Work, and has no relationship to the time
within which the obligation to comply with the Contract Documents may be sought
to be enforced, nor to the time within which proceedings may be commenced to
establish the Design/Builder's liability with respect to the Design/Builder's
obligations other than specifically to correct the Work.
9.4 If the Design/Builder fails to correct nonconforming Work as required or
fails to carry out Work in accordance with the Contract Documents, the Owner, by
written order signed personally or by an agent specifically so empowered by the
Owner in writing, may order the Design/Builder to stop the Work, or any portion
thereof, until the cause for such order has been eliminated; however, the
Owner's right to stop the Work shall not give rise to a duty on the part of the
Owner to exercise the right for benefit of the Design/Builder or other persons
or entities.
9.5 If the Design/Builder defaults or neglects to carry out the Work in
accordance with the Contract Documents and fails within seven (7) days after
receipt of written notice from the Owner to commence and continue correction of
such default or neglect with diligence and promptness, the Owner may give a
second written notice to the Design/Builder and, seven (7) days following
receipt by the Design/Builder of that second written notice and without
prejudice to other remedies the Owner may have, correct such deficiencies. In
such case an appropriate Change Order shall be issued deducting from payments
then or thereafter due the Design/ Builder, the costs of correcting such
deficiencies. If the payments then or thereafter due the Design/Builder are not
sufficient to cover the amount of the deduction, the Design/Builder shall pay
the difference to the Owner. Such action by the Owner shall be subject to
dispute resolution procedures as provided in Article 10.
ARTICLE 10
DISPUTE RESOLUTION--
MEDIATION AND ARBITRATION
10.1 Claims, disputes or other matters in question between the parties to this
Part 2 Agreement arising out of or relating to this Part 2 Agreement or breach
thereof shall be subject to and decided by mediation or arbitration. Such
mediation or arbitration shall be conducted in accordance with the Construction
Industry Mediation or Arbitration Rules of the American Arbitration Association
currently in effect.
10.2 In addition to and prior to arbitration, the parties shall endeavor to
settle disputes by mediation. Demand for mediation shall be filed in writing
with the other party to this Part 2 Agreement and with the American Arbitration
Association. A demand for mediation shall be made within a reasonable time after
the claim, dispute, or other matter in question has arisen. In no event shall
the demand for mediation be made after the date when institution of legal or
equitable proceedings based on such claim, dispute or other matter in question
would be barred by the applicable statutes of repose or limitations.
10.3 Demand for arbitration shall be filed in writing with the other party to
this Part 2 Agreement and with the American Arbitration Association. A demand
for arbitration shall be made within a reasonable time after the claim, dispute
or other matter in question has arisen. In no event shall the demand for
arbitration be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would be
barred by the applicable statutes of repose or limitations.
10.4 An arbitration pursuant to this Article may be joined with an arbitration
involving common issues of law or fact between the Design/Builder and any person
or entity with whom the Design/Builder has a contractual obligation to arbitrate
disputes. No other arbitration arising out of or relating to this Part 2
Agreement shall include, by consolidation, joinder or in any other manner, an
additional person or entity not a party to this Part 2 Agreement or not a party
to an agreement with the Design/Builder, except by written consent containing a
specific reference to this Part 2 Agreement signed by the Owner, the
Design/Builder and any other person or entities sought to be joined. Consent to
arbitration involving an additional person or entity shall not constitute
consent to arbitration of any claim, dispute or other matter in question not
described in the written consent or with a person or entity not named or
described therein. The foregoing agreement to arbitrate and other agreements to
arbitrate with an additional person or entity duly consented to by the parties
to this Part 2 Agreement shall be specifically enforceable in accordance with
applicable law in any court having jurisdiction thereof.
10.5 The award rendered by the arbitrator or arbitrators shall be final, and
judgment may be entered upon it in accordance with applicable law in any court
having jurisdiction thereof.
ARTICLE 11
MISCELLANEOUS PROVISIONS
11.1 Unless otherwise provided, this Part 2 Agreement shall be governed by the
law of the place where the Project is located.
11.2 SUBCONTRACTS
11.2.1 The Design/Builder, as soon as practicable after execution of this Part 2
Agreement, shall furnish to the Owner in writing the names of the persons or
entities the Design/Builder will engage as contractors for the Project. The
Owner will be given 5 days to approve the Subcontractors and Entities of the
Design/Builder or show a reasonable objection for rejection of a Subcontractor
or Entity. After Owner's approval, the Design/Builder may not release a
Subcontractor or entity without written approval from the Owner, unless the
Subcontractor or entity fails to perform the work as outlined in the Contract
Documents.
11.3 WORK BY OWNER OR OWNER'S CONTRACTORS
11.3.1 The Owner reserves the right to perform construction or operations
related to the Project with the Owner's own forces, and to award separate
contracts in connection with other portions of the Project or other construction
or operations on the site under conditions of insurance and waiver of
subrogation identical to the provisions of this Part 2 Agreement. If the
Design/Builder claims that delay or additional cost is involved because of such
action by the Owner, the Design/Builder shall assert such claims as provided in
Subparagraph 11.4.
11.3.2 The Design/Builder shall afford the Owner's separate contractors
reasonable opportunity for introduction and storage of their materials and
equipment and performance of their activities and shall connect and coordinate
the Design/Builder's construction and operations with theirs as required by the
Contract Documents.
11.3.3 Costs caused by delays or by improperly timed activities or defective
construction shall be borne by the party responsible therefor.
11.4 CLAIMS FOR DAMAGES
11.4.1 If either party to this Part 2 Agreement suffers injury or damage to
person or property because of an act or omission of the other party, of any of
the other party's employees or agents, or of others for whose acts such party is
legally liable, written notice of such injury or damage, whether or not insured,
shall be given to the other party within a reasonable time not exceeding 21 days
after first observance. The notice shall provide sufficient detail to enable the
other party to investigate the matter. If a claim of additional cost or time
related to this claim is to be asserted, it shall be filed in writing.
11.5 INDEMNIFICATION
11.5.1 To the fullest extent permitted by law, the Design/Builder shall
indemnify and hold harmless the Owner, Owner's consultants, and agents and
employees of any of them from and against claims, damages, losses and expenses,
including but not limited to attorneys' fees, arising out of or resulting from
performance of the Work, provided that such claim, damage, loss or expense is
attributable to bodily injury, sickness, disease or death, or to injury to or
destruction of tangible property (other than the Work itself) including loss of
use resulting therefrom, but only to the extent caused in whole or in part by
negligent acts or omissions of the Design/Builder, anyone directly or indirectly
employed by the Design/Builder or anyone for whose acts the Design/Builder may
be liable, regardless of whether or not such claim, damage, loss or expense is
caused in part by a party indemnified hereunder. Such obligation shall not be
construed to negate, abridge, or reduce other rights or obligations of indemnity
which would otherwise exist as to a party or person described in this Paragraph
11.5.
11.5.2 In claims against any person or entity indemnified under this Paragraph
11.5 by an employee of the Design/Builder, anyone directly or indirectly
employed by the Design/Builder or anyone for whose acts the Design/Builder may
be liable, the indemnification obligation under this Paragraph 11.5 shall not be
limited by a limitation on amount or type of damages, compensation or benefits
payable by or for the Design/Builder under workers' compensation acts,
disability benefit acts or other employee benefit acts.
11.6 SUCCESSORS AND ASSIGNS
11.6.1 The Owner and Design/Builder, respectively, bind themselves, their
partners, successors, assigns and legal representatives to the other party to
this Part 2 Agreement and to the partners, successors and assigns of such other
party with respect to all covenants of this Part 2 Agreement. Neither the Owner
nor the Design/Builder shall assign this Part 2 Agreement without the written
consent of the other. The Owner may assign this Part 2 Agreement to any
institutional lender providing construction financing, and the Design/Builder
agrees to execute all consents reasonably required to facilitate such an
assignment. If either party makes such an assignment, that party shall
nevertheless remain legally responsible for all obligations under this Part 2
Agreement, unless otherwise agreed by the other party.
11.7 TERMINATION OF PROFESSIONAL DESIGN SERVICES
11.7.1 Prior to termination of the services of the Architect or any other design
professional designated in this Part 2 Agreement, the Design/Builder shall
identify to the Owner in writing another architect or other design professional
with respect to whom the Owner has no objection, who will provide the services
originally to have been provided by the Architect or other design professional
whose services are being terminated. Owner must approve termination of
Architect.
11.8 EXTENT OF AGREEMENT
11.8.1 This Part 2 Agreement represents the entire agreement between the Owner
and the Design/Builder and supersedes prior negotiations, representations or
agreements, either written or oral. This Part 2 Agreement may be amended only by
written instrument and signed by both the Owner and the Design/Builder.
ARTICLE 12
TERMINATION OF THE AGREEMENT
12.1 TERMINATION BY THE OWNER
12.1.1 This Part 2 Agreement may be terminated by the Owner upon 14 days'
written notice to the Design/Builder in the event that the Project is abandoned.
If such termination occurs, the Owner shall pay the Design/Builder for Work
completed and for proven loss sustained upon materials, equipment, tools, and
construction equipment and machinery, including reasonable profit and applicable
damages.
12.1.2 If the Design/Builder defaults or persistently fails or neglects to carry
out the Work in accordance with the Contract Documents or fails to perform the
provisions of this Part 2 Agreement, the Owner may give written notice that the
Owner intends to terminate this Part 2 Agreement. If the Design/Builder fails to
correct the defaults, failure or neglect within seven (7) days after being given
notice, the Owner may then give a second written notice and, after an additional
seven (7) days, the Owner may without prejudice to any other remedy terminate
the employment of the Design/Builder and take possession of the site and of all
materials, equipment, tools and construction equipment and machinery thereon
owned by the Design/Builder and finish the Work by whatever method the Owner may
deem expedient. If the unpaid balance of the Contract Sum exceeds the expense of
finishing the Work and all damages incurred by the Owner, such excess shall be
paid to the Design/Builder. If the expense of completing the Work and all
damages incurred by the Owner exceeds the unpaid balance, the Design/Builder
shall pay the difference to the Owner. This obligation for payment shall survive
termination of this Part 2 Agreement.
12.2 TERMINATION BY THE DESIGN/BUILDER
12.2.1 If the Owner fails to make payment when due, the Design/Builder may give
written notice of the Design/Builder's intention to terminate this Part 2
Agreement. If the Design/Builder fails to receive payment within seven (7) days
after receipt of such notice by the Owner, the Design/Builder may give a second
written notice and, seven (7) days after receipt of such second written notice
by the Owner, may terminate this Part 2 Agreement and recover from the Owner
payment for Work executed and for proven losses sustained upon materials,
equipment, tools, and construction equipment and machinery, including reasonable
profit and applicable damages.
ARTICLE 13
BASIS OF COMPENSATION
The Owner shall compensate the Design/Builder in accordance with Article 5,
Payments, and the other provisions of this Part 2 Agreement as described below.
13.1 COMPENSATION
13.1.1 For the Design/Builder's performance of the Work, as described in
Paragraph 3.2 and including any other services listed in Article 14 as part of
Basic Services, the Owner shall pay the Design/Builder in current funds the
Contract Sum as follows: Exhibit "B".
13.1.2 For Additional Services, as described in Paragraph 3.3 and including any
other services listed in Article 14 as Additional Services, compensation shall
be as follows:
13.2 REIMBURSABLE EXPENSES
13.2.1 Reimbursable Expenses are in addition to the compensation for Basic and
Additional Services, and include actual expenditures made by the Design/Builder
and the Design/Builder's employees and contractors in the interest of the
Project, as follows:
13.2.2 FOR REIMBURSABLE EXPENSES, compensation shall be a multiple of ( ) times
the amounts expended.
13.3 INTEREST PAYMENTS
13.3.1 The rate of interest for past due payments shall be as follows: 1% per
month.
(Usury laws and requirements under the Federal Truth in Lending Act, similar
State and local consumer credit laws and other regulations at the Owner's and
Design/Builder's principal places of business, at the location of the Project
and elsewhere may affect the validity of this provision. Specific legal advice
should be obtained with respect to deletion, modification or other requirements,
such as written disclosures or waivers.)
ARTICLE 14
OTHER CONDITIONS AND SERVICES
14.1 The Basic Services to be performed shall be commenced on and, subject to
authorized adjustments and to delays not caused by the Design/Builder,
Substantial Completion shall be achieved in the Contract Time of ( ) calendar
days.
14.2 The Basic Services beyond those described in Article 3 are as follows:
14.3 Additional Services beyond those described in Article 3 are as follows:
14.4 The Design/Builder shall submit an Application for Payment on the ( ) day
of each month.
14.5 The Design/Builder's Proposal includes the following documents:
(List the documents by specific title and date; include any required performance
and payment bonds.)
Title Date
Exhibit "A" - CryoLife, Inc. Final Build-Out Interiors dated 10/19/99.
Exhibit "B" - Contract Breakdown (One Page).
Exhibit "C" - Preliminary Project Schedule.
Exhibit "D" - List of Shell Drawings - Phase I (One Page).
Exhibit "E1" - Lockwood Greene - Hourly Rate Compensation (One Page).
Exhibit "E2" - Lockwood Greene - Reimbursable Expenses (One Page)This Agreement
entered into as of the day and year first written above.
OWNER DESIGN BUILDER
/s/ Albert E. Heacox /s/ Wm. M. Choate
- - -------------------------------- --------------------------------------
(Signature) (Signature)
Al Heacox, VP - Lab Operators Choate Design & Build Company
- - -------------------------------- --------------------------------------
Cryolife, Inc. (Printed name and title)
- - -------------------------------- Wm. M. Choate
(Printed name and title) President