APPENDIX A TO COMPREHENSIVE AGREEMENT UOSA CONTRACT S/1 BUILDING S/1 RENOVATIONS FORM OF STAGE 2: DESIGN-BUILD WORK AMENDMENT

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1 APPENDIX A TO COMPREHENSIVE AGREEMENT UOSA CONTRACT S/1 BUILDING S/1 RENOVATIONS FORM OF STAGE 2: DESIGN-BUILD WORK AMENDMENT This Stage 2: Design-Build Work Amendment ( DB Work Amendment) is an Amendment to the Comprehensive Agreement ( Agreement ) between the Upper Occoquan Sewage Authority, also known as Upper Occoquan Service Authority ( Owner ) and ( Contractor ) dated. The Agreement and all Contract Documents thereto shall remain in full force and effect except as amended specifically by this DB Work Amendment. The Contractor shall perform the engineering and construction services described in this DB Work Amendment including Exhibits 1 through 5, attached hereto, in addition to other services and requirements for the Work and in addition to other obligations of the Contractor set forth in the Contract Documents. Contractor agrees to furnish at its own cost and expense all the engineering, design, documents, equipment, Equipment, labor, services, and appurtenances under this DB Work Amendment required by the Contract Documents to achieve Final Completion of the DB Work (including but not limited to both the Design Services and Construction Work) for the compensation stated herein. For the purposes of this DB Work Amendment and all Contract Documents associated herewith, the Contractor shall be responsible as both the Constructor and Design Professional, and only the term Contractor is used. ARTICLE 1 SCOPE OF SERVICES The SCOPE OF SERVICES shall be amended to include the following: K. Final Design: Upon written Notice to Proceed with Final Design from the Owner, the Contractor shall: 1. Prepare the Final Drawings and Final Specifications for acceptance by the Owner, indicating the scope, extent, and character of the Construction Work to be performed and furnished by the Contractor. Final Specifications shall conform to the 16-division format of the Construction Specifications Institute. Unless otherwise approved in writing by the Owner, the Final Drawings and the Final Specifications shall conform UOSA CONTRACT S/1 1 JANUARY 2011

2 to the GMP Drawings set forth in Exhibit 1 and the GMP Specifications set forth in Exhibit The Contractor shall make no change to the GMP Drawings, the GMP Specifications, the Final Drawings or the Final Specifications without written approval by the Owner. a. The Contractor may propose changes to the GMP Drawings, the GMP Specifications, the Final Drawings, or the Final Specifications for consideration by the Owner or the Bridging Consultant. b. If requested by the Owner, the Contractor shall provide detailed estimates of the impact of any such design change on the Cost of the DB Work, the Contract Times and performance of the Project and the Owner may condition its approval on an adjustment in the Contract Price. c. If changes to the GMP Drawings, GMP Specifications or the DB Work are required due to permitting or other governmental review and approvals, changes in applicable laws or regulations after the DB Work Amendment is signed by the parties, or other circumstances or occurrences identified in the Contract Documents, the Contractor shall submit such proposed change to the Owner and the Bridging Consultant, and the Owner shall either authorize such change as proposed or request the Contractor to propose an alternate change for the Owner s review. The additional costs and time, if any, incurred by the Contractor for making such changes shall be subject to the Changes, Notice of Claim, and claims submission procedures set forth in the DB General Conditions. d. The Owner at any time may require the Contractor to change the GMP Drawings, GMP Specifications, Final Drawings or Final Specifications. Any claim by the Contractor for additional compensation or an extension of time arising from or related to such change shall be governed by the provisions of the DB General Conditions regarding changes, delays, and disputes and claims. Provided further, if the change is made necessary by error or omission on the part of the Contractor, or by failure of the Contractor to comply with applicable law or regulation in effect at the time this DB Work Amendment is signed, all cost and time associated with such change shall be borne by the Contractor. A change in law or regulation adopted before the applicable Amendment is signed but not scheduled to go into effect until after the Amendment is signed shall be deemed for purposes of this provision to have been in effect on the date the Amendment is signed. 3. The Owner either will accept the Final Drawings and Final Specifications, or provide to the Contractor reasons for denying acceptance, within 30 days following receipt of the proposed final documents. Any inconsistency with or nonconformity to the GMP Drawings or the GMP Specifications shall be clearly shown in any such submittal to the Owner. Acceptance by the Owner of the Final Drawings and Final Specifications as prepared by the Contractor shall not create any warranty by the Owner of the UOSA CONTRACT S/1 2 JANUARY 2011

3 adequacy thereof, and shall not relieve the Contractor of its responsibility for errors or omissions in the documents or for failure to comply strictly with the requirements of the Contract Documents. 4. Provide technical criteria, written descriptions, and design data for Owner s use in filing applications for permits from or approvals of governmental authorities having jurisdiction to review or approve the final design of the Project; assist Owner in consultations with such authorities; and revise the Drawings and Specifications in response to directives from such authorities. 5. The Contractor and its Design Professional shall periodically meet with the Owner and the Bridging Consultant to review the progress of the preparation of the Final Drawings and the Final Specifications and to obtain the input of the Owner and Bridging Consultant and to obtain the written acceptance of the Owner of the Final Drawings and Final Specifications before starting construction of the DB Work or any portion thereof. Provided, however, the Contractor may request from the Owner that the Design Stage and the Construction Stage be permitted to overlap such that portions of the Final Drawings and Final Specifications may be completed and approved by the Owner and construction initiated for such portions of the Project before the Final Drawings and Final Specifications for all the Work are completed. The Owner shall be under no obligation to consent to such overlapping of Design and Construction requirements. Any approval given by the Owner to allow such overlap shall create no warranty or representation by the Owner that local governmental authorities will permit such an approach, nor shall such consent or denial of such consent be any basis for an extension of any of the Contract Times. 6. Perform or provide the additional Final Design tasks or deliverables as may be directed by the Owner. L. Construction and Testing: Upon the Owner s issuance of Notice to Proceed with Construction for all or a portion of the Project, the Contractor shall perform all Work necessary to achieve Substantial Completion, and thereafter Final Completion, of the Project in strict compliance with the Final Design, the Final Specifications, and all other Contract Documents. ARTICLE 2 COMPENSATION H. ARTICLE 2 shall be amended by adding this Article 2.H: Compensation for the DB Work under this Amendment shall be on an open book basis for reimbursable costs, plus a DB Fee, the total of such cost and DB Fee not to exceed the Guaranteed Maximum Price ( GMP ) of [ insert GMP in dollars ]. Reimbursable costs are as defined in the DB General Conditions, and for purposes of the GMP are [insert reimbursable cost total included in GMP]. The DB Fee included in the GMP is a fixed fee of [insert initial Fee]. In the event of a Change Order which increases or decreases the reimbursable costs total, the GMP shall be adjusted to reflect such increase or decrease in reimbursable costs. For each UOSA CONTRACT S/1 3 JANUARY 2011

4 cumulative increase or decrease in the reimbursable costs total in excess of fifteen thousand ($15,000.00), the DB Fee shall be increased or decreased as applicable by [insert amount]. The adjusted GMP thereafter shall be the total of the adjusted reimbursable costs and the adjusted DB Fee. I. Compensation for the DB Work provided under this Amendment shall be provided under a Cost-Reimbursable method with the not-to-exceed compensation levels set forth below in Table 2.0. Table 2.0 for the Basic Services Not-to-Exceed Amounts for DB Work Stage 2 Task 1.1 DB Work 1.2 DB Fixed Fee 1.3 Additional Services 1.4 Contingency 1.5 Guaranteed Maximum Price (GMP) Compensation Limit The Cost of the DB Work shall be determined as provided in the DB General Conditions, including Article 107. J. If the amount payable by the Owner for the DB Work through the Final Payment, exclusive of any Liquidated Damages, is less than the Guaranteed Maximum Price, the Owner shall pay forty percent (40%) of the difference between the Guaranteed Maximum Price and such Final Payment total amount payable ( Incentive Payment ) to the Contractor not later than forty-five (45) days after expiration of the DB Work Warranty Period. Provided, however, that in no event shall such Incentive Payment exceed five percent (5%) of the Guaranteed Maximum Price. Provided further if any of the Contract Times are not satisfied by the Contractor and such delay is not excused under the Contract Documents, the Incentive Payment shall be reduced by 3% per month of such unexcused delay, allocated equally on a daily basis. Such reduction in the Incentive Payment shall be in addition to any Liquidated Damages payable by the Contractor under this Agreement. K. The contingency amount included in the Guaranteed Maximum Price shall be available for use by the Project and only for costs incurred in performing the DB Work that satisfy all five of the following conditions: (1) are not included in a specific line item under the Guaranteed Maximum DB Contract Price, (2) are of a type such that they would have been properly reimbursable as Cost of the DB Work if the work had been included in a specific line item under the Guaranteed Maximum Price, (3) are not the basis for a Change Order, (4) are not related to the correction of errors or defects in the DB Work, and (5) are not related to costs incurred by Subcontractors, suppliers or other third parties under the control of the Contractor with whom the Contractor has a lump sum agreement. The CONTRACTOR shall provide the Owner written notice of its request to use contingency funds, the reason for doing so, and the amount to be used. The owner shall evaluate the UOSA CONTRACT S/1 4 JANUARY 2011

5 CONTRACTOR s request, and shall approve or reject it, in the Owners discretion, based on whether or not the proposed use of contingency funds accords with this paragraph. CONTRACTOR shall not spend any contingency funds without prior written approval of the Owner. The Owner shall have the option to use unspent Construction Contingency to add scope to the Project if it deems necessary or prudent at the Owner s sole discretion. Any unspent Construction Contingency shall be a part of the Shared Construction Savings as hereinafter addressed. ARTICLE 3 SCHEDULE ARTICLE 3 of the Agreement is amended to include the following: B. The Contractor shall achieve Substantial Completion of the DB Work within [ insert days in words ] ([ insert days in numbers ]) Days following the date of Notice to Proceed under the DB Work Amendment. The Contractor shall achieve Final Completion within [ insert days ] Days following the date of Substantial Completion. ARTICLE 4 EXTENT OF AGREEMENT AND CONTRACT DOCUMENTS F. The Contract Documents shall also include: 1. The amended Articles set forth in this DB Work Amendment. 2. Exhibit 1 GMP Drawings. 3. Exhibit 2 GMP Specifications. 4. Exhibit 3 UOSA Division 1 Specifications. 5. Exhibit 4 Performance Bond. 6. Exhibit 5 Payment Bond. ARTICLE 7 CONTRACTOR LIABILITY AND PERFORMANCE SECURITY ARTICLE 7 of the Agreement is amended to include the following Bond requirements: A. Insurance and Bonds 3. At the time of execution of this DB Work Amendment and as a condition precedent to it becoming effective, the Contractor shall file with the Owner a Performance bond in the form attached hereto as Exhibit 4, in the full amount of the Guaranteed Maximum Price, as security for the faithful performance of this DB Work Amendment in strict conformity with the requirements of the Contract Documents, and to cover all guarantees against defective workmanship or materials, or both, including but not limited to the Warranty Period. The date of the Performance Bond shall be the date the Contractor signs the DB Work Amendment, or the Surety shall UOSA CONTRACT S/1 5 JANUARY 2011

6 otherwise certify that the Performance Bond executed prior to the date the Contractor signs the DB Work Amendment is effective as of the date the Contractor signs the DB Work Amendment. If the Contractor is a partnership or joint venture, all partners or venturers shall execute the bond in a personal and not representative capacity, in addition to execution of the bond by the Contractor. 4. At the time of execution of this DB Work Amendment and as a condition precedent to it becoming effective, the Contractor shall file with the Owner a Payment bond in the form attached hereto as Exhibit 5, in the full amount of the Guaranteed Maximum Price, as security for the payment of all persons supplying labor, services, or materials to the Contractor or to or for any entity having a contract with the Contractor, including but not limited to all amounts due for materials, lubricants, oil, gasoline, repairs on machinery, equipment, and tools consumed or used in connection with the construction of the Work or incorporated into the Work, and all insurance premiums on the Work, and for all labor performed in the Work, whether by Subcontractor or otherwise, for the construction of the Work. Such bond shall remain in effect for a period of one (1) year after the date of Final Completion and acceptance of all the Work as established by the Owner. The date of the Payment Bond shall be the date the Contractor signs the Contract, or the Surety shall otherwise certify that the Payment Bond executed prior to the date the Contractor signs the DB Work Amendment is effective as of the date the Contractor signs the DB Work Amendment. If the Contractor is a partnership or joint venture, all partners or venturers shall execute the Bond in a personal and not representative capacity, in addition to execution of the Bond by the Contractor. C. Surety Qualifications 1. For all bonds provided in compliance with any requirements of the Contract Documents, the Surety shall have a sound financial standing and record of service satisfactory to the Owner, shall be authorized to transact business in the Commonwealth of Virginia, and must appear on the Treasury Department s most current approved list (Circular 570 as amended). All bonds signed by an agent must be accompanied by a certified copy of the authority to act for the Surety up to the amount of the bond. This certified copy of authority to act on behalf of the Surety shall be provided at the time of the signing of the bond(s) and be delivered to the Owner with the bond(s). The following Article is added to the existing Articles in the Agreement: ARTICLE 11 - CONTRACT TIME, AUTHORIZED DEDUCTIONS A. Substantial Completion and Final Completion for this DB Work Amendment shall be as defined in the Design-Build General Conditions. B. The Contractor hereby consents to the deduction of, and authorizes the Owner to deduct from any amount otherwise payable to the Contractor, any charge, cost or fee identified by the Contract Documents as payable by the Contractor to the Owner for any reason. UOSA CONTRACT S/1 6 JANUARY 2011

7 C. In the event the Contractor fails to achieve Substantial Completion of the DB Work within the Contract Time for the DB Work Amendment, as may be adjusted, the Owner shall commence the assessment of, and shall deduct from amounts otherwise payable to the Contractor, Liquidated Damages at a rate of Five Hundred Sixty Dollars ($560.00) per day on the date Substantial Completion was required and shall continue to assess and deduct from amounts otherwise payable to the Contractor such Liquidated Damages until Substantial Completion has been achieved. It is understood and agreed that the Liquidated Damages amount shall not be affected by the Owner s use or occupancy of, or by the achievement of Substantial Completion of a designated portion of, the Work, but shall be applicable to Substantial Completion of the Work as a whole. D. In the event the Contractor fails to achieve Final Completion of the DB Work within the time required by the DB Work Amendment, as may be adjusted, the Owner shall commence the assessment of, and shall deduct from amounts otherwise payable to the Contractor, Liquidated Damages at a rate of One Hundred Forty Dollars ($140.00) per day on the date Final Completion was required and shall continue to assess and deduct from amounts otherwise payable to the Contractor such Liquidated Damages until Final Completion has been achieved. It is understood and agreed that the Liquidated Damages amount shall not be affected by the Owner s use or occupancy of, or by the achievement of Final Completion of a designated portion of, the Work, but shall be applicable to Final Completion of the Work as a whole. E. In the event the amount assessed for any Liquidated Damages exceeds the amount otherwise payable to the Contractor, the Contractor shall pay to the Owner such Liquidated Damages within ten (10) days following issuance by the Owner of the amount due. F. Liquidated Damages shall be assessed and deducted on a monthly basis for each day of the preceding month beyond the date the applicable Liquidated Damages became assessable. The Owner shall deduct from any funds otherwise due the Contractor Liquidated Damages which have been assessed and the Contractor hereby waives any and all objections to the Owner s right to make such deductions including, but not limited to, any objection that the amount of Liquidated Damages is void as a penalty or is not reasonably related to actual damages. Without limitation of the foregoing, the Contractor hereby agrees that any deduction of Liquidated Damages as authorized herein shall not constitute improper or wrongful nonpayment of the Contractor and the Contractor conclusively waives any claim or cause of action premised in whole or in part on any such deduction of Liquidated Damages. G. In the event more than one ground for assessment of Liquidated Damages as set forth herein exists concurrently, such grounds shall be deemed to be independent and all applicable Liquidated Damages shall be assessed and deducted cumulatively. H. Notwithstanding the foregoing, the Contractor s right to seek extension of the Contract Time as provided in the Contract Documents and to recovery of any Liquidated Damages to which any such extension of Contract Time may entitle it is reserved. In the event that, UOSA CONTRACT S/1 7 JANUARY 2011

8 subsequent to any deduction of Liquidated Damages as authorized herein, a time extension is granted or any determination is made which affects in whole or in part the amount of Liquidated Damages deducted, the Contractor acknowledges and agrees that its sole remedy for the deduction and withholding of any Liquidated Damages shall be payment by the Owner of the principal amount of Liquidated Damages so determined to be payable to the Contractor plus interest as provided in the Contract Documents. MISCELLANEOUS The Contractor hereby affirms and restates all of the representations, affirmations and warranties given in connection with the Agreement, as of the Agreement Date, including without limitation those set forth in Article 123 of the DB General Conditions. The effective date for Applicable Law is hereby revised and updated to be the date set forth below for the Contractor s signature, such that any changes in Applicable Law that has occurred between the Agreement Date and such date set forth below shall not entitle the Contractor to any adjustment in the Guaranteed Maximum Price or the Contract Times. WITNESS the following signatures and seals: UPPER OCCOQUAN SERVICE AUTHORITY BY: Charles P. Boepple, Executive Director Date: CONTRACTOR: BY: Name Printed: Title: Date: UOSA CONTRACT S/1 8 JANUARY 2011

9 Exhibit 1 to Design-Build Work Amendment GMP DRAWINGS [insert GMP Drawings from Stage 1] UOSA CONTRACT S/1 9 JANUARY 2011

10 Exhibit 2 to Design-Build Work Amendment GMP SPECIFICATIONS [insert GMP Specifications from Stage 1] UOSA CONTRACT S/1 10 JANUARY 2011

11 Exhibit 3 to Design-Build Work Amendment DIVISION 1 REQUIREMENTS [insert UOSA Division 1 after revisions for design-build] UOSA CONTRACT S/1 11 JANUARY 2011

12 Exhibit 4 to Design-Build Work Amendment PERFORMANCE BOND [insert UOSA s Performance Bond Form] UOSA CONTRACT S/1 12 JANUARY 2011

13 Exhibit 5 to Design-Build Work Amendment PAYMENT BOND [insert UOSA s Payment Bond Form] UOSA CONTRACT S/1 13 JANUARY 2011