Exhibit 10.20.5
THE AMERICAN INSTITUTE OF ARCHITECTS
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AIA DOCUMENT A117-1987
Abbreviated Form of Agreement Between
Owner and Contractor
for
CONSTRUCTION PROJECTS OF LIMITED SCOPE
where the basis of payment is the
COST OF THE WORK PLUS A FEE
with or without a Guaranteed Maximum Price
1987 EDITION
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS
ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION.
This document includes abbreviated General Conditions and should not be used
with other general conditions. It has been approved and endorsed by The
Associated General Contractors of America.
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AGREEMENT
made as of the 23rd day of April in the year of Two Thousand and One.
BETWEEN the Owner: ▇▇▇▇▇▇▇ Properties, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
and the Contractor: ▇▇▇▇▇▇▇ Properties Construction, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
The Project is: Northridge Pointe Headquarters Building
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
The Architect is: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
The Owner and Contractor agree as set forth below.
ARTICLE 1
THE WORK OF THIS CONTRACT
1.1 The Contractor shall execute the entire Work described in the
Contract Documents, except to the extent specifically indicated in the Contract
Documents to be the responsibility of others, or as follows:
All site clearing, grading, utilities, paving, curb and gutters, landscaping,
etc. associated with the construction of a 39,907 gross square foot office
building. The property consists of 4.101 acres of land located on Northridge
Parkway in Land ▇▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
Project is to be constructed in accordance with the Plans & Specifications to be
prepared by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. entitled "▇▇▇▇▇▇▇ Properties, Inc.
Corporate Headquarters, ▇▇▇▇▇▇ County", last revised January 31, 2001.
Any adverse soil conditions that may be encountered are included in this Cost
Plus Contract; any costs associated with those conditions shall be borne by the
Owner.
ARTICLE 2
RELATIONSHIP OF THE PARTIES
2.1 The Contractor accepts the relationship of trust and confidence
established by this Agreement and covenants with the Owner to cooperate with the
Architect and utilize the Contractor's best skill and judgment in furthering the
interests of the Owner; to furnish efficient business administration and
supervision; to make best efforts to furnish at all times an adequate supply of
workers and materials; and to perform the Work in the best way and most
expeditious and economical manner consistent with the interests of the Owner.
The Owner agrees to exercise best efforts to enable the Contractor to perform
the Work in the best way and most expeditious manner by furnishing and approving
in a timely way information required by the Contractor and making payments to
the Contractor in accordance with the requirements of the Contract Documents.
ARTICLE 3
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
3.1 The date of commencement is the date from which the Contract Time of
Paragraph 3.2 is measured, and shall be the date of this Agreement, as first
written above, unless a different date is stated below or provision is made for
the date to be fixed in a notice to proceed issued by the Owner.
The Date of Commencement shall be the first day after both parties have signed
the original Agreement or a later date agreed upon by both parties. Contractor
must file a Notice of Commencement per Georgia Law. A recorded copy will be
maintained in the Contractor's file and on the jobsite.
3.2 The Contractor shall achieve Substantial Completion of the entire
Work not later than 18 months after the Date of Commencement, subject to
adjustment of this Contract Time as provided in the Contract Documents.
ARTICLE 4
CONTRACT SUM
4.1 The Owner shall pay the Contractor in current funds for the
Contractor's performance of the Contract the Contract Sum consisting of the Cost
of the Work as defined in Article 5 and the Contractor's Fee determined as
follows:
The Contractor shall be paid monthly on a cost basis, payable on the 10th of
each month unless the 10th falls on the weekend, then payment shall be due on
the next business day. The Contractor shall submit an invoice to the Owner no
later than the 1st of the following month for all expenses incurred in the
preceding month. This invoice shall include a detailed listing of all expenses,
which shall include invoice numbers, dates, supplier or subcontractor
identification and amount due.
4.2 GUARANTEED MAXIMUM PRICE (IF APPLICABLE)
4.2.1 The sum of the Cost of the Work and the Contractor's Fee is
guaranteed by the Contractor not to exceed N/A Dollars ($ N/A ), subject to
additions and deductions by Change Order as provided in the Contract
Documents. Such maximum sum is referred to in the Contract Documents as the
Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price
to be exceeded shall be paid by the Contractor without reimbursement by the
Owner.
N/A
4.2.2 The Guaranteed Maximum Price is based upon the following alternates,
if any, which are described in the Contract Documents and are hereby accepted by
the Owner:
N/A
4.2.3 The amounts agreed to for unit prices, if any, are:
N/A
ARTICLE 5
COSTS TO BE REIMBURSED
5.1 The term "Cost of the Work" shall mean costs necessarily incurred by
the Contractor in the proper performance of the Work. Such costs shall be at
rates not higher than the standard paid at the place of the Project except with
prior consent of the Owner. The Cost of the Work shall include only the items
set forth in this Article 5.
5.1.1 Wages of construction workers directly employed by the Contractor to
perform the construction of the Work, including welfare, unemployment
compensation, social security and other benefits.
5.1.2 Costs, including transportation, of materials and equipment
incorporated or to be incorporated in the completed construction. All discounts
for cash for prompt payment shall accrue to the Contractor.
5.1.3 Payments made by the Contractor to Subcontractors in accordance with
the requirements of the subcontracts.
5.1.4 Costs of all materials, temporary facilities, equipment and hand
tools not customarily owned by the construction workers, which are provided by
the Contractor at the site and fully consumed in the performance of the Work.
5.1.5 Reasonable rental costs for necessary temporary facilities,
machinery, equipment, and hand tools used at the site of the Work, whether
rented from the Contractor or others. Rates and quantities of equipment rented
shall be subject to the Contractor's prior approval.
5.1.6 That portion directly attributable to this Contract of premiums for
insurance and bonds.
5.1.7 Losses and expenses not compensated by insurance or otherwise,
sustained by the Contractor in connection with the Work, provided they have
resulted from causes other than the fault or neglect of the Contractor.
5.1.8 Costs of removal of debris from the site.
5.1.9 Costs incurred in taking action to prevent threatened damage, injury
or loss in case of an emergency affecting the safety of persons and property.
5.1.10 Other costs incurred in the performance of the Work if and to the
extent approved in advance in writing by the Owner.
ARTICLE 6
COSTS NOT TO BE REIMBURSED
6.1 The Cost of Work shall not include:
6.1.1 Salaries and other compensation of the Contractor's personnel
stationed at the Contractor's principal office or offices other than the site
office, with the exception of the Vice President of Estimating.
6.1.2 Expenses of the Contractor's principal office and offices other than
the site office.
6.1.3 Overhead and general expenses, except as may be expressly included in
Article 5.
6.1.4 The Contractor's capital expenses, including interest on the
Contractor's capital employed for the Work.
6.1.5 Costs due to the fault or negligence of the Contractor,
Subcontractors, anyone directly or indirectly employed by any of them, or for
whose acts any of them may be liable, including but not limited to, costs for
correction of damaged, defective or nonconforming Work, disposal and replacement
of materials and equipment incorrectly ordered or supplied, and making good
damage to property not forming part of the Work.
6.1.6 Any cost not specifically and expressly described in Article 5.
6.1.7 Costs which would cause the Guaranteed Maximum Price, if any, to be
exceeded.
ARTICLE 7
DISCOUNTS, REBATES AND REFUNDS
7.1 Cash discounts obtained on payments made by the Contractor shall
accrue to the Owner if (1) before making the payment, the Contractor included
them in an Application for Payment and received payment therefor from the Owner,
or (2) the Owner has deposited funds with the Contractor with which to make
payments; otherwise, cash discounts shall accrue to the Contractor. Trade
discounts, rebates, refunds and amounts received from sales of surplus
materials, equipment shall accrue to the Owner, and the Contractor shall make
provisions so that they can be secured.
7.2 Amounts that accrue to the Owner in accordance with the provisions of
Paragraph 7.1 shall be credited to the Owner as a deduction from the Cost of the
Work.
ARTICLE 8
ACCOUNTING RECORDS
8.1 The Contractor shall keep full and detailed accounts and exercise
such controls as may be necessary for proper financial management under this
Contract; the accounting and control systems shall be satisfactory to the Owner.
The Owner and the Owner's accountants shall be afforded access to Contractor's
records relating to this Contract. The Contractor shall preserve these records
for a period of seven years after final payment, or for such longer period as
may be required by law.
ARTICLE 9
PROGRESS PAYMENTS
9.1 Based upon Applications for Payment submitted by the Contractor and
Certificates for Payment issued, the Owner shall make progress payments on
account of the Contract Sum to the Contractor as provided in the Contract
Documents. The period covered by each Application for Payment shall be one
calendar month ending on the last day of the month.
9.2 Payments due and unpaid under the Contract shall bear interest from
the date payment is due at the rate stated below, or in the absence thereof, at
the legal rate prevailing from time to time at the place where the Project is
located.
The prevailing prime rate of First Union National Bank, plus 1%.
ARTICLE 10
FINAL PAYMENT
10.1 Final payment, constituting the entire unpaid balance of the Contract
Sum, shall be paid by the Owner to the Contractor when (1) the Contract has been
fully performed by the Contractor except for the Contractor's responsibility to
correct nonconforming Work and to satisfy other requirements, if any, which
necessarily survive final payment, and (2) a final Certificate for Payment has
been issued.
ARTICLE 11
ENUMERATION OF CONTRACT DOCUMENTS
11.1 The Contract Documents are listed in Article 11 and, except for
Modifications issued after the execution of this Agreement, are enumerated as
follows:
N/A
11.1.1 The Agreement is this executed Abbreviated Form of Agreement between
Owner and Contractor, AIA Document A117, 1987 Edition.
11.1.2 The Supplementary and other Conditions of the Contract are those
contained in the Project Manual dated N/A , and are as follows:
Document N/A Title Pages
11.1.3 The Specifications are those contained in the Project Manual dated as
in Subparagraph 11.1.2, and are as follows: N/A
Number Title Pages
11.1.4 The drawings are listed on: Exhibit "A" List of Drawings shall
be provided upon completion and acceptance of approved Plans &
Specifications.
11.1.5 The Addenda, if any, are as follows:
N/A
Portions of Addenda relating to bidding requirements are not part of the
Contract Documents unless the bidding requirements are also enumerated in this
Article 11.
11.1.6 Other Documents, if any, forming part of the Contract Documents are as
follows:
Exhibit "B" Application for Payment to follow. (To be provided upon
commencement of construction.)
This Agreement is entered as of the day and year first written above and is
executed in at least three original copies, of which one is to be delivered to
the Contractor, one to the Owner's construction inspector for use in the
administration of the Contract, and the remainder to the Owner.
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▇▇▇▇▇▇▇ PROPERTIES, INC. ▇▇▇▇▇▇▇ PROPERTIES CONSTRUCTION, INC.
a Georgia limited partnership
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President