EXHIBIT 10.8
CONSTRUCTION CONTRACT DATED AS OF MARCH 18, 2002,
AMONG CHEROKEE BANK, N.A. AND X.X. XXXX, INC.
EXHIBIT 10.8
1997 EDITION
AIA DOCUMENT A101-1997
Standard Form of Agreement Between Owner and Contractor
where the basis of payment is a STIPULATED SUM
AGREEMENT made as of the Eighteenth day of March This document has important
in the year Two Thousand Two legal consequences.
(In words, indicate day, month and year) Consultation with an attorney
is encouraged with respect to
its completion or
modification.
BETWEEN the Owner: AIA Document A201-1997,
(Name, address and other information) Cherokee Bank General Conditions of the
0000 Xxxxxxxxxx Xxxxxxx Contract for Construction, is
Xxxxxx, Xxxxxxx 00000 adopted in this document by
Tel. (000) 000-0000 reference. Do not use with
Fax (000) 000-0000 other general conditions
unless this document is
modified.
and the Contractor:
(Name, address and other X.X. Xxxx, Inc. This document has been
information) 000 Xxxxxxxxxx Xxxxx, Xxxxx 000 approved and endorsed by
Xxxxxxxx, Xxxxxxx 00000 The Associated General
Tel. (000) 000-0000 Contractors of America.
Fax (000) 000-0000
The Project is:
(Name and location) South Canton Branch
Cherokee Bank
Canton, Georgia
Job NO. 0109
The Architect is:
(Name, address and other H. Xxxxx Xxxx Architects & Assoc., Inc.
information) 0000 Xxxxxxxxx Xxxxxxxxxx, Xxxxx 0X
Xxxxxxx, Xxxxxxx 00000
xxxxxxxxxxxxx@xxxxxxxxxx.xxx
----------------------------
Tel. (000) 000-0000
Fax (000) 000-0000
The Owner and Contractor agree as follows:
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ARTICLE 1 THE CONTRACT DOCUMENTS
The Contract Documents consist of this Agreement, Conditions of the
Contract (General, Supplementary and other Conditions), Drawings,
Specifications, Addenda issued prior to execution of this Agreement, other
documents listed in this Agreement and Modifications issued after execution
of this Agreement; these form the Contract, and are as fully a part of the
Contract as if attached to this Agreement or repeated herein. The Contract
represents the entire and integrated agreement between the parties hereto
and supersedes prior negotiations, representations or agreements, either
written or oral. An enumeration of the Contract Documents, other than
Modifications, appears in Article 8.
ARTICLE 2 THE WORK OF THIS CONTRACT
The Contractor shall fully execute the Work described in the Contract
Documents, except to the extent specifically indicated in the Contract
Documents to be the responsibility of others.
ARTICLE 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
3.1 The date of commencement of the Work shall be the date of this
Agreement 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.
(Insert the date of commencement if it differs from the date of this
Agreement or, if applicable, state that the date will be fixed in a notice
to proceed.)
THE CONTRACT COMMENCEMENT DATE IS MARCH 25, 2002
(A BUILDING PERMIT WILL BE REQUIRED AT THAT TIME)
If, prior to the commencement of the Work, the Owner requires time to file
mortgages, mechanic's liens and other security interests, the Owner's time
requirement shall be as follows:
3.2 The Contract Time shall be measured from the date of commencement.
3.3 The Contractor shall achieve Substantial Completion of the entire
Work not later than 35 CALENDAR DAYS days from the date of commencement,
or as follows:
(Insert number of calendar days. Alternatively, a calendar date may be used
when coordinated with the date of commencement. Unless stated elsewhere in
the Contract Documents, insert any requirements for earlier Substantial
Completion of certain portions of the Work.)
, subject to adjustments of this Contract Time as provided in the Contract
Documents.
(Insert provisions, if any, for liquidated damages relating to failure to
complete on time or for bonus payments for early completion of the Work.)
The Contractor and the Contractor's Surety, if any, shall be liable
for and shall pay the Owner the sums hereinafter stipulated as
liquidated damages for each calendar day of delay until the work is
substantially complete in the amount of Two Hundred and Fifty Dollars
($250.00).
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ARTICLE 4 CONTRACT SUM
4.1 The Owner shall pay the Contractor the Contract Sum in current funds
for the Contractor's performance of the Contract. The Contract Sum shall be
FOUR HUNDRED THIRTY-EIGHT THOUSAND FIFTY DOLLARS ($438,050.00)
, subject to additions and deductions as provided in the Contract
Documents.
4.2 The Contract Sum is based upon the following alternates, if any,
which are described in the Contract Documents and are hereby accepted by
the Owner: NO ALTERNATES WHERE ACCEPTED. (State the numbers or other
identification of accepted alternates. If decisions on other alternates are
to be made by the Owner subsequent to the execution of this Agreement,
attach a schedule of such other alternates showing the amount for each and
the date when that amount expires.)
4.3 Unit prices, if any, are as follows:
ADD DEDUCT
----------- -------------
1. General Earth Excavation . . . . . . 4.95/c.y. ----4.50/c.y.
2. Excess Earth Excavation. . . . . . . 7.15/c.y. ----6.50/c.y.
3. Off-Site Fill. . . . . . . . . . . . 8.00/c.y. ----5.00/c.y.
4. Trench Earth Excavation. . . . . . . 6.00/c.y. ----5.75/c.y.
5. General Rock Excavation. . . . . . . 66.00/c.y. ----N/A
6. Trench Rock Excavation . . . . . . . 104.50/c.y. ----N/A
ARTICLE 5 PAYMENTS
5.1 PROGRESS PAYMENTS
5.1.1 Based upon Applications for Payment submitted to the Architect by
the Contractor and Certificates for Payment issued by the Architect, the
Owner shall make progress payments on account of the Contract Sum to the
Contractor as provided below and elsewhere in the Contract Documents.
5.1.2 The period covered by each Application for Payment shall be one
calendar month ending on the last day of the month, or as follows:
5.1.3 Provided that an Application for Payment is received by the
Architect not later than the TWENTY-FIFTH (25) day of a month, the Owner
shall make payment to the Contractor not later than the TENTH (10) day of
the Next month. If an Application for Payment is received by the Architect
after the application date fixed above, payment shall be made by the Owner
not later than FIFTEEN (15) days after the Architect receives the
Application for Payment.
5.1.4 Each Application for Payment shall be based on the most recent
schedule of values submitted by the Contractor in accordance with the
Contract Documents. The schedule of values shall allocate the entire
Contract Sum among the various portions of the Work. The schedule of values
shall be prepared in such form and supported by such data to substantiate
its accuracy as the Architect may require. This schedule, unless objected
to by the Architect, shall be used as a basis for reviewing the
Contractor's Applications for Payment.
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5.1.5 Applications for Payment shall indicate the percentage of
completion of each portion of the Work as of the end of the period covered
by the Application for Payment.
5.1.6 Subject to other provisions of the Contract Documents, the amount
of each progress payment shall be computed as follows:
.1 Take that portion of the Contract Sum properly allocable to
completed Work as determined by multiplying the percentage
completion of each portion of the Work by the share of the
Contract Sum allocated to that portion of the Work in the
schedule of values, less retainage of TEN PERCENT (10%). Pending
final determination of cost to the Owner of changes in the Work,
amounts not in dispute shall be included as provided in
Subparagraph 7.3.8 of AIA Document A201-1997;
.2 Add that portion of the Contract Sum properly allocable to
materials and equipment delivered and suitably stored at the site
for subsequent incorporation in the completed construction (or,
if approved in advance by the Owner, suitably stored off the site
at a location agreed upon in writing), less retainage of TEN
PERCENT (10%);
.3 Subtract the aggregate of previous payments made by the Owner;
and
.4 Subtract amounts, if any, for which the Architect has withheld or
nullified a Certificate for Payment as provided in Paragraph 9.5
of AIA Document A201-1997.
5.1.7 The progress payment amount determined in accordance with
Subparagraph
5.1.6 shall be further modified under the following circumstances:
.1 Add, upon Substantial Completion of the Work, a sum sufficient to
increase the total payments to the full amount of the Contract
Sum, less such amounts as the Architect shall determine for
incomplete Work, retainage applicable to such work and unsettled
claims; and (Subparagraph 9.8.5 of AIA Document A201-1997
requires release of applicable retainage upon Substantial
Completion of Work with consent of surety, if any.)
.2 Add, if final completion of the Work is thereafter materially
delayed through no fault of the Contractor, any additional
amounts payable in accordance with Subparagraph 9.10.3 of AIA
Document A201-1997.
5.1.8 Reduction or limitation of retainage, if any, shall be as follows:
(If it is intended, prior to Substantial Completion of the entire Work, to
reduce or limit the retainage resulting from the percentages inserted in
Clauses 5.1.6.1 and 5.1.6.2 above, and this is not explained elsewhere in
the Contract Documents, insert here provisions for such reduction or
limitation.)
RETAINAGE SHALL BE REDUCED 5% ON COMPLETED WORK AT 75% COMPLETION OF
PROJECT.
5.1.9 Except with the Owner's prior approval, the Contractor shall not
make advance payments to suppliers for materials or equipment which have
not been delivered and stored at the site.
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5.2 FINAL PAYMENT
5.2.1 Final payment, constituting the entire unpaid balance of the
Contract Sum, shall be made by the Owner tot he Contractor when:
.1 The Contractor has fully performed the Contract except for the
Contractor's responsibility to correct Work as provided in
Subparagraph 12.2.2 of AIA Document A201-1997, and to satisfy
other requirements, if any, which extend beyond final payment;
and to satisfy other requirements, if any, which extend beyond
final payment; and
.2 a final Certificate for Payment has been issued by the Architect.
5.2.2 The Owner's final payment to the Contractor shall be made no later
than 30 days after the issuance of the Architect's final Certificate for
Payment, or as follows:
ARTICLE 6 TERMINATION OR SUSPENSION
6.1 The Contract may be terminated by the Owner or the Contractor as
provided in Article 14 of AIA Document A201-1997.
6.2 The Work may be suspended by the Owner as provided in Article 14 of
AIA Document A201-1997.
ARTICLE 7 MISCELLANEOUS PROVISIONS
7.1 Where reference is made in this Agreement to a provision of AIA
Document A201-1997 or another Contract Document, the reference refers to
that provision as amended or supplemented by other provisions of the
Contract Documents.
7.2 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.
(Insert rate of interest agreed upon, if any.)
(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 Contractor's principal places of business, the location of the
Project and elsewhere may affect the validity of this provision. Legal
advice should be obtained with respect to deletions or modifications, and
also regarding requirements such as written disclosures or waivers.)
7.3 The Owner's representative is: Xx. Xxxxxx Xxxxxxxx,
(Name, address and other information) President/CEO
Cherokee Bank
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000
Tel. (000) 000-0000
Fax (000) 000-0000
7.4 The Contractor's representative is: Mr. Xxxx Xxxxxx,
(Name, address and other information) Project Manager
X.X. Xxxx, Inc.
000 Xxxxxxxxxx Xxxxx,
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Tel. (000) 000-0000
Fax (000) 000-0000
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and will subject the violator to legal prosecution. 5
7.5 Neither the Owner's nor the Contractor's representative shall be
changed without ten days' written notice to the other party.
7.6 Other provisions:
ARTICLE 8 ENUMERATION OF CONTRACT DOCUMENTS
8.1 The Contract Documents, except for Modifications issued after
execution of this Agreement, are enumerated as follows:
8.1.1 The Agreement is this executed 1997 edition of the Standard Form of
Agreement Between Owner and Contractor, AIA Document A101-1997.
8.1.2 The General Conditions are the 1997 edition of the General
Conditions of the Contract for Construction, AIA Document A201-1997.
8.1.3 The Supplementary and other Conditions of the Contract are those
contained in the Project Manual dated JANUARY 31, 2002, and are as follows:
Document Title Pages
DIVISION A CONDITION OF THE CONTRACT AL-A3
- SUPPLEMENTARY CONDITIONS
DIVISION A CONDITIONS OF THE CONTRACT A4-A7
- INSURANCE REQUIREMENTS
8.1.4 The Specifications are those contained in the Project Manual dated
as in Subparagraph
8.1.3 and are as follows:
(Either list the Specifications here or refer to an exhibit attached to
this Agreement.)
Section Title Pages
SEE EXHIBIT "A"
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8.1.5 The Drawings are as follows, and are dated ______________ unless a
different date is shown below:
(Either list the Drawings here or refer to an exhibit attached to this
Agreement.)
Number Title Date
Cover Cover Sheet 1-31-02
C1-C11 Sitework 1-31-02
P1 Plumbing 1-31-02
E1 Electrical 1-31-02
8.1.6 The Addenda, if any, are as follows:
Number Date Pages
Addendum No. 1 February 14, 2002 Page 1 (Drawings AD#1-1 thru
ADD#1-4
Addendum No. 2 February 14, 2002 Page 1 - No Drawings
Addendum No. 3 February 20, 2002 Page 1 - No Drawings
Addendum No. 4 February 28, 2002 Page 1 (Drawings AD#4-1 thru
AD#4-3)
Addendum No. 5 March 1, 2002 Page 1 (Drawings AD#5-1)
Portions of Addenda relating to bidding requirements are not part of the
Contract Documents unless the bidding requirements are also enumerated in
this Article 8.
8.1.7 Other documents, if any, forming part of the Contract Documents
are as follows:
(List here any additional documents that are intended to form part of the
Contract Documents. AIA Document A201-1997 provides that bidding
requirements such as advertisement or invitation to bid, Instructions to
Bidders, sample forms and the Contractor's bid are not part of the Contract
Documents unless enumerated in this Agreement. They should be listed here
only if intended to be part of the Contract Documents.)
Invitation to Bid - Page i
Instruction to Bidders - Pages ii and iii
Bid Form - Pages iv thru vii
Application and Certificate for payment: AIA Doc. G702 and G703, 1983
Edition.
Notes of Clarifications (Dated March 4, 2002) - (Items 1-6 General and
Items 1-8 Site)
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This Agreement is entered into 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 Architect for use in the administration of the
Contract, and the remainder to the Owner.
-------------------------------------- -------------------------------------
OWNER (Signature) CONTRACTOR (Signature)
-------------------------------------- -------------------------------------
(Printed name and title) (Printed name and title)
Cherokee Bank X.X. Xxxx, Inc.
Canton, Georgia Norcross, Georgia
CAUTION: You should sign an original AIA document or a licensed reproduction.
Originals contain the AIA logo printed in red; licensed reproductions are those
produced in accordance with the Instructions to this document.
WARNING: Unlicensed photocopying violates U.S. copyright laws
and will subject the violator to legal prosecution. 8
EXHIBIT "A"
Section Title Pages
------------------------ ----------------------------- ----------------------
Division B Contract Forms B1 - B6
Division C Drawings & Schedules Cl
Division D Soil Subsurface Investigation D1-D20
Division E Tree Protection Regulations E1-E14
Division F Hydrostudy Fl- F33
Division I General Requirements Sections 1A- 1G
Division 2 Sitework Sections 2A - 2G
Division 3 Concrete Sections 3A
Division 7 Thermal & Moisture Control Sections 7A
Divisions 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, and 15 - Omitted
Division 16 Electrical Sections 16010 - 16500
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VII
(THIS FORM TO BE SUBMITTED IN TRIPLICATE)
BID
SOUTH CANTON BRANCH
SITE DEVELOPMENT
CHEROKEE BANK
CANTON, GEORGIA
DATE OF BID OPENING
CONTRACTOR: X. X. Xxxx, Inc.
-----------------------------------
ADDRESS: 000 Xxxxxxxxxx Xxxxx, Xxxxx 000
-----------------------------------
Xxxxxxxx, XX 00000
-----------------------------------
PHONE: 000-000-0000
-----------------------------------
Xx. Xxxxxx Xxxxxxxx
Cherokee Bank
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000
Gentlemen:
I. BASE BID
---------
The undersigned agrees, having familiarized himself with the local
conditions affecting the cost of the Work, and with the Drawings, Project
Manual, and Addenda as issued by H. Xxxxx Xxxx Architects & Associates,
Inc., Atlanta, Georgia, hereby proposes to enter into a general Contract
with Cherokee Bank, Canton, Georgia, to furnish all labor, materials,
equipment and services required to construct and complete the sitework for
the temporary South Canton Branch Facility in accordance with the above
documents for the stipulated sum of FOUR HUNDRED THIRTY-EIGHT THOUSAND AND
FIFTY DOLLARS ($438,050.00).
II. ALTERNATES
----------
The undersigned agrees to Alternates to the Contract, as selected by the
Owner, for the cost increase or decrease as listed on the attached Schedule
of Alternates.
III. UNIT PRICES
------------
The undersigned agrees that Work added or omitted under the Contract should
be computed at not more than the Unit Prices itemized on the attached Unit
Price Schedule (See Section II-1). These prices shall include all items of
cost, overhead and profit, and constitute complete reimbursement to the
Contractor for said work.
VII
IV. TIME FOR COMPLETING THE WORK AND LIQUIDATED DAMAGES
----------------------------------------------------------
The undersigned agrees, if awarded the Contract, to commence work under the
Contract within _____ days and to achieve substantial completion not later
than _________ consecutive calendar days following the date of the signing
of the contract. Substantial completion is defined as follows: All work
shall be completed by the General Contractor and its Sub-Contractors as
stipulated on the contract documents.
The Agreement will include a stipulation that liquidated damages will be
established in the amount of Two Hundred Fifty Dollars ($250.00) per
calendar day for each calendar day that the work is not completed within
the contracted construction time.
V. ADDENDA
-------
The undersigned acknowledges receipt of Addenda numbered: 1-5
VI. BID TIME LIMITATIONS
----------------------
It is understood that this proposal is subject to acceptance and may not be
withdrawn for a period of thirty (30) days from Bid Date.
VII. CONTRACT EXECUTION
-------------------
Upon receipt of notification of acceptance of this proposal, within thirty
(30) days after the date established for the opening of Bids, the
undersigned agrees to execute, within seven (7) days, the specified
Contract for the above stated work, accompanied with Performance and
Payment Bonds, Certificates of Insurance, List of Subcontractors and
Material Suppliers, and other submittals required in the Bidding Documents,
all in accordance therewith. It is further understood that failure to
produce the above Documents within the stipulated period will result in
forfeiture of the Bid Bond to the Owner as liquidated damages which the
Owner will sustain as a result of the failure to abide by the terms of this
Agreement.
VIII. BONDS
-----
A Bid Bond, in the form of AIA Document A3 10, made payable to the Owner,
and in the amount of five percent (5%) of the Base Bid Sum is attached to
this Bid. The undersigned agrees, if awarded the Contract, to deliver to
the Owner at the signing of the Contract, a Performance Bond and a Labor
and Material Payment Bond in the form of AIA Document A311 for the full
amount of the Contract.
VII
BID FORM ATTACHMENT
-------------------
SOUTH CANTON BRANCH
SITE DEVELOPMENT
CHEROKEE BANK
CANTON, GEORGIA
COST ITEMIZATION
----------------
UNIT PRICE SCHEDULE
-------------------
(See Section 1G)
ADD DEDUCT
------------- ------------
1. General Earth Excavation. . . . $ 4.95 /c.y. $4.50 /c.y.
------------- ------------
2. Excess Earth Excavation . . . . $ 7.15 /c.y. $6.50 /c.y.
------------- ------------
3. Off-Site Fill . . . . . . . . . $ 8.00 /c.y. $5.00 /c.y.
------------- ------------
4. Trench Earth Excavation . . . . $ 6.00 /c.y. $5.75 /c.y.
------------- ------------
5. General Rock Excavation . . . . $ 66.00 /c.y. $ N/A /c.y.
------------- ------------
6. Trench Rock Excavation. . . . . $104.50 /c.y. $ N/A /c.y.
------------- ------------
VII
IX. BIDDER IDENTIFICATION
----------------------
The legal name of the undersigned Bidder shall be entered on the first page
of this Bid Form. The undersigned Bidder is a (indicate one):
( ) Sole Proprietor
( ) Partnership
( x ) Corporation in the State of GEORGIA
-------
( ) Other Legal Entity (indicate)
Bid by a corporation shall have corporate seal affixed. Upon request,
evidence will be submitted of authority of persons to bind Bidder to a
Contract.
Respectfully
Contractor X.X. Xxxx, Inc.
----------------------------------------
By
----------------------------------------
Title Vice President
-------------------------------------
Attachments:
Schedule of Alternatives,
Unit Prices and Bid Bond.
Cherokee Bank
Old Hwy 5
Canton, Georgia
3/4/2002
NOTES OF CLARIFICATION
----------------------
GENERAL
-------
1. This bid is valid for a period of 30 days from the date of submission. X.X.
Xxxx reserves the right to modify costs and/or schedule after 30 days.
2. X.X. Xxxx has based our proposal on 35 calendar days (5 week) construction
schedule to turnover. If the project extends beyond the original schedule
due to unforeseen delays (vendors, architectural, civil, permitting, owner
materials); and/or unforeseen conditions (poor weather conditions, rock, or
poor soil conditions), we will ask to be reimbursed for General Conditions
and Overhead related to those delays as agreed by Owner and General
Contractor.
3. X.X. Xxxx will relocate utilities as shown on the drawings. We have not
included relocation of utilities not shown on the drawings.
4. We have assumed all temporary utilities (i.e. water, electric and phone)
are available at site for temporary use by General Contractor within the
first week of project start.
5. We have included costs for a Performance & Payment Bond. If one is not
required, deduct 3,000.00.
6. We have included the following permit, tap, and meter fees as listed below:
Building Permit $1,500.00
Sewer Tap $3,500.00
Water Meter $2,940.00
SITE
----
1. We are assuming that all property pins, benchmarks, and grades as shown
have been placed by a licensed engineer/surveyor and are accurate as per
the drawings.
2. Topsoil is to be re-spread with on-site material.
3. X.X. Xxxx has not included any costs for correcting weak subsoil
conditions, relocation of utilities, rock removal, de-watering, de-mucking,
contaminated soils, hazardous material testing and/or abatement,
underground obstructions or stabilization other than specifically called
for in the plans.
4. Based on the provided cross-sections, the modular retaining wall in the
detention pond area will require select free draining backfill to an
elevation of 1 foot above the high water level. We have estimated
approximately 400 tons of stone will be required for this area. If Contour,
Inc. is required to provide this additional stone; our calculations
estimate an additional charge of ($6,000.00) for the
stone. Any amount over the estimated 400 tons of stone will be calculated
and charged at a unit rate of $15.00 per ton.
5. Our Base Bid excludes cost of As-built Certification Survey. This may be
required prior to issuance of C.O.
6. Concrete retaining wall has been figured to be backfilled with on-site
structural fill. Stone backfill has not been included.
7. We assume the existing water line at the street to be a 8" line.
8. The site gas line shall be paid for by owner and coordinated by General
Contractor.
