DESIGN/BUILD AGREEMENT EXHIBIT 10.1

 

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                             DESIGN/BUILD AGREEMENT                 EXHIBIT 10.1

                                     BETWEEN

                            T. MARZETTI COMPANY, LLC

                                       AND

                               SHAMBAUGH & SON, LP

 

THIS AGREEMENT is made and entered into as of the 6th day of December 2004, by

and between T. Marzetti Company, LLC, a Kentucky limited liability company

(hereinafter referred to as "the Owner"), having its principal office at 1105

Schrock Road, P.O. Box 29163, Columbus, Ohio 43229 and Shambaugh & Son,

LP,(hereinafter referred to as "Design/Builder"), having its principal office at

7614 Opportunity Drive, P.O. Box 1287, Fort Wayne, Indiana 46801-1287.

 

WHEREAS, the Owner intends to construct a Production Facility in Horse Cave,

Kentucky, for salad dressings and sauces, together with ancillary spaces and

equipment purchase and installation as described in the Owner's Criteria,

hereinafter referred to as the "Project"; and

 

WHEREAS, the Owner desires the service of a Design/Builder to design, organize,

coordinate, direct and construct the Project, and to assume all risks and

responsibilities of producing the Project within a Guaranteed Maximum Price, as

hereinafter defined; and

 

WHEREAS, Design/Builder represents itself as having the skill, experience,

expertise and resources necessary to provide the foregoing services; and

 

WHEREAS, Design/Builder has previously undertaken the performance of certain

services required in connection with the Project and included within the scope

of this Agreement;

 

NOW THEREFORE, for and in consideration of the mutual covenants and agreements

set forth herein, the Owner and Design/Builder agree as follows:

 

                                   ARTICLE 1

 

                               GENERAL PROVISIONS

 

The Design/Builder accepts the relationship of trust and confidence established

between it and the Owner by this Agreement. It covenants with the Owner to

furnish skill and judgment consistent with industry standards for projects of

similar scope and complexity, and to cooperate in furthering the interests of

the Owner. It agrees to furnish efficient business administration and

superintendence and to use reasonable efforts to complete the Project in

conformance with the terms of this Agreement and in the most expeditious and

economical manner consistent with the interest of the Owner.

 

1.1 THE CONSTRUCTION TEAM. The Design/Builder which is also the

Architect/Engineer, and the Owner, called the "Construction Team", shall work in

accordance with this Agreement to complete design services commenced under the

Part 1 Agreement, through Final Completion. The Design/Builder shall provide

leadership to the Construction Team on all matters relating to design and

construction.

 

1.1.2 Owner and Design/Builder commit at all times to cooperate fully with each

other, and proceed on the basis of trust and good faith, to permit each party to

realize the benefits afforded under this Agreement.

 

1.2 DESIGN/BUILDER'S ORGANIZATIONAL PLAN.

 

1.2.1 The Owner and the Design/Builder agree that the services to be provided by

the Design/Builder under this Agreement depend on the skills of the

 

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Design/Builder's individual staff members and specific subconsultants proposed

for the Project, and that the selection of the Design/Builder would not have

been made by the Owner except for its confidence in the professional abilities

of the Design/Builder and the specific personnel and subconsultants it has

represented will be assigned to the Project. The Owner and the Design/Builder

agree further that the aforesaid matters are substantial and material to this

Agreement. The Design/Builder agrees and covenants that, to the extent within

the Design/Builder's control, the business organization of the Design/Builder,

and the management and technical personnel represented as those to be performing

the work under this contract, including those firms, venture partners,

associates or consultants identified as performing design and construction

management service, in accordance with the organizational chart set forth in the

Part 1 Report defined herein and made a part hereof as Exhibit #1, shall not be

changed, nor shall the proportion of work or responsibilities be appreciably

changed, without the prior written consent of the Owner, which consent shall be

at the Owner's discretion but not unreasonably withheld. Further, upon the

reasonable request of the Owner, the Design/Builder shall replace any staff

assigned to the Project with other qualified personnel.

 

1.2.2 Design/Builder covenants that all the Work shall be done in a good and

workmanlike manner and that all Materials furnished and used in connection

therewith shall be new and approved by the Owner, except as otherwise expressly

provided for in the Drawings and Specifications. Design/Builder shall cause all

Materials and other parts of the Work to be readily available as and when

required or needed for or in connection with the construction, furnishing and

equipping of the Improvements

 

1.2.3 The agreements between the Design/Builder and the persons or entities

identified in this 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.

 

1.2.4 Design services required by the Design/Builder under this Agreement shall

be performed by qualified architects and other design professionals. The

services of such design professionals shall be performed in a timely manner

consistent with professional skill and care so as not to delay or hinder the

progress of the Project. The Design/Builder represents, and the Owner

acknowledges, that the design services under this Agreement shall be performed

in accordance with prevailing professional standards, consistent with

professional skill and care necessary for the proper and effective design of

similar facilities of comparable size and in comparable areas. The contractual

obligations of such professional persons or entities are the responsibility of

the Design/Builder.

 

1.2.4.1 The Design/Builder shall provide design services in conjunction with the

other services described under Article 2 of this Agreement, including but not

limited to all architectural, civil, structural, mechanical and electrical

engineering services for core, shell, processing, packaging, warehousing and

interior of the Project, design and engineering services necessary for lighting,

acoustics, paging, security, code, directional and graphic signage, FF&E

planning, layout and specification, voice/data infrastructure and distribution,

landscaping, coordinating the Project with the requirements for

 

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equipment to be purchased and installed by the Owner, and any specialty

consultant the Design/Builder deems necessary to complete the Project in a

manner consistent with the Owner's intended uses.

 

1.2.5 Construction budgets shall be prepared by qualified professionals, cost

estimators or contractors. The contractual obligations of such professional

persons or entities are the responsibility of the Design/Builder.

 

1.2.6 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 Agreement.

 

1.3 EXTENT OF AGREEMENT & DOCUMENT PRECEDENCE. This Agreement represents the

entire agreement between the Owner and the Design/Builder and supersedes all

prior negotiations, representations or agreements. Nothing contained in this

Agreement shall create a contractual relationship between the Owner and any

person or entity other than the Design/Builder. When the Drawings and

Specifications are complete, they shall be identified by amendment to this

Agreement as the basis of the Guaranteed Maximum Price. Interpretation of this

Agreement shall be governed by the following order of document precedence

beginning with the highest: 1) this Agreement as may be amended in writing by

the Owner and Design/Builder together with the Owner's Criteria attached herein

as Exhibit #2; 2) assumptions and qualifications as may be specifically

identified and mutually approved by the Owner and Design/Builder in establishing

the Guaranteed Maximum Price; and 3) the Part 1 Report and Addenda 1 through 3

and 5 through 8 (Addendum 4 intentionally deleted) as modified by the Contract

Documents including the Drawings and Specifications.

 

1.4 MISCELLANEOUS DEFINITIONS

 

"Agreement" or "Contract" means this Agreement as executed between the parties.

 

"Application for Payment" means the monthly billing submitted by the

Design/Builder in accordance with the provisions of Article 11.

 

"Architect/Engineer" or "Architect" means those licensed professionals in the

direct employ of the Design/Builder or a Design Consultant to the Design/Builder

providing services in accordance with Section 1.2.4 herein.

 

"Change" or "Changes" has the meaning as applicable in Article 9.

 

"Construction Contingency" shall have the meaning as set forth in Section 6.5.

 

"Contract Documents" or "Construction Documents" consist of the bidding

information and instructions, bidding forms, bid guarantees and performance

bonds, General and Special Conditions, Drawings and Specifications prepared by

the Design/Builder, and related documents necessary to define the scope and

performance of the Work as prepared in cooperation between the Owner and

Design/Builder as set forth in Section 2.2.4

 

"Cost of Work" shall have the meaning as set forth in Section 8.1.

 

"Day" or "Days" shall mean calendar days unless otherwise specifically noted in

this Agreement or in the Contract Documents.

 

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"Design Consultant" is a qualified, licensed design professional who is not an

employee of Design/Builder, but is retained by Design/Builder, or employed or

retained by anyone under contract with Design/Builder or Subcontractor, to

furnish design services required under the Contract Documents.

 

"Design/Builder" means Shambaugh & Son, LP.

 

"Design/Builder Compensation" has the meaning set forth in Article 7.

 

"Design Development" or "Design Development Documents" have the meaning as set

forth in Section 2.2.3.

 

"Drawings and Specifications" means the documents prepared by the

Architect/Engineer for the Schematic Design, Design Development and Construction

Documents phases for the purpose of defining the scope and performance of the

Work in combination with the balance of the Construction Documents, conforming

to the standard of practice as set forth in Section 1.2.4 and as defined in

Article 2 for each phase of design services, together with addenda, bulletins

and other related documentation issued as necessary during the course of the

Work.

 

"Estimate of Probable Cost" has the meaning as set forth in Section 2.2.7.

 

"Final Completion" is the date following Substantial Completion on which the

Work is completed, including all necessary inspections, process and equipment

testing, punch list work, all applicable permits are in place and all start-up

activities have been completed, thereby allowing the Project in its entirety to

be used for its intended purpose without condition or temporary period of time,

and all compliance requirements of Factory Mutual have been satisfied.

 

"Final Application for Payment" is the Application for Payment following Final

Completion of the Project for which the Design/Builder requests payment for the

balance of all incurred costs in accordance with the Guaranteed Maximum Price

and the provisions of Article 11.

 

"Fixed Limit of Cost" is the maximum cost amount most recently approved by the

Owner as the budget limit for all elements of the Project designed, specified or

constructed by the Design/Builder and included under this Agreement.

 

"General Conditions" and "Special Conditions" shall have the meanings as

generally understood to represent those documents used in combination with the

balance of the Construction Documents to set forth the terms and conditions for

undertaking construction on the Site, subject to approval by the Owner.

 

"Guaranteed Maximum Price" is the amount set forth in Article 6.

 

"Hazardous Conditions" are any materials, wastes, substances and chemicals

deemed to be hazardous under applicable Legal Requirements, or the handling,

storage, remediation, or disposal of which are regulated by applicable Legal

Requirements. Hazardous Conditions shall not include (i) any substances brought

onto the Site by Design/Builder and/or Subcontractor or Sub-subcontractor and

(ii) any such substances which are handled and stored in accordance with

applicable Legal Requirements.

 

"Interim Completion Dates" means the date(s) of Substantial Completion for a

portion(s) of the Project as may be agreed in writing between the parties.

 

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"Legal Requirements" are all applicable federal, state and local laws, codes,

ordinances, rules, regulations, orders and decrees of any government or

quasi-government entity having jurisdiction over the Project, the Site or the

Work.

 

"Liquidated Damages Rate" has the meaning set forth in Section 5.4 of this

Agreement.

 

"Master Project Construction Schedule" shall have the meaning as set forth in

Section 2.2.6.

 

"Owner" is the T. Marzetti Company, LLC.

 

"Owner's Criteria" refers to the document prepared by the Owner dated July 20,

2004 and attached hereto in Exhibit #2.

 

"Part I Agreement" means the agreement dated 1 October 2003 between the Owner

and the Design/Builder titled Standard Form of Preliminary Agreement Between

Owner and Design/Builder.

 

"Part I Report" refers to the Project Buckeye New Salad Dressing Facility Part I

report issued in October, 2003 by the Design/Builder, together with electronic

files of drawings make up Exhibit #1.

 

"Project" shall have the meaning as set forth in the recitals to this Agreement.

 

"Revised Scheduled Completion Date" shall have the meaning as set forth in

Section 5.4.2.

 

"Scheduled Completion Date" means the date by which the Design/Builder is

required to achieve Substantial Completion. The Scheduled Completion Date shall

be mutually agreed between the Design/Builder and Owner as provided in Section

5.2 herein.

 

"Schematic Design" or "Schematic Design Documents" have the meaning as set forth

in Section 2.2

 

"Site" is the location of the Project in Horse Cave, Kentucky.

 

"Subcontractor" is any person or entity retained by Design/Builder as an

independent contractor to perform a portion of the Work and shall include

materialmen and suppliers.

 

"Sub-Subcontractor" is any person or entity retained by a Subcontractor as an

independent contractor to perform any portion of a Subcontractor's Work and

shall include materialmen and suppliers.

 

"Substantial Completion" shall have the meaning as set forth in Section 5.3 of

this Agreement.

 

"Work" is all or part of the design, construction, furnishing and equipping for

the Project to be completed by the Design/Builder under this Agreement, which

shall include all aspects of the Project to be designed or specified as

described herein.

 

"Work Product" shall mean the Construction Documents and all other documents as

set forth in Section 15.3.1.

 

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                                    ARTICLE 2

 

                            DESIGN/BUILDER'S SERVICES

 

The Design/Builder will perform the following services under this Agreement as

described in this Article. The Design/Builder shall designate a representative

authorized to act on the Design/Builder's behalf with respect to the Project.

The parties agree that the services provided under Sections 2.2.1 and 2.2.2

herein have been provided by the Design/Builder under the Part 1 Agreement with

the Owner, the costs for which are separate from the Guaranteed Maximum Price

pursuant to Article 6 herein. The parties further agree that the Owner has

accepted the Part I Report, subject to any modifications necessary to conform

the Conceptual Design and Schematic Design to the Owner's Criteria.

 

2.1 DUTIES IN GENERAL. The Design/Builder will provide management and

coordination of the Work on the Project so that each component is completed on

time and within the Guaranteed Maximum Price.

 

2.1.1 Establish and implement a comprehensive program including all appropriate

direction, procedures, coordination, administration, review and expediting

required to complete the Project is a timely, economical and acceptable manner.

 

2.1.2 Provide all services in compliance with all applicable federal, state and

local laws, regulations and orders.

 

2.1.3 Provide all services promptly so as to permit the timely completion of

each component of the Project.

 

2.1.4 Review all materials and equipment specified for the Project to ensure

they are consistent with the Contract Documents, and notify the Owner if, in the

opinion of the Design/Builder, such materials and equipment may not be adequate

for the purpose for which they are specified.

 

2.1.5 Respond to all inquiries from the Owner or the Owner's Representative in

not more than two (2) business days from the date of the inquiry. Each response

will adequately address the questions raised and, if requested, will be in

writing; provided, however, that if two (2) business days is not a reasonable

period of time for the Design/Builder to prepare the response, the time period

will be extended to an adequate period.

 

2.1.6 The Design/Builder's duties and obligations as set forth herein, and any

liabilities arising hereunder, will at no time be diminished or released by

reason of any approval by the Owner of any documents prepared by the

Design/Builder, it being expressly understood that the Owner is at all times

relying upon the Design/Builder's skill and knowledge in preparing such

documents.

 

2.1.7 Develop and enforce policies and procedures to prevent the presence, use

or possession of unlawful drugs, controlled substances, weapons and explosives

on the Site.

 

2.2 PRECONSTRUCTION SERVICES

 

2.2.1 PROGRAMMING AND CONCEPTUAL DESIGN.

 

2.2.1.1 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.

 

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2.2.1.2 The Design/Builder shall consult with the Owner, and other parties as

the Owner may designate, to ascertain the applicable requirements of the Project

and shall review the understanding of such requirements with the Owner,

providing a preliminary evaluation of the Owner's program and project budget

requirements, each in terms of the other.

 

2.2.1.3 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 requirements may cause a

violation of such laws.

 

2.2.1.4 The Design/Builder shall document the applicable requirements necessary

for the various Project functions or operations, including projected functional

areas and relationships, architectural, mechanical, electrical and related

special systems, and interior systems, furniture, furnishings and equipment.

 

2.2.1.5 The Design/Builder shall review with the Owner alternative approaches to

design and construction of the Project.

 

2.2.1.6 The Design/Builder shall submit to the Owner the completed Project

Program together with Conceptual Design Documents, a statement of the proposed

Fixed Limit of Cost, and a proposed schedule for completion of the Project.

Conceptual 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, structural,

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. This submission, together with any modifications

required by the Owner shall, with the Owner's approval, become the basis for

Schematic Design.

 

2.2.2 SCHEMATIC DESIGN PHASE

 

2.2.2.1 The Design/Builder shall provide a further evaluation of the Program and

the Project budget and schedule requirements, each in terms of the other.

 

2.2.2.2 The Design/Builder shall prepare for approval by the Owner Schematic

Design Documents consisting of scaled drawings, outline specifications and other

supporting information illustrating the scope and relationship of the principal

site, architectural, structural, mechanical and electrical elements of the

Project.

 

2.2.2.3 The Schematic Documents, at a minimum, shall consist of the following

drawings and supporting information:

 

a)    Perspective sketch studies and study models to the extent required to

      convey the three-dimensional character of the architectural design;

 

b)    Architectural plans and sections illustrating the configuration and scale

      of all building levels and program spaces;

 

c)    Site Plans illustrating the relationship and scale of the building, the

      site, site elements and features including topography, landscaping,

      commercial access, pedestrian and vehicular circulation, parking and

      building services;

 

d)    Building Elevations;

 

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e)    Structural sketches illustrating the framing methods and systems;

 

f)    Mechanical and electrical sketches illustrating the basic organization and

      distribution of building systems;

 

g)    Outline Specifications describing the size and components of the entire

      Project with respect to architectural, structural, mechanical, electrical,

      fire protection, building management, life safety, vertical transportation

      systems, materials and such other elements as may be appropriate; and

 

h)    Review of zoning codes, building codes, and any other statute, regulation,

      ordinance, rule or law of any governmental or regulatory authority

      applicable to the Project, to the extent ascertainable by due inquiry,

      including identification of all required governmental reviews, permits and

      approvals, to the extent ascertainable by due inquiry.

 

2.2.2.4 At intervals appropriate to the progress of the Schematic Design Phase,

the Design/Builder shall provide intermediate Schematic Design Documents to the

Owner for review, which will be made in a timely manner so as to cause no delay

to the Project.

 

2.2.2.5 Upon completion of the Schematic Design Phase, the Design/Builder shall

prepare a corresponding cost estimate and schedule in accordance with Sections

2.2.2 and 2.2.3 for review by the Owner. Should the estimate differ from the

Fixed Limit of Cost previously proposed by the Design/Builder, the

Design/Builder shall identify the cause(s) for such difference and recommend in

writing for the Owner's approval any modification in the Schematic Documents

necessary to conform the Estimate of Probable Cost to the Fixed Limit of Cost.

 

2.2.3 DESIGN DEVELOPMENT PHASE

 

2.2.3.1 Based on the then current Owner approved Schematic Design Documents,

Fixed Limit of Cost and Project schedule and any further adjustments in the

scope or quality of the Project authorized by the Owner, the Design/Builder

shall prepare for approval by the Owner, the Design Development Documents. The

Design Development Documents shall conform to the organization, format and scale

to be used for the completed Construction Documents, and shall at a minimum

include: 1) revised and refined versions of all drawings, outline specifications

and other documents listed under the previous Schematic Design Phase; 2)

additional plan and section details, descriptions, drawings, specifications and

documents sufficient to evaluate the functionality of all programmed, ancillary

and incidental building spaces and site features; and 3) additional details,

descriptions, drawings, specifications and documents sufficient to evaluate the

quality, constructability, operation and cost of all major building systems,

including architectural, structural, mechanical and electrical systems,

materials, and all such other essential elements as may be necessary to define

the scale, configuration and scope of the Project.

 

2.2.3.2 At intervals appropriate to the progress of the Design Development

Phase, the Design/Builder shall provide intermediate Design Development

Documents to the Owner for review, which will be made in a timely manner so as

to cause no delay to the Project.

 

2.2.3.3 Upon completion of the Design Development Phase, prepare a corresponding

cost estimate and schedule in accordance with Sections 2.2.2 and

 

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2.2.3 for review by the Owner. Should the estimate differ from the Fixed Limit

of Cost approved at the completion of Schematic Design, the Design/Builder shall

identify the cause(s) for such difference and recommend in writing for the

Owner's approval any modification in the Design Development Documents necessary

to conform the Estimate of Probable Cost to the Fixed Limit of Cost.

 

2.2.4 CONSTRUCTION DOCUMENTS PHASE

 

2.2.4.1 Based on the then current Owner approved Design Development Documents,

Fixed Limit of Cost, Project Schedule and any further adjustments in the scope

or quality of the Project authorized by the Owner, the Design/Builder shall

prepare, for approval by the Owner, Drawings and Specifications setting forth in

usual and customary detail the requirements for the construction of the Project.

Specifications shall be prepared in conformance with the divisional format of

the Construction Specifications Institute. The Drawings and Specifications shall

be sufficiently complete, clear, and fully coordinated, and in compliance with

all applicable codes, ordinances, statutes, laws and regulations, for the

Design/Builder to fulfill its obligations pursuant to this Agreement.

Specifications shall require Subcontractors to provide all necessary assistance

in the utilization of equipment, systems, operation and maintenance manuals, and

in training of the Owner personnel for operation and maintenance.

 

2.2.4.2 At intervals appropriate to the progress of the Construction Documents

Phase, the Design/Builder shall provide intermediate Construction Documents to

the Owner for review and approval, which will be made in a timely manner so as

to cause no delay to the Project.

 

2.2.4.3 The Design/Builder shall inform the Owner of any changes in requirements

or in construction materials, systems or equipment as the Drawings and

Specifications are developed and make adjustments within the estimate of Project

Cost and Project schedule appropriately.

 

2.2.5 CONSULTATION DURING PROJECT DEVELOPMENT. Schedule and attend regular

meetings with its Architect and the Owner during conceptual and schematic

design, design development and preparation of bid documents with respect to site

use and improvements, selection of materials, building systems and equipment.

Provide recommendations on construction feasibility, availability of materials

and labor, time requirements for installation and construction, and factors

related to cost including costs of alternative designs or materials, preliminary

budgets and possible economies.

 

2.2.6 SCHEDULING. Develop a Master Project Construction Schedule, after

consultation with the Owner. The Master Project Construction Schedule and each

update thereto will establish and conform to the Owner's occupancy requirements

for the Project and be subject to the Owner's approval. The Master Project

Construction Schedule will coordinate and integrate the Design/Builder's design

efforts with the construction, material and equipment delivery and installation

schedules for each part of the Project. The Master Project Construction Schedule

will be updated at the end of the schematic design, design development and

contract documents phases and will incorporate a detailed schedule for the

construction operations of the Project, including realistic activity sequences

and durations, time for the Owner reviews and approvals, allocation of labor and

materials, processing of shop drawings and samples, delivery of products

requiring long lead time procurement, and the

 

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Owner occupancy requirements showing portions of the Project having occupancy

priority. The Master Project Construction Schedule shall be sufficiently

detailed to allow for a full evaluation and understanding by the Owner.

 

2.2.7 ESTIMATE OF PROBABLE COST. Prepare a cost estimate as soon as major

Project requirements have been identified, and update periodically for the

Owner's approval. Prepare an estimate based on a quantity survey of Drawings and

Specifications at the end of the schematic design, design development and

contract document phases for approval by the Owner as the Estimate of Probable

Cost. Update and refine this estimate for the Owner approval as the development

of the Drawings and Specifications proceeds. Advise the Owner if it appears the

Estimate of Probable Cost will exceed the then current, approved Fixed Limit of

Cost, and make recommendations for corrective action. Such construction cost

estimates shall include reasonable and appropriate contingency amounts for

potential increases in the cost which might result from design, bidding or price

escalation, and shall be sufficiently detailed to allow for a full evaluation

and understanding by the Owner. The Design/Builder shall recommend provisions in

the Contract Documents for alternate bids to reduce, if necessary the

construction cost to the approved Fix Limit of Cost.

 

2.2.8 COORDINATION OF CONTRACT DOCUMENTS. Review the Drawings and Specifications

as they are being prepared, recommending alternative solutions whenever design

details are discovered which may adversely affect construction feasibility,

schedules or cost.

 

2.2.9 CONSTRUCTION PLANNING.

 

2.2.9.1 Recommend for purchase and expedite the procurement of long-lead items

to ensure their delivery by the required dates.

 

2.2.9.2 Make recommendations to the Owner regarding the division of Work in the

Drawings and Specifications to facilitate the bidding and awarding of

Subcontracts, allowing for phased construction if approved by the Owner and

taking into consideration such factors as time of performance, availability of

labor, overlapping trade jurisdictions, provisions for temporary facilities and

the operating requirements of the Owner.

 

2.2.9.3 Review the Drawings and Specifications for completeness, eliminate areas

of conflict and overlapping in the Work to be performed by the various

Subcontractors, and prepare prequalification criteria for bidders. As part of

its review, the Design/Builder shall report to the Owner in writing any errors,

inconsistencies, or omissions the Design/Builder discovers and provide for

correction of such errors, inconsistencies or omission by its Architect.

 

2.2.9.4 Prepare necessary bidding information and instructions, bidding forms,

General and Special Conditions, and form of agreement between the Design/Builder

and Subcontractors. These documents and all other Contract Documents shall be

subject to approval by the Owner prior to being issued for bidding.

 

2.2.9.5 Develop Subcontractor interest in the Project, issue bid documents to

bidders, facilitate questions from bidders, issue addenda as needed with the

assistance of the Architect, and take competitive bids or proposals on the Work

of the various Subcontractors. After analyzing the bids or proposals,

 

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recommend to the Owner for approval the Subcontractors to which such contracts

shall be awarded.

 

2.2.10 EQUAL EMPLOYMENT, LABOR AGREEMENTS, LEASE REQUIREMENTS AND SAFETY

REGULATIONS. Determine applicable requirements for each of the captioned items

for inclusion in Project bidding documents.

 

2.3 CONSTRUCTION PHASE.

 

2.3.1 PROJECT CONTROL. Manage, direct, monitor and oversee the Work of the

Subcontractors and its own forces and coordinate the Work with the activities

and responsibilities of the Owner, Architect and Design/Builder to complete the

Work in accordance with the terms of this Agreement.

 

2.3.1.1 Maintain a competent full-time staff at the Site in accordance with

Paragraph 1.2 of this Agreement to coordinate and provide general direction of

the Work and progress of the Subcontractors and its own forces on the Project.

 

2.3.1.2 Establish on-site organization and lines of authority in order to carry

out the overall plans of the Construction Team.

 

2.3.1.3 Develop procedures for coordination among the Design/Builder, the

Architect, and the Owner, with respect to all aspects of the Project and

implement such procedures.

 

2.3.1.4 Provide for its Architect or Project Manager, as appropriate, to

undertake all construction administration activities consistent with

professional standards including but not limited to: 1) visiting the Site at

regular intervals appropriate to the progress of construction as required to

become familiar with the progress and quality of the work in conformance with

the Contract Documents; 2) attending all job meetings; 3) providing timely

review of all submittals and responses to Requests for Information; 4) preparing

Bulletins and Change Orders; 5) reviewing Certificates for Payment; 6) advising

the Owner of any need for testing or special inspection of subcontractor work;

7) preparing punch lists and lists of incomplete work; 8) conducting inspections

to determine the date of completion for each subcontract; and 9) coordinating as

necessary with all trade contractors to produce as-built documents in electronic

format.

 

2.3.1.5 Schedule and conduct regular progress meetings at which the

Design/Builder and the Owner can discuss jointly such matters as procedures,

progress, problems and scheduling. The Design/Builder shall prepare and

distribute meeting minutes within three (3) business days following such

meetings.

 

2.3.1.6 Provide regular monitoring of the schedule as construction progresses.

Identify potential variances between scheduled and probable completion dates.

Review the schedule for Work not started or incomplete, and recommend to the

Owner adjustments in the schedule to meet the required completion date. Provide

summary reports of each monitoring and document all changes in schedule.

 

2.3.1.7 Determine the adequacy of the Subcontractors' and its own personnel and

equipment and the availability of materials and supplies to meet the schedule.

Implement courses of action, subject to the reasonable approval of the Owner

when requirements of a Subcontract are not being met.

 

                                                                         Page 11

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2.3.1.8 As necessary to provide for the accurate and coordinated layout and

construction of the Work shown in the Contract Documents, the Design/Builder

shall establish and certify all principal building layout lines, elevations of

the bottom of footings, floor levels and key Site and structural elevations and

shall verify by a qualified surveyor or professional engineer critical layout

lines and elevations established by Subcontractors. The Design/Builder shall

record all such surveys and any other test results in duplicate, make all such

records available to the Owner and the Architect at all times, and at the

completion of the Project deliver all such records to the Owner.

 

2.3.2 PHYSICAL CONSTRUCTION. Provide all labor, materials, supplies, apparatus,

appliances, construction equipment, fixtures, tools, implements, transportation,

utilities, storage and subcontract items which are necessary for the completion

of the Work. To the extent that the Design/Builder performs any Work, other than

General Conditions Work, with its own forces, it shall, with respect to such

Work, be bound to the extent not inconsistent with this Agreement, by the

procedures and the obligations with respect to such Work as may govern the

Subcontractors under the Contract Documents including any General and Special

Conditions to the Subcontracts. No Work shall be performed by the Design/Builder

without the reasonable consent of the Owner.

 

2.3.3 COST CONTROL. Develop and monitor a system of Project cost control.

Periodically revise and refine the initially approved project construction

budget, incorporate approved changes, and develop cash flow reports and

forecasts as needed. Identify variances between actual and budgeted or estimated

costs and advise the Owner whenever projected cost exceeds budgets or estimates.

 

2.3.3.1 Maintain cost accounting records on authorized Work performed under unit

costs, actual costs, or other basis requiring project accounting records for the

administration of the Work. Afford the Owner access to these records and

preserve them for the Owner until completion of the Project at which time they

shall be delivered to the Owner, or if not desired by the Owner retained for a

period of six (6) years. Such records shall be in such detail as is customary

for the Design/Builder and presented in such form as requested by the Owner.

 

2.3.4 BULLETINS AND CHANGE ORDERS. Develop and implement a system for the

preparation, review and processing of Bulletins and Change Orders. Recommend

necessary or desirable changes to the Owner, review requests for changes, submit

recommendations to the Owner and assist in negotiating Change Orders.

 

2.3.5 PAYMENTS TO SUBCONTRACTORS. Develop and implement a procedure for the

review, processing and payment of applications by Subcontractors for progress

and final payments, subject to the approval of the Owner and Architect.

 

2.3.6 PERMITS AND FEES. Except as provided in Section 3.5, the Design/Builder

shall obtain, all building permits and special permits for permanent

improvements, including permits for inspection or temporary facilities required

to be obtained directly by the various Subcontractors, obtain approvals from all

the authorities having jurisdiction, give all notices and comply with all laws,

ordinances, rules, regulations, and orders of any public authority bearing on

the performance of the Work as it pertains to the construction process.

 

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2.3.7 THE OWNER'S CONSULTANTS. If required, assist the Owner in selecting,

coordinating and retaining professional services of testing laboratories and

special consultants.

 

2.3.8 INSPECTION AND CORRECTIVE WORK. Inspect the Work for defects and

deficiencies, and provide for correction of all Work rejected by the Owner or

known by the Design/Builder to be defective, failing to conform to the

requirements of the Contract Documents, or conflicting with any laws, ordinances

rules, regulations and restrictions whether observed before or after Substantial

Completion and whether or not fabricated, installed or completed.

 

2.3.9 PROTECTION OF PERSONS AND PROPERTY.

 

2.3.9.1 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 Agreement. The Design/Builder shall develop, communicate

in writing and monitor safety standards for the Project, review the safety

programs of each of the Subcontractors and make appropriate recommendations for

modification of such programs to conform to the Project safety standards, and

Legal Requirements.

 

2.3.9.2 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. The Design/Builder's responsibilities hereunder include, but are

not limited to, protection of persons and property from damage by the elements,

theft or vandalism.

 

2.3.9.3 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 the property at the Site caused in whole or in part by

the Design/Builder, a Subcontractor or anyone directly or indirectly employed by

any of them, or by anyone for whose acts they may be liable.

 

2.3.10 WASTE REMOVAL. Maintain the Project free and clear of accumulated waste

materials and rubbish. Ensure that the Subcontractors fulfill their obligation

not to create any condition that would constitute a safety or health hazard. At

the completion of each component of the Project, the Design/Builder will ensure

the removal of all waste materials and rubbish, tools, equipment, machinery and

surplus materials from and about the Project.

 

2.3.11 DOCUMENT INTERPRETATION. Refer to the Design/Builder's Architect all

questions for interpretation of the documents prepared by the Architect. The

Architect shall be the interpreter of the requirements of such documents and the

judge of the performance thereunder by the Design/Builder and the

Subcontractors. The Architect's decisions as to the requirements of the

documents shall be final and not subject to further proceedings, if made in good

faith.

 

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2.3.12 SHOP DRAWINGS AND SAMPLES. Design/Builder shall prepare or cause to be

prepared, as part of the Work, all shop drawings and other detail drawings not

made a part of the Drawings and Specifications which are required in the

performance of Design/Builder's obligations hereunder. Consistent with this

requirement, the Design/Builder shall establish and implement procedures for

expediting the processing and approval of shop drawings and samples. The

Design/Builder shall provide for the receipt, review and approval of all

Subcontractor shop drawings and sample submittals for completeness and

conformance with the Contract Documents consistent with professional standards

of care.

 

2.3.13 REPORTS AND PROJECT SITE DOCUMENTS. Record the progress of the Project.

Submit on a monthly basis, written progress reports in a format acceptable to

the Owner that include an updated project schedule, information on the

Subcontractors' work, the percentage of completion, cost data with budget

implications, progress photographs and change order activity.

 

2.3.13.1 Maintain at the Site a daily log in which the Design/Builder will

record the progress of each part of the Project including a record of weather,

Subcontractors' work on the Site, the number of and type of workers on the Site,

work accomplished, problems encountered, unusual events and other relevant data

as the Owner may require. The log shall be made available at the request of the

Owner.

 

2.3.13.2 Maintain at the Site, on a current basis: records of all agreements

with Subcontractors and any supplier, current Contract Documents, Subcontractor

submittals and payment applications, reports, instructions to Subcontractors,

samples, purchases, materials, equipment, maintenance and operating manuals and

instructions, and other construction related documents, including all revisions.

Obtain data from Subcontractors and maintain a current set of record Drawings,

Specifications and operating manuals. These materials are to be maintained in

good and current order and marked to record all changes made during

construction. Maintenance of current and accurate as-built documents shall be a

prerequisite to full payment of the monthly progress payments pursuant to the

provisions of Article 11.

 

2.3.13.3 Promptly following completion of each part of the Project, prepare

as-built documents identifying deviations in the Work from information provided

in the Contract Documents for delivery to the Owner.

 

2.3.13.4 Promptly following completion of each part of the Project, obtain from

the respective Subcontractors operating manuals and recommended preventive

maintenance routines for the equipment installed in such part of the Project.

Review such manuals and routines to ensure they are generally adequate for the

purpose for which they are intended. At the completion of the Project, deliver

all such records to the Owner.

 

2.3.14 SUBSTANTIAL COMPLETION. With its Architect, provide written notice to the

Owner that the Design/Builder believes Substantial Completion of the Work or

designated portions have been achieved, and prepare a list of incomplete items

and a schedule for their completion.

 

2.3.15 START-UP. Upon or as the completion of each part of the Project

approaches, direct the testing, start-up and check-out of all utilities and

operating systems and equipment in accordance with the Contract Documents. The

 

                                                                         Page 14

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testing, start-up and check-out will be thorough and conducted in such a manner

so as to discover any defects in accordance with Exhibit #3. The Design/Builder

will advise the Owner in writing of any defects.

 

2.3.16 TRAINING. During the testing, start-up and check-out described in 2.3.15

herein, provide for the Owner's maintenance personnel to receive training in the

proper operation of, and performance of routine maintenance on, all utilities,

operating systems and equipment in accordance with the Contract Documents.

Provide for videotaping such training for the Owner's subsequent use.

 

2.3.17 FINAL COMPLETION. With its Architect, provide written notice to the Owner

that the Design/Builder believes Final Completion of the Project as a whole has

been achieved, and the Work is ready for final inspection. Secure and transmit

to the Owner required guarantees, affidavits, releases, bonds and waivers

required by this Agreement. Turn over to the Owner all keys, manuals, record

drawings, schedules of warranties and maintenance stocks required by this

Agreement.

 

2.3.18 WARRANTY. Where any Work is performed by the Design/Builder's own forces

or by Subcontractors under contract with the Design/Builder, the Design/Builder

shall warrant for a period of one year following the Date of Substantial

Completion that all materials and equipment included in such Work will be new,

unless otherwise specified, and that such Work will be of good quality, free

from improper workmanship and defective materials and in conformance with the

Drawings and Specifications. With respect to the same Work, the Design/Builder

further agrees to correct all such defective material and workmanship for a

period of one year from the Date of Substantial Completion, including any

additional testing and inspections, or within such longer period of time as may

be set forth in the Contract Documents. The Design/Builder shall collect and

deliver to the Owner any specific written warranties required by the Contract

Documents.

 

2.3.18.1 If there are more than three (3) calls for warranty work for any reason

on a specific system, piece of equipment, area or item of work, the warranty

period shall extend to a period of one (1) year beyond the later of: 1) the date

of the last repair; or 2) one (1) year past the date at which the product or

work item is functioning as intended for an industry standard period of time

without requiring service or repairs.

 

2.4 ADDITIONAL SERVICES. At the request of the Owner the Design/Builder will

provide the following additional services upon written agreement between the

Owner and Design/Builder defining the extent of such additional services and the

amount and manner in which the Design/Builder will be compensated for such

additional services provided, however, the Design/Builder shall not be

compensated for any of the following services made necessary by the fault of the

Design/Builder:

 

2.4.1 Services related to appraisals or valuations of existing conditions,

facilities or equipment.

 

2.4.2 Preparation of professional perspectives, models or renderings not

provided for in this Agreement except insofar as these are otherwise useful or

necessary to the Design/Builder in the provision of its services hereunder.

 

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2.4.3 Obtaining training for maintenance personnel or negotiating maintenance

service contracts other than as provided for in the Contract Documents.

 

2.4.4 Consultation, negotiation or preparing documentation in support of Project

financing.

 

2.4.5 Surveys, site evaluations, legal descriptions and aerial photographs.

 

2.4.6 Soils, subsurface and environmental studies, reports and investigations

required for submission to governmental authorities or others having

jurisdiction over the Project.

 

2.4.7 Investigation or making measured drawings of existing conditions or the

verification of drawings or other Owner-provided information except as required

as a service by this Agreement.

 

2.4.8 Making revisions to the Contract Documents when such revisions are 1)

inconsistent with written approvals or instructions previously given by the

Owner; 2) are required by the enactment or revision of codes, laws or

regulations subsequent to the preparation of such documents; and 3) in all

events, are due to no act or failure to act on the part of the Design/Builder.

 

2.4.9 Serving or preparing to serve as an expert witness in connection with any

public hearing, arbitration proceeding or legal proceeding to which the

Design/Builder is not a party in its own name, which is not instituted by the

Design/Builder or in which the performance of the Design/Builder is not in

issue; provided, however that this Subparagraph shall not be interpreted to mean

that any appearance by the Design/Builder at any meeting of the Owner shall be

an Additional Service

 

                                    ARTICLE 3

 

                            OWNER'S RESPONSIBILITIES

 

3.1 The Owner will endeavor to timely provide the Design/Builder all information

it has regarding its requirements for the Project. The Owner and the

Design/Builder shall consult regarding the requirements of the Project and any

modifications which may be desirable in the Program, including the Owner's

objectives, schedule, constraints and criteria, including space requirements and

relationships, flexibility, expandability, special equipment, systems and site

requirements.

 

3.1.1 The Owner and Design/Builder shall agree to review periods for design

submissions and the Construction Documents, requests for information and Changes

in the Work. If the time period for any specific request or submission is not a

reasonable period of time for the Owner to prepare a response, the time period

will be extended to an adequate period.

 

3.2 The Owner shall designate a representative who shall be fully acquainted

with the Project and has authority to approve Changes in the Project, render

decisions promptly and furnish information expeditiously. The Design/Builder

will submit any documents requiring the Owner's decision reasonably in advance

of the date by which the decision is required.

 

3.3 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

 

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Owner's expense in a timely manner and shall not delay the orderly progress of

the Design/Builder's services.

 

3.4 SURVEY AND GEOTECHNICAL INFORMATION.

 

3.4.1 The Owner shall furnish for the Site of the Project all necessary surveys

describing the physical characteristics, legal limitations, utility locations,

and a legal description.

 

3.4.2 The Owner shall furnish the services of geotechnical engineers as

requested by the Design/Builder to properly design and prosecute the Work. 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.

 

3.4.3 With respect to the requirements of this Section 3.4, it is the

understanding between the parties that the Owner will furnish to the

Design/Builder all information required pursuant to this Section as it becomes

available.

 

3.5 Unless otherwise specified in the Contract Documents or this Agreement, the

Owner shall secure, with the assistance of the Design/Builder, and pay for: (i)

necessary zoning approvals, easements, variances, assessments and charges

required for the construction, use or occupancy of permanent structures or for

permanent changes in existing facilities; and (ii) environmental permits

required for the operation of the Project upon completion of construction. The

Owner shall cooperate with the Design/Builder in securing building and other

permits, utility capacity permits, licenses and inspections.

 

3.6 The Owner shall furnish such legal services as may be necessary for

providing the items set forth in Paragraph 3.5, and such auditing services as it

may require to verify the Design/Builder's Applications for Payment. Legal and

auditing services will not be provided for the Design/Builder, its Architect or

Subcontractors in the performance of their obligations under this Agreement.

 

3.7 This Section not used.

 

3.8 The Owner shall provide the insurance for the Project as provided in

Paragraph 12.4.

 

3.9 The services, information, surveys and reports required by the above

paragraphs shall be furnished with reasonable promptness at the Owner's expense

so as not to cause delay, and the Design/Builder shall be entitled to rely upon

the accuracy and completeness thereof.

 

3.10 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.

 

3.11 The Owner shall communicate with persons or entities employed or retained

by the Design/Builder through the Design/Builder, unless otherwise requested by

the Design/Builder and agreed to by the Owner.

 

3.12 SEPARATE CONTRACTORS.

 

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3.12.1 Design/Builder understands and agrees that the Owner has separately

contracted with third parties for the manufacture, supply, delivery and

installation of systems and equipment which are essential to and form the basis

of the Owner's operations. As the Design/Builder for the Project, Design/Builder

is responsible for the overall Project and for the integration of its design and

construction with the systems and equipment provided and installed by the

Owner's separate contractors. Design/Builder understands that in connection with

the installation of any system or equipment by any separate contractors or

manufacturers that Design/Builder shall oversee and coordinate the work of such

contractors and manufacturers and that the Owner shall be responsible only to

the extent that its contract with such parties requires supervising such work.

Design/Builder understands that it has the responsibility jointly with such

separate contractors or manufacturers to coordinate the Work with their

respective works.

 

3.12.2 The Owner and Design/Builder recognize that the work required of the

Owner's separate contractors may continue to be performed after final completion

of the Work under this Agreement. Without otherwise limiting the

Design/Builder's obligations hereunder, it is understood and agreed that nothing

herein shall require the Design/Builder to oversee or coordinate the work of the

Owner's separate contractors after final completion of the Work and acceptance

thereof by the Owner.

 

                                    ARTICLE 4

 

                                  SUBCONTRACTS

 

4.1 The Design/Builder shall furnish to the Owner, in writing, a list of

proposed Subcontractors for Work to be performed and materials to be supplied.

The Owner shall have the right to review and approve all bidding documents and

all proposed Subcontractors; any such approval shall not relieve the

Design/Builder of full responsibility for the Work to be performed or the

materials to be supplied by such parties.

 

4.2 Except as permitted by the Owner, the Design/Builder shall take competitive

bids for the Work to be performed by Subcontractors. Upon receipt of

Subcontractor bids, and during or after completion of negotiations by the

Design/Builder with the bidding Subcontractors, but prior to concluding any such

agreement, the Design/Builder shall prepare a complete bid analysis of the bids

received and transmit same to the Owner for review and approval. Such bid

analysis shall clearly establish the basis for award of the proposed

subcontracts.

 

4.2.1 The parties agree that the Design/Builder shall self-perform labor for the

scope of work associated with Divisions 15 and 16 as defined by the Construction

Specification Institute. In approving such self-performance, the Design/Builder

acknowledges its responsibility to obtain competitive bids for all materials and

equipment furnished for such Work as otherwise provided for in this Article 4.

 

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4.3 If the Owner refuses to accept a Subcontractor recommended by the

Design/Builder, the Design/Builder shall recommend an acceptable substitute and

the Guaranteed Maximum Price shall be modified by the difference in cost

occasioned by such substitution and an appropriate Change Order shall be issued.

 

4.4 Subcontracts will be between the Design/Builder and its Subcontractors. The

Subcontractor agreement, bid forms, General and Special Conditions shall be

developed by the Design/Builder for review and approval by the Owner.

 

                                    ARTICLE 5

 

                                    SCHEDULE

 

5.1 The Design/Builder acknowledges that the Scheduled Completion Date and any

Interim Completion Dates are essential to the Owner's satisfaction of its

obligations under separate agreements entered into with respect to construction

of and the supply and installation of equipment for the Project, and to the

Owner's business operations, financing and development plans and therefore time

is of the essence in meeting said dates. The Design/Builder acknowledges that

the Project as a whole shall be Substantially Complete no later than October 1,

2006 so as to meet the Owner's requirements. Interim completion dates for

separate components of the Project may be established in accordance with the

Master Construction Schedule established pursuant to Paragraph 2.2.6.

 

5.2 A Scheduled Completion Date of the Project as a whole shall be established

within thirteen months following the commencement of construction.

 

5.3 Substantial Completion of the Work is when construction is sufficiently

complete in accordance with the Drawings and Specifications, except for minor

punch list items, such that the Owner can occupy or utilize the Work for the use

for which it is intended. Warranties called for by this Agreement or by the

Contract Documents shall commence on the date of Substantial Completion of the

Work as a whole.

 

5.4 SCHEDULE DELAYS.

 

5.4.1 Should the construction phase through completion of the Work be exceeded

by Thirty (30) days or less, the Design/Builder shall receive no additional

compensation for services in accordance with Article 2 or increase in the

Guaranteed Maximum Price. Should the Construction Phase through completion of

the Work be exceeded by more than Thirty (30) days the Substantial Completion

Date and the Guaranteed Maximum Price, as applicable, shall be equitably

adjusted by mutual agreement in writing between the Owner and Design/Builder as

follows: (i) with respect to the Substantial Completion Date, such date shall be

extended by the number of days equal to the actual number of days that the

Project has been so delayed and, (ii) with respect to the Guaranteed Maximum

Price, the increase in the Guaranteed Maximum Price shall not exceed the actual

costs incurred by the Design/Builder in connection with such delay, and in no

event shall include any adjustment in compensation for lost opportunity or other

consequential damages which may be claimed by the Design/Builder. The conditions

under which the Design/Builder may be entitled to an extension in the

Substantial Completion Date and increase in the Guaranteed Maximum Price under

this Paragraph 5.4 is limited to the following circumstances and no others:

 

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      a)    Force Majeure, defined as the following events:

 

            1)    Fire, flood or other unavoidable insured casualty;

 

            2)    An embargo by the Government of the United States;

 

            3)    Except in connection with a labor dispute on-site or at

                  locations under the control of the Design/Builder, any strike,

                  work stoppage or lockout in industries essential to the

                  conduct of the Work in no way caused or resulting from default

                  or collusion on the part of the Design/Builder;

 

            4)    Unusual delays caused by any change in governmental controls

                  or regulations after the commencement of construction; or

 

            5)    Acts of war or terrorism having a demonstrable, direct,

                  adverse affect on the ability of the Design/Builder to perform

                  its responsibilities under the terms of this Agreement.

 

      b)    Undisclosed site conditions to the extent not consistent with the

            nature of the Work.

 

      c)    Any negligent act or omission of the Owner.

 

      d)    Delays in Owner furnished equipment or services.

 

      Notwithstanding the foregoing, if the Design/Builder's own acts or

failures to act cause or contribute to the extension of the Construction Phase

beyond the original schedule, the Design/Builder will receive no additional

compensation under this Agreement. Further, the Design/Builder will receive no

additional compensation under this Agreement for delays or additional costs to

the Design/Builder occasioned by acts, failures to act or delays by

Subcontractors under the Design/Builder's oversight and supervision.

 

5.4.2 Should the Scheduled Completion Date be exceeded by more than Thirty (30)

days due to causes beyond the control of the Design/ Builder occurring after the

Scheduled Completion Date is established pursuant to Section 5.2 other than as

set forth in Section 5.4.1 herein, the Scheduled Completion Date shall be

equitably adjusted by mutual agreement in writing between the parties, but in no

event to be later than October 1, 2006, however, the Design/ Builder shall not

be entitled to an increase in the Guaranteed Maximum Price on account of such

delay. Notwithstanding the foregoing, if the Design/Builder's own acts or

failures to act cause or contribute to the extension of the Construction Phase

beyond the original schedule, the Design/Builder will receive no schedule

extension under this Agreement.

 

5.4.3 In addition to the provisions of 5.4.1 herein, if the Design/Builder does

not achieve Substantial Completion by the Scheduled Completion Date, a penalty

will be assessed at the rate of $5,000 per day (the "Liquidated Damages Rate")

until Substantial Completion is achieved. If Design/Builder believes the

Scheduled Completion Date will not be met, the Design/Builder shall provide a

one-time written notice delivered to Owner not less than 90 days prior to the

Scheduled Completion Date providing a new Scheduled Completion Date (the

"Revised Scheduled Completion Date"), which shall be no more than 30 days

following the Scheduled Completion Date. If Design/Builder achieves Substantial

Completion on or before the Revised Scheduled Completion Date, the penalty for

the period up to the Revised Scheduled Completion Date shall be assessed at 50%

of the Penalty Rate. If the Design/Builder, provides

 

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written notice and does not achieve Substantial Completion by the Revised

Substantial Completion Date, the full Penalty Rate will be assessed up to the

date of Substantial Completion.