EXHIBIT 10.2
AGREEMENT BETWEEN
OWNER AND
DESIGN-BUILDER
Agreement made as of the 23 rd day of
June in the year of 2005.
Between: the OWNER,
BADGER STATE ETHANOL, LLC.
820 W. 17 th Street
Monroe, Wisconsin 53566
And the DESIGN-BUILDER,
AMG/GCI, LLC.
900 S. 12 th Avenue
Marshalltown, Iowa 50158
The Owner has made a Owner Contract with the
Design-Builder dated:
For the following Project: Design and
Construction of Modified Corn Milling Front-End Addition and
Related Modifications
The Owner and Design-Builder agree as
follows:
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TABLE OF CONTENTS
TABLE OF EXHIBITS
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A. Terms
and Conditions
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B. Process Equipment List
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C. Design-Builder’s Scope of
Work
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D. Determination of the Cost of the Work
(Schedule of Values)
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E. Insurance
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F.
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Project Master Schedule
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ARTICLE 1: THE CONTRACT
DOCUMENTS
§ 1.1
The Contract Documents form the
Contract for the Design and Construction of the Project (the
“Contract”). The Contract Documents consist of
this Agreement between Owner and Design-Builder and its attached
Exhibits (hereinafter, the “Agreement”); Supplementary
and other Conditions; Drawings, Specifications, Addenda issued
prior to execution of the Agreement; other documents listed in the
Agreement and Modifications issued after the execution of the
Agreement. Unless specifically enumerated in the Agreement,
the Contract Documents do not include other documents, such as
bidding requirements (advertisement or invitation to bid,
Instructions to Bidders, sample forms, the Contractor’s bid
or portions of Addenda relating to bidding requirements). The
Contract Documents shall not be construed to create a contractual
relationship of any kind between any persons or entities other than
the Owner and Design-Builder. An enumeration of the Contract
Documents, other than Modifications, appears in
Article 8.
§ 1.2
The Contract represents the entire
and integrated agreement between the parties hereto and supersedes
prior negotiations, representations, or agreements, either written
or oral.
§ 1.3
The Contract may be amended or
modified only by a Modification. A Modification is (1) a
written amendment to the Contract signed by both parties,
(2) a Change Order, (3) a Construction Change Directive
or (4) a written order for a minor change in the Work issued
by the Design-Builder.
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ARTICLE 2: THE WORK OF THIS
AGREEMENT
§ 2.1
The Design-Builder 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. The Work includes the architectural and
engineering services (including the development and creation of the
Drawings and Specifications), construction and management
services described in Exhibit C to this Agreement.
Design-Builder shall design and construct the Work to achieve the
capacity and performance outputs as required by the Contract
Documents and including those contained in Exhibit C to this
Agreement.
§ 2.2 Notwithstanding anything to the
contrary in the Contract Documents, while Design-Builder is
responsible to design and construct the facility, equipment
and addition in accordance with the Contract Documents so that
the process and technology used in the Work that is provided
by CVP, LLC and licensed to Owner can be implemented and
operational, Design-Builder does not guarantee that the CVP, LLC
process and technology, properly designed and installed, will
produce the capacity outputs required by the Contract
Documents.
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 issued by the Owner. Date of Commencement shall
be June 23, 2005.
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§ 3.2
The Contract Time shall be measured
from the date of commencement, subject to adjustments of this
Contract Time as provided in the Contract Documents.
§ 3.3
The Designer-Builder shall achieve
Substantial Completion of the Work in accordance with the master
schedule as provided in Exhibit F:
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Portion of Work
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Substantial Completion
Date
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1)
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ARTICLE 4: CONTRACT
SUM
§ 4.1
The Owner shall pay the
Design-Builder the Contract Sum in current funds for the
Design-Builder’s performance of this Agreement. The
Contract Sum shall be one of the following:
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Stipulated Sum in accordance
with Section 4.2 below. Also, See Addendum A,
Price.
§ 4.2
Stipulated Sum
§ 4.2.1 The Contract Sum shall be $23,020,000.00,
subject to additions and deductions as provided in the Contract
Documents.
§ 4.2.2 Unit prices, will be provided when
required for work outside the scope of work:
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Description
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Units
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Price
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1)
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§ 4.2.3 Assumptions or qualifications, if any, on
which the Stipulated Sum is based, are in
Exhibit C.
§ 4.3
Changes in the
Work
§ 4.3.1 Adjustments of the Contract Sum on
account of changes in the Work may be determined by any of the
methods listed in Article A.7 of Exhibit A., Terms and
Conditions.
§ 4.3.2 Where the Contract Sum is the Cost of the
Work, with or without a Guaranteed Maximum Price, and no specific
provision is made in Sections 4.3.1 or 4.2.2 for adjustment of the
Design-Builder’s Fee in the case of Changes in the Work, or
if the extent of such changes is such, in the aggregate, that
application of the adjustment will cause substantial inequity to
the Design-Builder or Owner, the Design-Builder’s shall be
equitably adjusted on the basis of the Fee established for the
original Work, and the Contract Sum shall be adjusted
accordingly.
ARTICLE 5: PAYMENTS
§ 5.1
Progress Payments
§ 5.1.1 Based upon Applications for Payment
submitted to the Owner by the Design-Builder, the Owner shall make
progress payments on the Contract Sum to Design-Builder as provided
below and elsewhere in the Contract Documents, including
Article A.9 of Exhibit A, Terms and
Conditions.
§ 5.1.2 The period covered by each Application
for Payment shall be bi-weekly.
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§ 5.1.3 Provided that an Application for Payment
is received every other Thursday , the Owner shall make payment to
the Design-Builder not later than 10 days after these bi-weekly
billings are submitted to the Owner for payment.
§ 5.1.4 With each Application for Payment, the
Design-Builder shall submit the most recent schedule of values
in accordance with the Contract Documents. The
schedule of values shall allocate the entire Contract Sum
among the various portions of the Work. Compensation for
design services shall be shown separately. The
schedule of values shall be prepared in such form and
supported by such data to substantiate its accuracy as the Owner
may require. This schedule of values, unless objected to
by the Owner, shall be used as a basis for reviewing the
Design-Builder’s Applications for Payment.
§ 5.1.5 In taking action on the
Design-Builder’s Applications for Payment, the Owner shall be
entitled to rely on the accuracy and completeness of the
information furnished by the Design-Builder and shall not be deemed
to have made a detailed examination, audit or arithmetic
verification of the documentation submitted in accordance with
Sections 5.1.4 or 5.1.5, or other supporting data; to have made
exhaustive or continuous on-site inspections; or to have made
examinations to ascertain how or for what purposes the
Design-Builder has used amounts previously paid on account of this
Agreement. Such examinations, audits and verifications, if
required by the Owner, will be performed by the Owner’s
accountants acting in the sole interest of the Owner.
§ 5.1.6 There shall be no front-loading of
payments and except with the Owner’s prior approval, the
Design-Builder shall not make advance payments to subcontractors or
suppliers for materials or equipment, of every tier, for work that
has not been completed or materials or equipment that have not been
delivered and stored at the site.
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§ 5.1.7 Owner shall retain 5% from each approved
Application for Payment. This retainage shall be released
upon final completion of the Work, as more fully set forth in
accordance with Article 9.10 of Exhibit A, Terms and
Conditions.
§ 5.2
Progress Payments – Stipulated
Sum
§ 5.2.1 Applications for Payment where the
Contract Sum is based upon a Stipulated Sum 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.
§ 5.2.2 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 (5%).
Pending final determination of cost to the Owner of Changes in the
Work, amounts not in dispute shall be included as provided in
Section A.7.3.8 of Exhibit A. Terms and
Conditions;
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 5%.
3. Subtract the aggregate of
previous payments made by the Owner; and
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4. Subtract amounts, if any,
for which the Owner has withheld payment from or nullified an
Application for Payment as provided in Section A.9.5 of
Exhibit A. Terms and Conditions.
§ 5.2.3 The progress payment amount determined in
accordance with Section 5.2.2 shall be further modified under
the following circumstances:
1. Add upon Substantial
Completion of Work, a sum sufficient to increase the total payments
to the full amount of the Contract Sum, less retainage and any
other amounts for which Owner has withheld payment under
Section A.9.5 of Exhibit A, Terms and Conditions.
and
2. Add, if final completion of
the Work is thereafter materially delayed through no fault of the
Owner, any additional amounts payable in accordance with
Section A.9.10.3 of Exhibit A. Terms and
Conditions.
§ 5.3
Final Payment
§ 5.3.1 Final payment, constituting the entire
unpaid balance of the Contract Sum, including retainage, shall be
made by the Owner to the Design-Builder not later than 30 days
after the Design-Builder has fully performed the Contract including
the requirements of Section A.9.10 of Exhibit A. Terms
and Conditions has been fully satisfied, except for the
Design-Builder’s responsibility to correct non-conforming
Work discovered after final payment or to satisfy other
requirements, if any, which extend beyond final payment.
ARTICLE 6:
DISPUTE RESOLUTION
§ 6.1 The parties appoint the following
individual to serve as a Neutral pursuant to Section A.4.2.1
of Exhibit A. Terms and Conditions.
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American Arbitration Association –
Construction Industry Division
§ 6.2 If the parities do not resolve their
dispute through mediation pursuant to Section A.4.3 of
Exhibit A. Terms and Conditions, the method of binding dispute
resolution shall be the following:
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Arbitration pursuant to
Section A.4.4 of Exhibit A. Terms and
Conditions
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Litigation in a court of
competent jurisdiction
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Other (specify)
§ 6.3
Arbitration
§ 6.3.1 If arbitration is selected by the parties
as the method of binding dispute resolution, then any claim,
dispute or other matter in question arising out of or related to
this Agreement shall be subject to arbitration as provided in
Section A.4.4. of Exhibit A. Terms and
Conditions.
ARTICLE 7:
MISCELLANEOUS
PROVISIONS
§ 7.1 Design professionals and consultants
engaged by the Design-Builder shall be persons or entities duly
licensed to practice their professions as required in the
jurisdiction where the Project is located and are listed as
follows:
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Name and address
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License Number
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Youssef V. Baddour
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37166
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Beaver Creek, Ohio 45432
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Relationship to Design-Builder
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Other Information
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AMG structural department manager
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§ 7.2 Other design professionals and
consultants, if any, engaged directly by the Owner, their
professions and responsibilities are listed below:
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Name and address
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License Number
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None.
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Relationship to Owner
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Other Information
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None.
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§ 7.3 The Owner’s Designated
Representative is Dr. Gary Kramer
§ 7.3.1 The Owner’s Designated
Representative identified above shall be authorized to act on the
Owner’s behalf with respect to the Project.
§ 7.4 The Design-Builder’s Designated
Representative is Mr. Cornell Gethmann and/or Mr. Alberto
Mendez.
§ 7.4.1 The Design-Builder’s Designated
Representative identified above shall be authorized to act on the
Design-Builder’s behalf with respect to the
Project.
§ 7.5 Neither the Owner’s nor the
Designed-Builder’s Designated Representative shall be changed
without ten (10) days written notice to the other
party.
§ 7.6 Other provisions:
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§ 7.6.1 Where reference is made in this Agreement
to a provision of another Contract Document, the reference refers
to that provision (s) as amended or supplemented by other
provisions of the Contract Documents.
§ 7.6.2 Payments due and unpaid under this
Agreement 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 Monroe, Wisconsin where the Project
is located.
ARTICLE 8:
ENUMERATION OF THE CONTRACT
DOCUMENTS
§ 8.1 The Contract Documents, except for
Modifications issued after the execution of this Agreement, are
enumerated as follows:
§ 8.1.1 The Supplementary and other Conditions of
the Contract, if any, are as follows:
§ 8.1.2 The Specifications are as follows:
[Insert identification if existing as of time of
execution]
§ 8.1.4 The Drawings are as follows: [Insert
identification if existing as of time of execution]
§ 8.1.5 The Addenda, if any, are as
follows:
§ 8.1.6 Exhibit A. Terms and
Conditions
§ 8.1.7 Exhibit B. Process Equipment
List
§ 8.1.8 Exhibit C. Designer-Builder’s
Scope of Work.
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§ 8.1.9 Exhibit D. Determination of the Cost
of the Work (Schedule of Values)
§ 8.1.10 Exhibit E. Insurance, if
applicable.
§ 8.1.11 Exhibit F. Project
Master Schedule
§ 8.1.12 Exhibit G. Permits
§ 8.1.13 Other documents, if any, forming part of
the Contract Documents are as follows:
This Agreement is entered into as of the day and
year first written above and is executed in at least two original
copies, of which one is to be delivered to the Designer-Builder,
and one to the Owner.
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/s/ Gary L. Kramer
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/s/ Alberto Mendez
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BADGER STATE ETHANOL, LLC.
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AMG/GCI, LLC.
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DATE: June 23, 2005
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DATE: June 23, 2005
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/s/ Cornell W. Gethmann
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AMG/GCI, LLC.
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DATE: June 23, 2005
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EXHIBIT A
TERMS AND CONDITIONS
For the following PROJECT:
OWNER,
BADGER STATE ETHANOL, LLC
820 W. 17 th Street
Monroe, Wisconsin 53566
And the DESIGN-BUILDER ,
AMG/GCI, LLC
900 S. 12 th Avenue
Marshalltown, Iowa 50158
TABLE OF ARTICLES
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ARTICLE A.1 GENERAL
PROVISIONS
§ A1.1 BASIC
DEFINITIONS
§ A.1.1.1 THE DESIGN-BUILD
DOCUMENTS
Deleted.
§ A1.1.2 THE CONTRACT
DOCUMENTS
The Contract Documents are identified in
Section 1.1 of the Agreement.
§ A.1.1.3
DESIGN-BUILDER
The Design-Builder is the person lawfully
licensed to practice engineering or an entity lawfully practicing
engineering identified as such in the Agreement and is referenced
to throughout the Contract Documents as if singular in
number. The term “Design-Builder” means the
Design-Builder or the Design-Builder’s authorized
representative.
§ A.1.1.4 THE
WORK
The term “Work” means the design and
construction and other services required by the Contract Documents,
whether completed or partially completed, and includes all other
labor, materials, equipment and services provided or to be provided
by the Design-Builder to fulfill the Design-Builder’s
obligations.
§ A.1.1.5 THE
PROJECT
The Project is the total design and construction
of which the Work performed under the Contract Documents may be the
whole or a part, and which may include design and construction by
the Owner or by separate Contractors.
§ A.1.1.6 THE
DRAWINGS
The Drawings are the graphic and pictorial
portions of the Contract Documents showing the design, location and
dimensions of the Work, generally including plans, elevations,
sections, details, schedules and diagrams.
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§ A.1.1.7 THE
SPECIFICATIONS
The Specifications are that portion of the
Contract Documents consisting of the written requirements for
materials, equipment, systems, standards, workmanship for the Work,
and performance of related services.
§ A.1.1.8 THE PROJECT
MANUAL
The Project Manual is a volume assembled for the
Work, which may include the bidding requirements, sample forms,
conditions of the Contract and Specifications.
§ A.1.1.9 NEUTRAL
The Neutral is the individual appointed by the
parties to decide Claims and disputes pursuant to
Section A.4.2.1.
§ A.1.2 CORRELATION AND INTENT
OF THE CONTRACT DOCUMENTS
§ A.1.2.1 The intent of the Contract Documents is
to include all items necessary for the proper execution and
completion of the Work by the Design-Builder. The Contract
Documents are complementary and what is required by one shall be as
binding as if required by all; performance by the Design-Builder
shall be required only to the extent consistent with the Contract
Documents and reasonably inferable from them as being necessary to
produce the indicated results.
§ A.1.2.2 Organization of the specifications into
divisions, sections and articles, an arrangement of Drawings shall
not control the Design-Builder in dividing the Work among
Subcontractors or in establishing the extent of Work to be
performed by any trade.
§ A.1.2.3 Unless otherwise stated in the Contract
Documents, words which have well-known technical or construction
industry meanings are used in the Contract Documents in accordance
with such recognized meanings.
§ A.1.3 COMPLIANCE WITH
APPLICABLE LAWS
§ A.1.3.1 If the Design-Builder believes that
implementation of any instruction received from the Owner would
cause violation of any applicable law, statute, ordinance, building
code or rules or regulations, the Design-Builder shall notify
the Owner in writing. The Design-Builder shall not be
obligated to perform any act which the Design-Builder believes will
violate any applicable law.
§ A.1.4
CAPITALIZATION
§ A.1.4.1 Terms capitalized in these Terms and
Conditions include (1) those which are specifically defined,
(2) the titles of numbered articles and identified references
to sections in the document, or (3) the titles of other
documents published by the American Institute of
Architects.
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§ A.1.5
INTERPRETATION
§ A.1.5.1 In the interest of brevity the Agreement
frequently omits modifying words such as “all” and
“any” and articles such as “the”
,”and”, “an” but the fact that a modifier
or an article is absent from one statement and appears in
another is not intended to affect the interpretation of either
statements.
§ A.1.6 EXECUTION OF THE
AGREEMENT
§ A.1.6.1 The Contract Documents shall be signed by
the Owner and Design-Builder
§ A.1.6.2 Execution of the Contract by the
Design-Builder is a representation that the Design-Builder has
visited the site, become generally familiar with local conditions
under which the Work is to be performed and correlated personal
observations with requirements of the Contract
Documents.
§ A.1.7 OWNERSHIP AND USE OF
DOCUMENTS AND ELECTRONIC DATA
§ A.1.7.1 The Drawings, Specifications and other
documents, including those in electronic form, prepared by the
Design-Builder or the Design-Builder’s other design
professionals are Instruments of Service through which the Work to
be executed by the Design-Builder is described. The Owner may
retain one record set. Neither the Owner nor any
Subcontractor, Sub-Subcontractor or material or equipment supplier
shall own or claim a copyright in the Instruments of Service, and
unless otherwise indicated the Design-Builder and other design
professionals shall be deemed the authors of them and will retain
all common law, statutory, and other reserved rights, in addition
to the copyrights. All copies of the Instruments of Service,
except the Owner’s record set, shall be returned or suitably
accounted for to the Design-Builder or other design professionals,
on request, upon completion of the Work. The Instruments of
Service are for use solely with respect to this Project. They
are not to be used by the Owner or any Subcontractor,
Sub-Subcontractor or material or equipment supplier for other
projects or for additions to this Project outside the scope of the
Work without specific written consent of the Design-Builder and
other design professionals. The Owner, Subcontractors,
Sub-Subcontractors and materials or equipment suppliers are
authorized to use and reproduce applicable portions of the
Instruments of Service appropriate to and for use in the execution
of their Work under the Contract Documents. All copies made
under this authorization shall bear the statutory copyright notice,
if any, shown on the copied Instrument of Service Submittal or
distribution to meet official regulatory requirements or for other
purposes in connection with this Project is not to be construed as
publication in derogation of the Design-Builder or other design
professionals’ copyrights or other reserved
rights.
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§ A.1.7.2 The Design-Builder and the
Design-Builder’s consultants shall be deemed the authors and
owners of their respective Instruments of Service and shall retain
all common law, statutory and other reserved rights, including
copyrights. Upon execution of this Agreement, the
Design-Builder grants to the Owner a nonexclusive license to
reproduce the Instruments of Service solely for purposes of
constructing, completing, using and maintaining the Project,
provided that the Owner shall comply with all obligations,
including prompt payment of all sums when due, under this
Agreement. The Design-Builder shall obtain similar
nonexclusive licenses from the Design-Builder’s consultants
consistent with this Agreement. Except as provided in
Sections A.1.7.4 and A.1.7.5, termination of this Agreement prior
to completion of the Work to be performed under this Agreement
shall terminate this license.
§ A.1.7.3 Prior to the Design-Builder providing to
the Owner any Instrument of Service in electronic form or the Owner
providing the Design-Builder any electronic data for incorporation
into the Instrument of Service, the Owner and the Design-Builder
shall by separate written agreement set forth the specific
conditions governing the format of such Instruments of Service or
electronic data, including any special limitations or licenses not
otherwise provided in this Agreement and, if appropriate,
adjustments in the Contract Sum and Contract Time.
§ A.1.7.4 In the event that this Agreement is
terminated prior to completion of the Work, the license provided in
Section A.1.7.2 shall terminate, the Owner shall not make
further reproductions of Instruments of Service and the Owner shall
return to the Design-Builder within seven (7) days of
termination all originals and reproductions in the Owner’s
possession or control, except as follows:
.1
In the event the Owner terminates
the Design-Builder for cause pursuant to Section A.14.2, the
foregoing license shall be deemed terminated and replaced by a
second, nonexclusive license permitting the Owner to authorize
other appropriately credentialed design professionals to reproduce
and, where permitted by law, to make changes, corrections or
additions to the Instruments of Service solely for purposes of
completing, constructing, using and maintaining the
Project;
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In the event the Design-Builder
terminates this Agreement with the Owner for cause pursuant to
Section A.14.1, the Design-Builder shall assign the license to
the Owner in accordance with the provisions of Section a.1.7.5
of this Agreement.
§ A.1.7.5 If the Agreement is terminated by
Design-Builder in accordance with A.1.7.4.2 or for Owner’s
convenience, , the Design-Builder, upon Owner’s request,
shall convey and shall require its design professionals to convey
to the Owner a nonexclusive license to use the
Design-Builder’s Instruments of Service
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for the completion, use and maintenance of the
Project, conditioned upon (1) payment to the Design-Builder of
all amounts due to the Design-Builder, and (2) the
Design-Builder’s receipt of the Owner’s written notice
to the Design-Builder of the Owner’s assumption of the
Design-Builder’s duties and obligations under this Agreement;
or if the Owner fails to provide such written notice,
(1) payment to the Design-Builder of all amounts due to the
Design-Builder and the Design-Builder’s design professionals,
and (2) the Design-Builder’s receipt of the
Owner’s written assignment to indemnify and hold harmless the
Design-Builder and its design professionals from all claims, as
well as any expense, including legal fees, which the Design-Builder
and its design professionals shall thereafter incur by reason of
the Owner’s use of such Instrument of Service The
Design-Builder shall incorporate the requirements of this
Section A.1.7.5 in all agreements with its design
professionals.
§ A.1.7.6 Except for the licenses granted in
Section A.1.7.2, A.1.7.4 and A.1.7.5, no other license or
right shall be deemed granted or implied under this
Agreement. The Owner shall not assign, delegate, sublicense,
pledge or otherwise transfer any license granted herein to another
party without the prior written agreement of the
Design-Builder. However, subject to its obligations under
this Contract, the Design-Builder is permitted to authorize the
Subcontractors, Sub-Subcontractors and material or equipment
suppliers to reproduce applicable portions of the Instrument of
Service for the following purposes: performing services;
executing Work; and coordinating services with those of the
Design-Builder, the Design-Builder’s consultants, and the
Design-Builder’s other design professionals and
consultants. Submission or distribution of Instruments of
Service to meet official regulatory requirements or for similar
purposes in connection with the Project is not to be construed as
publication in derogation of the reserved rights of the respective
copyright owners. The Owner shall not use the Instruments of
Service for future additions or alterations to this Project or for
other projects, unless the Owner obtains the prior written
agreement of the Design-Builder and the Design-Builder’s
consultants. Any unauthorized use of the Instruments of
Service shall be at the Owner’s sole risk and without
liability to the Design-Builder and the Design-Builder’s
consultants.
ARTICLE A.2 OWNER
§ A.2.1 GENERAL
§ A.2.1.1 The Owner is the person or entity
identified as such in the Agreement and is referred to throughout
the Contract Documents as if singular in number. The term
“Owner” means the Owner or the Owner’s authorized
representative. The Owner shall designate in writing a
representative who shall have express authority to bind the Owner
with respect to all Project matters requiring the
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Owner’s approval or authorization.
The Owner may also delegate in writing certain responsibilities of
the Owner to the Design-Builder or other design
professionals. The Owner shall render decisions in a timely
manner and in accordance with the Design-Builder’s
schedule submitted to the Owner.
§ A.2.1.2 The Owner shall furnish to the
Design-Builder within 15 days after receipt of a written request
information necessary and relevant for the Design-Builder to
evaluate, give notice of or enforce mechanic’s lien
rights. Such information shall include a correct statement of
the record legal title to the property on which the Project is
located, usually referred to as the site, and the Owner’s
interest therein.
§ A.2.1.3
§ A.2.2 INFORMATION AND SERVICES
REQUIRED OF THE OWNER
§A.2.2.1 The Owner shall be responsible to provide
surveys, if not required by the Contract Documents to be provided
by the Design-Builder, describing physical characteristics, legal
limitations, and utility locations for the site of the Project, and
a written legal description of the site. The surveys and
legal information shall include, as applicable, grades and lines of
streets, alleys, pavements, and adjoining property and structures;
adjacent drainage; rights-of-way, restrictions, easements,
encroachments, zoning, deed restriction, boundaries, and contours
of the site; locations, dimensions, and necessary data pertaining
to existing buildings, other improvements and trees; and
information concerning available utility services and lines, both
public and private, above an below grade, including inverts and
depths. All the information on the survey shall be referenced
to a Project benchmark.
§ A.2.2.2 The Owner shall provide, to the extent
available to the Owner and if not required by the Contract Document
to be provided by the Design-Builder, the results and reports of
prior tests, inspections or investigations conducted for the
Project, involving structural or mechanical systems; chemical, air
and water pollution; hazardous materials or environmental and
subsurface conditions; and information regarding the presence of
pollutants at the Project site.
§ A.2.2.3 The Design-Builder shall cooperate with
the Owner in securing building and other permits, licenses and
inspections for which Owner is required by the Contract Documents
to obtain. The Design-Builder shall not be required to pay
the fees for such Owner required permits, licenses and
inspections.
§ A.2.2.4 The services, information, surveys and
reports required to be provided by the Owner under
Section A.2.2 shall be furnished at the Owner’s expense,
and the Design-Builder shall be entitled to rely upon the accuracy
and completeness thereof, except as otherwise specifically provided
in the Contract
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Documents or to the extent the Owner advises the
Design-Builder to the contrary in writing.
§ A.2.2.5 If the Owner observes or otherwise
becomes aware of a fault or defect in the Work or non-conformity
with the Contract Documents, the Owner shall give prompt written
notice thereof to the Design-Builder.
§ A.2.2.6 The Owner shall, at the request of the
Design-Builder, prior to execution of the Agreement and promptly
upon request thereafter, furnish to the Design-Builder reasonable
and non-confidential evidence that financial arrangements have been
made to fulfill the Owner’s obligations under this
Agreement. The Owner shall promptly make available to the
Design-Builder non-confidential financial information of the Owner
which affects this Agreement and which becomes available to the
Owner subsequent to execution of this Agreement.
§ A.2.2.7 The Owner shall communicate through the
Design-Builder with persons or entities employed or retained by the
Design-Builder, unless otherwise directed by the
Design-Builder.
§ A.2.2.8 The Owner shall furnish the services of
geotechnical engineers or other consultants, if not required by the
Contract Documents to be provided by the Design-Builder, for
subsoil, air and water conditions when such services are deemed
reasonably necessary by the Design-Builder to properly carry out
the design services, if any, to be provided by the
Design-Builder’s consultants. 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 corrosions and
resistivity tests, and necessary operations for anticipating
subsoil conditions. The services of geotechnical engineer(s)
or other consultants shall include preparation and submission of
all appropriate reports and professional
recommendations.
§ A.2.2.9 The Owner shall promptly obtain
easements, zoning variances and legal authorizations regarding site
utilization where essential to the execution of the Owner’s
program.
§ A.2.3 OWNER REVIEW AND
INSPECTION
§ A.2.3.1 The Owner may visit the site at intervals
appropriate to the stage of the Design-Builder’s operations
to become generally familiar with and to keep informed about the
progress and quality of the portion of the Work completed.
However, the Owner shall not be required to make exhaustive or
continuous on-site inspections to check the quality or quantity of
the Work. The Owner shall neither have control over or charge
of, nor be responsible for, the construction means, methods,
techniques, sequences or procedures, or for the safety precautions
and programs in connection with the Work, since these are solely
the
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Design-Builder’s rights and
responsibilities under the Contract Documents, except as provided
in A.3.3.1.
§ A.2.3.2 The Owner shall not be responsible for
the Design-Builder’s failure to perform the Work in
accordance with the requirements of the Contract Documents.
The Owner shall not have control over or be in charge of and will
not be responsible for acts or omissions of the Design-Builder,
Subcontractors, Sun-Subcontractors or their agents or employees, or
any other persons or entities performing portions of the Work for
the Design-Builder.
§ A.2.3.3 The Owner may reject Work that does not
conform to the Contract Documents. Whenever the Owner
considers it necessary or advisable, the Owner shall have authority
to require inspection or testing of the Work in accordance with
Section A.13.5.2, whether or not such Work is fabricated,
installed or completed. However, neither this authority of
the Owner nor a decision made in good faith either to exercise or
not to exercise such authority shall give rise to a duty or
responsibility of the Owner to the Design-Builder, Subcontractors,
Sub-Subcontractors material or equipment suppliers, their agents or
employees, or other persons or entities performing portions of the
Work.
§ A.2.3.4 The Owner may appoint an on-site project
representative to observe the Work and to have such other
responsibilities as the Owner and the Design-Builder agree to in
writing.
§ A.2.3.5 The Owner shall review and approve or
take other appropriate action upon the Design-Builder’s
submittals required by the Contract Documents, but only for the
limited purpose of checking for conformance with information given
and the design concept expressed in the Contract Documents.
The Owner’s action shall be taken with such reasonable
promptness as to cause no delay in the Work or in the activities of
the Design-Builder or separate Contractors. Review of such
submittals is not conducted for the purpose of determining the
accuracy and completeness of other details, such as dimensions and
quantities, or for substantiating instructions for installation or
performance of equipment or systems, all of which remain the
responsibility of the Design-Builder as required by the Contract
Documents.
§ A.2.3.6 The Owner’s review and approval of
the Design-Builder’s submittal required by the Contract
Documents shall not relieve the Design-Builder of responsibility
for compliance with the Contract Documents unless (a) the
Design-Builder has notified the Owner of the deviation prior to
approval by the Owner, or (b) the Owner has approved a change
in work reflecting any deviations from the requirement of the
Contract Documents.
§ A.2.3.7 The Owner shall conduct inspections to
determine the date or dates of Mechanical Completion, Substantial
Completion and the date of final completion.
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§ A.2.3.8 The Owner shall issue a final Certificate
for Payment upon compliance with the requirements of the Contract
Documents.
§ A.2.4 OWNER’S RIGHT TO
STOP WORK
§ A.2.4.1 If the Design-Builder fails to correct
Work which is not in accordance with the requirements of the
Contract Documents as required by Section A.12.2 or
persistently fails to carry out Work in accordance with the
Contract Documents, the Owner may issue a written order to the
Design-Builder to stop the Work, or any portion thereof, until the
cause for such order has been eliminated; however, the right of the
Owner to stop the Work shall not give rise to a duty on the part of
the Owner to exercise this right for the benefit of the
Design-Builder or any other person or entity, except to the extent
required by Section A.6.1.3.
§ A.2.5 OWNER’S RIGHT TO
CARRY OUT THE WORK
§ A.2.5.1 If the Design-Builder defaults or
neglects to carry out the Work in accordance with the Contract
Documents and fails within a seven-day period after receipt of
written notice from the Owner to commence and continue correction
of such default or neglect with diligence and promptness, the Owner
may after such seven (7) day period give the Design-Builder a
second written notice to correct such deficiencies within a three
(3) day period. If the Design-Builder within such three
(3) day period after receipt of such second notice fails to
commence and continue to correct and deficiencies, the Owner may,
without prejudice to other remedies the Owner may have, correct
such deficiencies. In such case, an appropriate Change Order
shall be issued deducting from payments then or thereafter due the
Design-Builder the reasonable cost of correcting such
deficiencies. If payments due to the Design-Builder are not
sufficient to cover such amounts, the Design-Builder shall pay the
difference to the Owner.
ARTICLE A.3
DESIGN-BUILDER
§ A.3.1 GENERAL
§ A.3.1.1 The Design-Builder is the person or
entity identified as such in the Agreement and is referred to
throughout the Contract Documents as if singular in number.
The term “Design-Builder” means the Design-Builder or
the Design-Builder’s authorized representative. The
Design-Builder’s representative is authorized to act on the
Design-Builder’s behalf with respect to the
Project.
§ A.3.1.2 The Design-Builder shall perform the Work
in accordance with the Contract Documents.
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§ A.3.1.3 The Design-Builder shall not be relieved
of obligations to perform the Work in accordance with the Contract
Documents either by activities or duties of the Owner in the
Owner’s administration of the Contract, or by tests,
inspections or approvals required or performed by persons other
than the Design-Builder.
§ A.3.2 REVIEW OF CONTRACT
DOCUMENTS AND FIELD CONDITIONS BY DESIGN-BUILDER
§ A.3.2.1 Since the Contract Documents are
complementary, before starting each portion of the Work, the
Design-Builder shall carefully study and compare the various
Drawings and other Contract Documents relative to
Section A.2.2.1, shall take field measurements of any existing
conditions related to that portion of the Work and shall observe
any conditions at the site affecting it. These obligations
are for the purpose of facilitating construction by the Contract
and discovering errors, omissions, or inconsistencies in the
Contract Documents. Any errors, inconsistencies or omissions
discovered by the Design-Builder shall be reported promptly to the
Owner.
§ A.3.2.2 The Design-Builder is required to
ascertain that the Contract Documents are in accordance with
applicable laws, statutes, ordinances, building codes and
rules and regulations.
§ A.3.2.3 The Design-Builder shall be liable to the
Owner for damages resulting from errors, inconsistencies or
omissions in the Contract Documents.
§ A.3.3 SUPERVISION AND
CONSTRUCTION PROCEDURES
§ A.3.3.1 The Design-Builder shall supervise and
direct the Work, using the Design-Builder’s best skill and
attention. The Design-Builder shall be solely responsible for
and have control over construction means, methods, techniques,
sequences and procedures and for coordinating all portions of the
Work under the Contract.
§ A.3.3.2 The Design-Builder shall be responsible
to the Owner for acts and omissions of the Design-Builder’s
employees, design professionals, engineers architects and other
professional consultants, Subcontractors, Sub-Subcontractors,
and their respective agents and employees, and other persons or
entities performing portions of the Work for or on behalf of the
Design-Builder or any of its Subcontractors, Sub-Subcontractors or
professional consultants.
§ A.3.3.3 The Design-Builder shall be responsible
for inspection of portions of Work already performed to determine
that such portions are in proper condition to receive subsequent
Work.
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§ A.3.4 LABOR AND
MATERIALS
§ A.3.4.1 Unless otherwise provided in the Contract
Documents, the Design-Builder shall provide and pay for labor,
materials, equipment, tools, construction equipment and machinery,
water, heat utilities, transportation, and other facilities and
services necessary for proper execution and completion of the Work,
whether temporary or permanent and whether or not incorporated or
to be incorporated in the Work.
§ A.3.4.2 The Design-Builder may make substitutions
only with the consent of the Owner, after evaluation by the Owner
and in accordance with a Change Order.
§ A.3.4.3 The Design-Builder shall enforce strict
discipline and good order among the Design-Builder’s
employees and other person carrying out the Contract. The
Design-Builder shall not permit employment of unfit persons or
persons not skilled in tasks assigned to them.
§ A.3.5
WARRANTY
§ A.3.5.1 The Design-Builder warrants to the Owner
that materials and equipment furnished under the Contract Documents
will be of good quality and new unless otherwise required or
permitted by the Contract Documents, that the Work will be free
from defects not inherent in the quality required or permitted by
law or otherwise, and that the Work will conform to the
requirements of the Contract Documents. Work not conforming
to these requirements, including substitutions not properly
approved and authorized, may be considered defective. The
Design-Builder’s warranty excludes remedy for damage or
defect caused by abuse, modifications not executed by the
Design-Builder, improper or insufficient maintenance, improper
operation, or normal wear and tear usage. If required by the
Owner, the Design-Builder shall furnish satisfactory evidence as to
the kind and quality of materials and equipment.
§ A.3.5.2 Design/Builder shall assign to the Owner all
manufacturers’ and suppliers’ warranties, express or
implied, respecting any part of the Work which Design-Builder
receives. The assignments, copies of all warranties and all product
operation manuals for proper use and maintenance of equipment shall
be conveyed to the Owner prior to Final Payment for the
Work.
§ A.3.5.3 Owner has entered into a Services and Guarantee
Agreement with CVP, LLC, which document contains certain
performance guarantees of the completed Work. Nothing in that
Services and Guarantee Agreement shall limit Design-Builder’s
obligations under the Contract Documents with respect to the design
and completion of the Work in accordance with the Contract
Documents.
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§ A.3.6 TAXES
§ A.3.6.1 The Project is exempt from sales,
consumer, use and similar taxes and the Owner will provide a Tax
Exemption Certificate. The Design-Builder agrees to take such
reasonable actions requested by the Owner to assist the Owner with
maintaining such tax exemption status, including providing a
“pass-through” letter to the subcontractors of the
Design-Builder. These tax costs have been removed from the
bid proposal per the request of the Owner and the Design-Builder
shall not be responsible for these costs unless recompensed by the
Owner.
§ A.3.7 PERMITS, FEES AND
NOTICES
§ A.3.7.1 Design/Builder shall secure and pay for
the building permit and other permits and governmental fees,
licenses and inspections necessary for proper execution and
completion of the Work. Attached as Exhibit G to the Agreement
is a list of all permits, fees, licenses and inspections that are
required for the proper execution and completion of the
Work.
§ A.3.7.2 The Design-Builder shall comply with and
give notices required by laws, ordinances, codes, rules,
regulations and lawful orders of public authorities applicable to
performance of the Work.
§ A.3.7.3 It is the Design-Builder’s
responsibility to ascertain that the Contract Documents, including
the Drawings and Specifications, are in accordance with applicable
laws, statutes, ordinances, building codes, and rules and
regulations.
§ A.3.8
ALLOWANCES
§ A.3.8.1 The Design-Builder shall include in the
Contract Sum all allowances stated in the Contract Documents.
Items covered by allowances shall be supplied for such amounts and
by such persons or entities as the Owner may direct, but the
Design-Builder shall not be required to employ persons or entities
to which the Design-Builder has reasonable objection.
§ A.3.8.2 Unless otherwise provided in the Contract
Documents:
.1
allowances shall cover the cost to
the Design-Builder of materials and equipment delivered at the site
and all required taxes, less applicable trade discounts;
.2
Design-Builder’s costs for
unloading and handling at the site, labor, installation costs,
overhead, profit and other expenses contemplated for stated
allowance amounts shall be included in the Contract Sum but not in
the allowances; and
26
.3
whenever costs are more than or less
than allowances, the Contract Sum shall be adjusted accordingly by
Change Order. The amount of the Change Order shall reflect
(1) the difference between actual costs and the allowances
under Section A.3.8.2.1 and (2) changes in
Design-Builder’s costs under
Section A.3.8.2.2.
§ A.3.8.3 Materials and equipment under an
allowance shall be selected by the Owner in sufficient time to
avoid delay in the Work.
§ A.3.9
SUPERINTENDENT
§ A.3.9.1 The Design-Builder shall employ a
competent superintendent and necessary assistants who shall be in
attendance at the Project site during performance of the
Work. The superintendent shall represent the Design-Builder,
and communications given to the superintendent shall be as binding
as if given to the Design-Builder. Important communications
shall be confirmed in writing. Other communications shall be
similarly confirmed on written request in each case.
§ A.3.10 DESIGN-BUILDER’S
DESIGN CONSTRUCTION SCHEDULES
§ A.3.10.1 The Design-Builder, promptly after being
awarded the Contract, shall prepare and submit for the
Owner’s information the Design-Builder’s design and
construction schedule for the Work. The
schedule shall not exceed time limits current under the
Contract Documents, shall be revised at appropriate intervals as
required by the conditions of the Work and Project, shall be
related to the entire Project to the extent required by the
Contract Documents, and shall provide for expeditions and
practicable execution of the Work. See
Exhibit F
§ A.3.10.2 The construction schedule shall
indicate proposed Subcontractors, activity sequences and durations,
milestone dates for receipt and approval of pertinent information,
schedule of shop drawings and samples, procurement and deliver
or materials or equipment requiring long-lead time, and the
Owner’s occupancy requirements showing portions of the
Project having occupancy priority. The Design-Builder shall
keep current, for the Owner’s approval, the schedule of
submittals which is coordinated with the Design-Builder’s
construction schedule and allows the Owner reasonable time to
review submittals.
§ A.3.10.3 The Design-Builder shall perform the Work
in accordance with most recent schedules submitted to the
Owner.
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§ A.3.11 DOCUMENTS AND SAMPLES
AT THE SITE
§ A.3.11.1 The Design-Builder shall maintain at the
site for the Owner one record copy of the Drawings, Specifications,
Addenda, Change Orders and other Modifications, in good order and
marked currently to record field changes and selections made during
construction, and one record copy of approved Shop Drawings,
Product Data, Samples and similar required submittals. These
shall be available to the Owner and shall be delivered to the Owner
upon completion of the Work.
§ A.3.12 SHOP DRAWINGS, PRODUCT
DATA AND SAMPLES
§ A.3.12.1 Shop Drawings, are drawings, diagrams,
schedules and other data specifically prepared for the Work by the
Design-Builder or a Subcontractor, manufacturer, supplier or
distributor to illustrate some portion of the Work.
§ A.3.12.2 Product Data are illustrations, standard
schedules, performance charts, instructions, brochures, diagrams,
and other information furnished by the Design-Builder to illustrate
materials or equipment for some portion of the Work.
§ A.3.12.3 Samples are physical examples, which
illustrate materials, equipment or workmanship and establish
standards by which the Work will be judged.
§ A.3.12.4 Shop Drawings, Product Data, Samples and
similar submittals are not Contract Documents. The purpose of
their submittals is to demonstrate for those portions of the Work
for which submittals are required by the Contract Documents the way
by which the Design-Builder proposes to conform to the information
given and the design concept expressed in the Contract
Documents. Review by the Owner is subject to the limitations
of Sections A.2.3.5 and A.3.13.1. Informational submittals
upon which the Owner is not expected to take responsive action may
be so identified in the Contract Documents. Submittals which
are not required by the Contract Documents may be returned by the
Owner without action.
§ A.3.12.5 The Design-Builder shall review for
compliance with the Contract Documents, approve and submit to the
Owner Conceptual Drawings, Product Data, Samples and similar
submittals required by the Contract Documents with reasonable
promptness and in such sequence as to cause no delay in the Work or
in the activities of the Owner or of separate Contractors.
Submittals which are not marked as reviewed for compliance with the
Contract Documents and approved by the Design-Builder may be
returned by the Owner without action.
§ A.3.12.6 By approving and submitting Shop
Drawings, Product Data, Samples and similar submittals, the
Design-Builder represents that the Design-Builder has determined
and verified materials, field measurements and field construction
criteria related thereto, or will do so, and has checked and
coordinated the information contained within such submittals with
the requirements of the Work and of the Contract
Documents.
28
§ A.3.12.7 The Design-Builder shall perform no
portion of the Work for which the Contract Documents require
submittal and review of Shop Drawings, Product Data, Samples or
similar submittals until the respective submittal has been approved
by the Owner.
§ A.3.12.8 The Work shall be in accordance with
approved submittals except that the Design-Builder shall not be
relieved of responsibility for deviations from requirements of the
Contract Documents by the Owner’s approval of Shop Drawings,
Product Data, Samples or similar submittals unless the
Design-Builder has specifically informed the Owner in writing of
such deviation at the time of submittal and (1) the Owner has
given written approval to the specific deviation as a minor change
in the Work, or (2) a Change Order or Construction Change
Directive has been issued authorizing the deviation. The
Design-Builder shall not be relieved of responsibility for errors
or omissions in Shop Drawings, Product Data, Samples or similar
submittals by the Owner’s approval thereof.
§ A.3.12.9 The Design-Builder shall direct specific
attention, in writing or on resubmitted Shop Drawings, Product
Data, Samples or similar submittals, to revisions other than those
requested by the Owner on previous submittals. In the absence
of such written notice the Owner’s approval of a resubmission
shall not apply to such revisions.
§ A.3.13. PROFESSIONAL SERVICES
PROVIDED BY DESIGN-BUILDER
§ A.3.13.1 The Design-Builder is responsible for the
creation of the Drawings and Specifications and providing all
professional services for the Project, including the architectural,
structural and engineering portions of the Project, so that the
completed Work will achieve the performance and capacity
requirements as required by Contract Documents. The Design-Builder
shall cause its professional services to be provided by a properly
licensed design professional, whose signature and seal shall appear
on all drawings, calculations, specifications, certifications, Shop
Drawings and other submittals prepared by such professional.
Shop Drawings and other submittals related to the Work designed by
such professional, if prepared by others, shall bear such
professional’s written approval when submitted to the
Owner.
§ A.3.13.2 The Design-Builder shall obtain from each
of the Design-Builder’s and Subcontractor’s
professionals and shall deliver to the Owner certifications with
respect to the documents and services provided by such
professionals (a) that the documents or services to which such
certifications relate (i) are consistent with the criteria
provided by the Owner (ii) comply with applicable professional
practice standards, and (iii) comply with applicable laws,
ordinances, codes, rules and regulations governing the design
of the Project, and (b) that the Owner and its design
professionals shall be entitled to rely upon the representations
and statements contained in such certifications. Such certificates
shall not relieve Design-Builder of its obligations under the
Contract Documents.
29
§ A.3.13.3 If the Owner requests the
Design-Builder’s design professionals to execute certificates
other than those required by Section A.3.13.2, the proposed
language of such certificates shall be submitted to such design
professionals for review and negotiation at least 14 days prior to
the requested dates of execution. Such design professionals
shall not be required to execute certificates that would require
knowledge, services or responsibilities beyond the scope of their
services. !
§ A.3.14 USE OF
SITE
§ A.3.14.1 The Design-Builder shall confine
operations at the site to areas permitted by law, ordinances,
permits and the Contract Documents and shall not unreasonably
encumber the site with materials or equipment.
§ A.3.15 CUTTING AND
PATCHING
§ A.3.15.1 The Design-Builder shall be responsible
for cutting, fitting or patching required to complete the Work or
to make its parts fit together properly.
§ A.3.15.2 The Design-Builder shall not damage or
endanger a portion of the Work or fully or partially completed
construction of the Owner or separate Contractors by cutting,
patching or otherwise altering such construction or by
excavation. The Design-Builder shall not cut or otherwise
alter such construction by the Owner or a separate Contractor
except with written consent of the Owner and of such separate
Contractor, such consent shall not be unreasonably withheld.
The Design-Builder shall not unreasonably withhold from the Owner
or a separate Contractor the Design-Bui
