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EXHIBIT 10.3
CONTRACTUAL AMENDMENT 2.0
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This Contractual Amendment is made the 18TH
day of MARCH in the year 2005, and
changes the Agreement between Pacific
Ethanol, Inc. (Owner) and W.M. Lyles Co.
(Design-Builder) for services in connection
with the PROJECT (Pacific Ethanol
Plant - Construction; Ethanol Production at
the Madera Sites)
By the authorized signatures below, the
Owner and Design-Builder agree to amend
the Agreement previously dated on the 7th
day of July in the year 2003 and
Amendment 1.0 dated 10th day of May 2004
without invalidating any Articles of
the Agreement or the terms or conditions
thereof.
By all rights and requirements, Article
3.0, Paragraph 3.2 shall read as
follows:
ARTICLE 3 - DESIGN-BUILDER'S
RESPONSIBILITIES
3.2 GUARANTEED MAXIUM PRICE (GMP) SHALL BE
MODIFIED TO
3.2 LUMP SUM / GUARANTEED MAXIUM PRICE
(GMP)
3.2.1 GMP PROPOSAL At such time as the
Owner and the Design-Builder jointly
agree, the Design-Builder shall submit a
GMP Proposal to the Owner. The GMP
shall be the sum of the estimated
Design-Builder's Cost of the work including
the Design-Builder's Fee as defined in
Article 7 and outlined in any Contractual
Amendment(s). The GMP is subject to
modification as provided in Article 9.
3.2.1.1 The Design-Build Documents shall be
a minimum of sixty (60)-percent
complete at the time the GMP Proposal is
submitted to the Owner. The
Design-Builder shall provide in the GMP for
further development of the
Design-Build Documents consistent with the
Owner's Program. Such further
development does not include changes in
scope, systems, kinds and quality of
materials, finishes or equipment, all of
which if required, shall be
incorporated by Change Order.
3.2.2 BASIS OF LUMP SUM / GUARANTEED
MAXIMUM PRICE The Design-Builder shall
include in Amendment(s) the GMP Proposal
with a written statement of the scope
of work and basis, which shall include:
.1 a list of the drawings and specifications, including all
addenda, which were used in preparation of the GMP Proposal;
.2 a list of the assumptions and clarifications made by the
Design-Builder in the preparation of the GMP Proposal to supplement
the
information contained in the drawings and specifications;
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.3 the Date of Substantial Completion and/or the Date of Final
Completion upon which the proposed GMP is based, and the Schedule
of
Work upon which the Date of Substantial Completion and/or the Date
of
Final Completion is based;
.4 a schedule of applicable alternate prices, unit prices and
time and material prices if necessary;
.5 Additional Services if any;
.6 the time limit for acceptance of the GMP proposal;
.7 a statement of any work to be self-performed by the
Design-Builder; and
.8 a statement identifying all patented or copyrighted
materials, methods or systems selected by the Design-Builder
and
incorporated in the Work that are likely to require the payment
of
royalties or license fees.
3.2.3 REVIEW AND ADJUSTMENT TO GMP PROPOSAL
The Design-Builder shall meet with
the Owner to review the GMP Proposal. In
the event that the Owner has any
comments relative to the GMP Proposal, or
finds any inconsistencies or
inaccuracies in the information presented,
it shall give prompt written notice
of such comments or findings to the
Design-Builder, who shall make appropriate
adjustments to the GMP, its basis or
both.
3.2.4 ACCEPTANCE OF GMP PROPOSAL Upon
acceptance by the Owner of the GMP
Proposal, as may be amended by the
Design-Builder in accordance with
Subparagraph 3.2.3, the GMP and its basis
shall be set forth in Amendment(s).
The GMP and the Date of Substantial
Completion and/or the Date of Final
Completion shall be subject to modification
in Article 9.
3.2.5 FAILURE TO ACCEPT THE GMP PROPOSAL
Unless the Owner accepts the GMP
Proposal in writing on or before the date
specified in the GMP Proposal for such
acceptance and so notifies the
Design-Builder, the GMP Proposal shall not be
effective. If the Owner fails to accept the
GMP Proposal, or rejects the GMP
Proposal, the Owner shall have the right
to:
.1 Suggest modifications to the GMP Proposal. If such
modifications are accepted in writing by Design-Builder, the
GMP
Proposal shall be deemed accepted in accordance with
Subparagraph
3.2.4;
.2 Direct the Design-Builder to proceed on the basis of
reimbursement as provided in Articles 7 and 9 without a GMP, in
which
case all references in this Agreement to the GMP shall not be
applicable; or
.3 Terminate the Agreement for convenience in accordance with
Article 11 .
In the absence of a GMP the parties may
establish a Date of Substantial
Completion and/or a Date of Final
Completion.
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3.2.6 PRE-GMP WORK Prior to the Owner's
acceptance of the GMP Proposal, the
Design Builder shall incur cost that will
be reimbursed a
