<PAGE>
EXHIBIT 10.1
THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA
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AGC DOCUMENT NO. 410
STANDARD FORM OF DESIGN-BUILD
AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER AND DESIGN-BUILDER
(WHERE THE BASIS OF PAYMENT IS THE COST OF THE WORK
PLUS A FEE WITH A GUARANTEED MAXIMUM PRICE)
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THIS STANDARD FORM AGREEMENT WAS DEVELOPED WITH THE ADVISE AND
COOPERATION OF THE AGC PRIVATE INDUSTRY
ADVISORY COUNCIL, A NUMBER OF FORTUNE
500 OWNERS' DESIGN AND CONSTRUCTION
MANAGERS WHO HAVE BEEN MEETING WITH AGC
CONTRACTORS TO DISCUSS ISSUES OF MUTUAL
CONCERN. AGC GRATEFULLY ACKNOWLEDGES THE
CONTRIBUTIONS OF THESE OWNERS' STAFF WHO
PARTICIPATED IN THIS EFFORT TO PRODUCE
A BASIC AGREEMENT FOR CONSTRUCTION.
TABLE OF ARTICLES
-----------------
1.
AGREEMENT
2.
GENERAL PROVISIONS
3.
DESIGN-BUILDER'S RESPONSIBILITIES
4.
OWNER'S RESPONSIBILITIES
5.
SUBCONTRACTS
6.
TIME
7.
COMPENSATION
8. COST
OF THE WORK
9.
CHANGES IN THE WORK
10. PAYMENT
FOR CONSTRUCTION PHASE SERVICES
11. INDEMNITY,
INSURANCE, BONDS, AND WAIVER OF SUBROGATION
12. SUSPENSION
AND TERMINATION OF THE AGREEMENT AND OWNER'S
RIGHT TO PERFORM DESIGN-BUILDER'S RESPONSIBILITIES
13. DISPUTE
RESOLUTION
14.
MISCELLANEOUS PROVISIONS
15. EXISTING
CONTRACT DOCUMENTS
AMENDMENT NO. I
Owners Program
AMENDMENT NO. 2
Technology Transfer Agreement between Owner, Engineer and
Design-Builder
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This Agreement has important legal
and insurance consequences. Consultation
with an attorney and insurance
consultant is encouraged with respect to its
completion or modification.
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AGC DOCUMENT NO.410 o STANDARD FORM OF
DESIGN-BUILD AGREEMENT AND GENERAL
CONDITIONS BETWEEN OWNER AND DESIGN-BUILDER
(Where the Basis of Payment is the
Cost of the Work Plus a Fee with a
Guaranteed Maximum Price)
2001 The Associated General Contractors of
America
<PAGE>
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AGC DOCUMENT NO. 410
STANDARD FORM OF DESIGN-BUILD
AGREEMENT AND GENERAL CONDITIONS
BETWEEN OWNER.AND DESIGN-BUILDER
(Where the Basis of Payment is the Cost of the Work
Plus A FEE with a Guaranteed Maximum Price)
--------------------------------------------------------------------------------
ARTICLE 1
AGREEMENT
This Agreement is made
the............7TH..............day
of...........JULY..............in the
YEAR......2003, by and between the
OWNER
PACIFIC ETHANOL, INC.
440 W. FALLBROOK
SUITE 210
FRESNO, CA 93711
and the
DESIGN-BUILDER
W.M. LYLES CO.
(A CALIFORNIA CORPORATION)
P.O. BOX 4377
FRESNO, CA 93744-4377
for services in connection with the
following
PROJECT
ETHANOL PLANT - CONSTRUCTION
ETHANOL PRODUCTION AT THE MADERA SITE
Notice to the parties shall be given at the above addresses.
<PAGE>
ARTICLE 2 - GENERAL PROVISIONS
2.1 TEAM RELATIONSHIP THE OWNER AND THE
Design-Builder AGREE TO PROCEED WITH THE
Project ON the basis of trust, good faith
and fair dealing and shall take all
actions reasonably necessary to perform
THIS AGREEMENT IN AN ECONOMICAL and
timely MANNER, including consideration OF
DESIGN MODIFICATIONS AND alternative
materials or equipment that will permit the
Work to be constructed within the
Guaranteed Maximum Price (GMP) AND by THE
DATES OF Substantial COMPLETION AND
Final Completion AS established by
Amendment No. 1. The Design-Builder agrees to
procure, as permitted by the law of the
state where the project is located, the
design phase services and furnish
construction phase services as set forth
below.
2.1.1 The Design-Builder represents that it
is an independent contractor and
that it is familiar with the type of work
it is undertaking.
2.1.2 Neither the Design-Builder nor any of
its agents or employees shall act on
behalf of or in the name of the Owner
unless authorized in writing by the
Owner's Representative.
2.2 ENGINEER Engineering services shall be
procured from licensed, independent
design professionals retained by the
Design-Builder with consultation from Owner
as permitted by the law of the state where
the Project is located. The standard
of care for engineering services performed
under this Agreement shall be the
care and skill ordinarily used by members
of the engineering professions
practicing under similar conditions at the
same time and locality. The entity
providing engineering services shall be
referred to as the Engineer and provide
separate and exclusive Professional
Liability Insurance as required. The
engineering services shall be procured
pursuant to a separate agreement between
the Design-Builder and the Engineer.
2.2.1 THE Engineer FOR THE Project shall BE
DELTA-T CORPORATION,
2.3 EXTENT OF AGREEMENT This Agreement is
solely for the benefit of the parties,
represents the entire and integrated
agreement between the parties, and
supersedes all prior negotiations,
representations or agreements, either written
or oral, except for the signed and dated
Lyles Diversified, Inc. Agreement
titled "Summary of Terms for Secured Debt
With Equity." The Owner and the
Design-Builder AGREE TO LOOK SOLELY TO EACH
other with RESPECT TO THE
PERFORMANCE OF THE AGREEMENT. THE Agreement
and each and every provision is for
the exclusive benefit of the Owner and the
Design-Builder and not for the
benefit of any third party or any third
party beneficiary, except to the extent
expressly provided in the Agreement.
2.4 DEFINITIONS
.1 The Contract DOCUMENTS consist of:
a. Change Orders and written amendments to this Agreement
including exhibits and appendices, signed by both the Owner
and the Design-Builder, including Amendment No. 1 if executed;
b. this Agreement except for the existing Contract Documents
set forth in item e. below;
c. the most current documents approved by the Owner pursuant
to Paragraph 3.1;
d. the information provided by the Owner pursuant to Clause
4.1.2.1;
e. the Contract Documents in existence at the time of
execution of this Agreement which are set forth in Article 15.
Additional Exhibits may be added to this document with proper
signature of the Owner and design-Builder;
f. the Owner's Program provided pursuant to Subparagraph 4.1.;
In case of any inconsistency, conflict or ambiguity among the
Contract
Documents, the documents shall govern in the order in which they
are
listed above.
.2 The term day shall mean calendar day unless otherwise
specifically
defined.
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.3 DESIGN-BUILDER'S FEE means the compensation paid to the
Design-Builder for salaries and other mandatory or customary
compensation of the Design-Builder's employees at its principle
and
branch offices except employees listed in Subparagraph 8.2.2,
general
and administrative expenses of the Design-Builder's principal
and
branch offices other than the field office, and the
Design-Builder's
capital expenses, including interest on the Design-Builder's
capital
employed FOR the WORK, AND PROFIT.
.4 DEFECTIVE WORK IS ANY portion of the Work not in conformance
with
the Contract Documents as more fully described in Paragraph
3.8.
.5 The term Fast-track means accelerated scheduling which
involves
commencing construction prior to the completion of drawings and
specifications and then using means such as bid PACKAGES AND
EFFICIENT
COORDINATION TO COMPRESS THE overall schedule.
.6 FINAL COMPLETION occurs on the date when the
Design-Builder's
obligations under this Agreement are complete and accepted by the
Owner
and final payment becomes due and payable.
.7 A MATERIAL SUPPLIER is a party or entity retained by the
Design-Builder to provide material and equipment for the Work.
.8 Others means other contractors and all persons at the Worksite
who
are not employed by Design-Builder, its Subcontractors or
Material
Suppliers.
.9 The OWNER is the person or entity identified as such in this
Agreement and includes the Owner's Representative.
.10 The OWNER'S PROGRAM IS an initial description of the
Owner's
objectives, that may include budget and time criteria, space
requirements and relationships, flexibility and expandability
requirements, special equipment and systems, and site
requirements
completed by the Design-Builder and Engineer as described in
Exhibit
No. C; Project Development Agreement.
.11 The PROJECT, as identified in Article 1, is the building,
facility
and/or other improvements for which the Design-Builder is to
perform
the Work under this Agreement It may also include improvements to
be
undertaken by the Owner or Others.
.12 A SUBCONTRACTOR IS A party or entity retained by the
Design-Builder
as. an independent contractor to provide the on-site labor,
materials,
equipment and/or services necessary to complete a specific portion
of
the Work. The term Subcontractor does not include the Engineer or
any
separate contractor employed by the Owner or any separate
contractor's
subcontractors.
.13 SUBSTANTIAL COMPLETION OF THE WORK, OF a designated portion,
occurs
on the date when the Design-Builder's obligations are
sufficiently
complete in accordance with the Contract Documents so that the
Owner
can or does occupy or utilize the Project, or a designated portion,
for
the use for which it is intended, in accordance with Paragraph
10.4.
The issuance of a Certificate of Occupancy is not a prerequisite
for
Substantial Completion if the Certificate of Occupancy cannot
be
obtained due to factors. beyond the Design-Builder's control. This
date
shall be confirmed by a Certificate of Substantial Completion
signed by
the Owner and the Design-Builder. The Certificate shall state
the
respective responsibilities of the Owner and the Design-Builder
for
security, maintenance, heat, utilities, damage to the Work, and
insurance. The Certificate shall also list the items to be
completed or
corrected, and establish the time for their completion and
correction,
within the time frame, if any, established in Amendment No. I for
the
Date of Final Completion.
.14 A SUB-SUBCONTRACTOR IS a party or entity who has an agreement
with
a Subcontractor to perform any portion of the Subcontractor's
work.
.15 The WORK is the Design Development and Design Phase
Services
procured or furnished in accordance with Paragraph 3.1, the GMP
Proposal provided in accordance with Paragraph 3.2, the
Construction
Phase Services provided in accordance with Paragraph 3.3,
Additional
Services that may be provided in accordance with paragraph 3.10,
and
other services which are necessary to complete the Project in
accordance with and reasonably inferable from the Contract
Documents.
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.16 WORKSITE means the geographical area at the location mentioned
in
Article where the Work is to be performed.
ARTICLE 3 -DESIGN-BUILDER'S
RESPONSIBILITIES
THE Design-Builder shall be responsible for
procuring the design and for
furnishing the construction of the Work
consistent with the Owner's Program; as
such the Owner may modify the Program
during the course of the work up to
twenty-five (25)-percent design complete.
The Design-Builder shall exercise
reasonable skill and judgment in the
performance of its services consistent with
the team relationship described in
Paragraph 2.1, but does not warrant nor
guarantee schedules and estimates other
than those that are part of the GMP
proposal.
3.1 DESIGN PHASE SERVICES
3.1.1 PRELIMINARY EVALUATION - OWNER'S
PROGRAM The Design-Builder shall review
the Owner's Program to ascertain the
requirements of the Project and shall
verify' such requirements with the Owner.
The Design-Builder's review shall also
provide to the Owner a preliminary
evaluation of the site with regard to access,
traffic, drainage, parking, building
placement and other considerations
affecting the plant, the environment and
energy use, as well as information
regarding applicable governmental laws,
regulations and requirements based on
the requirements of Exhibit No. C. The
Design-Builder shall also propose, as
necessary, alternative architectural,
civil, structural, mechanical, electrical
and other systems for review by the Owner,
to determine the most desirable
approach on the basis of cost, technology,
quality and speed of delivery. The
Design-Builder will also review existing
test reports but will not undertake any
independent testing nor be required to
furnish types of information derived
from. such testing in its Preliminary
Evaluation. Based upon its review and
verification of the Owner's Program and
other relevant information the
Design-Builder shall provide a Preliminary
Evaluation of the Project's
feasibility for the Owner's acceptance. The
Design-Builder's Preliminary
Evaluation shall specifically identify any
deviations from the Owner's Program.
3.1.2 PRELIMINARY SCHEDULE - OWNER"S
PROGRAM The Design-Builder shall prepare a
preliminary schedule of the Work as
established by the information provide by
the Engineer in Exhibit No. C. The Owner
shall provide written approval of
milestone dates established in the
preliminary schedule of the Work. The
schedule shall show the activities of the
Owner, the Engineer and the
Design-Builder necessary to meet the
Owner's completion requirements. The
schedule shall be updated periodically with
the level of detail for each
schedule update reflecting the information
then available. If an update
indicates that a previously approved
schedule will not be met, the
Design-Builder shall recommend corrective
action to the Owner in writing.
3.1.3 PRELIMINARY ESTIMATE -- OWNER'S
PROGRAM ' When sufficient Project
information has been identified, the
Design-Builder shall prepare for the
Owner's acceptance a preliminary estimate
established by the information
provided by the Engineer in Exhibit No. C
utilizing typical W.M. LYLES CO.
estimating techniques. The estimate shall
be updated periodically with the level
of detail for each estimate update
reflecting the information then available. If
the preliminary estimate or any update
exceeds the Owner's budget, the
Design-Builder shall make recommendations
to the Owner.
3.1.4 DESIGN DEVELOPMENT DOCUMENTS -
OWNER'S PROGRAM The Design-Builder shall
submit for the Owner's written approval the
Design Development Documents as
submitted by the Engineer and required in
Exhibit No. C signed by the
Design-Builder and Engineer based on the
approved Schematic Design Documents.
The Design Development Documents shall
further define the Project including
drawings and outline specifications fixing
and describing the Project size and
character as to site utilization, and other
appropriate elements incorporating
the structural, architectural, mechanical
and electrical systems. One set of
these documents shall be furnished to the
Owner. When the Design-Builder submits
the Design Development Documents, the
Design-Builder shall identify in writing
all material changes and deviations that
have taken place from the Schematic
Design Documents. The Design-Builder shall
update the schedule and estimate
based on the Design Development
Documents.
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3.1.5 TECHNOLOGY TRANSFER AGREEMENT AND
FUTURE DESIGN SERVICES AGREEMENT Upon
execution of Exhibit No. C, the Owner,
Engineer and Design-Builder shall enter
into good-faith negotiations for the
Technology Transfer Agreement and the
Design-Builder and Engineer shall enter
into good-faith negotiations for the
Design Services Agreement. Upon
confirmation that the Owner has obtained the
necessary Project Financing, the Technology
Transfer Agreement and Design
Services agreement shall be fully executed
so as to not delay the project.
3.1.6 CONSTRUCTION DOCUMENTS Upon
confirmation that the Owner has obtained the
necessary Project Financing, the
Design-Builder shall submit for the Owner's
written approval Construction Documents
based on the approved Design Development
Documents. The Construction Documents shall
set forth in detail the requirements
for construction of the Work, and shall
consist of drawings and specifications
based upon codes, laws and regulations
enacted at the time of their preparation.
When the Design-Builder submits the
Construction Documents, the Design-Builder
shall identify in writing all material
changes and deviations that have taken
place from the Design Development
Documents. Construction shall be in accordance
with these approved Construction Documents.
One set of these documents shall be
furnished to the Owner prior to
commencement of construction.
3.1.7 OWNERSHIP OF DOCUMENTS Upon the
making of payment pursuant to Paragraph
10.5, the Owner shall receive ownership of
the property rights, except for
copyrights and other limited license
information provided and required by the
Engineer, of all documents, drawings,
specifications, electronic data and
information prepared, provided OR PROCURED
by the Design-Builder, its Engineer,
Subcontractors and Consultants and
distributed to the Owner for this Project.
("Design-Build Documents")
.1 If this Agreement is terminated pursuant to Paragraph 12.1,
the
Owner shall receive ownership of the property rights, except
for
copyrights and other limited license information provide by the
Engineer, of the Design-Build Documents upon payment for all
work
performed in accordance with this Agreement, at which time the
Owner
shall have the right to use, reproduce and make derivative works
from
the Design-Build Documents to complete the Work.
.2 If this Agreement is terminated pursuant to Paragraph 12.2,
the
Owner shall receive ownership of the property rights, except
for
copyrights and other limited license information provide by the
Engineer, of the Design-Build Documents upon payment of all
sums
provided in Paragraph 12.2, at which time the Owner shall have
the
right to use, reproduce and make derivative works from the
Design-Build
Documents to complete the Work.
.3 The Owner may use, reproduce and make derivative works from
the
Design-Build documents for subsequent renovation and remodeling of
the
work, but shall not use, reproduce or make derivative works from
the
Design-Build Documents for other projects without the written
authorization of the Design-Builder and Engineer, who shall not
unreasonably withhold consent.
.4 The Owner's use of the Design-Build Documents without the
Design-Builder's involvement or on other projects is at the
Owner's
sole risk, except for the Design-Builder's indemnification
obligation
pursuant to Paragraph 3.7, and the Owner shall defend, indemnify
and
hold harmless the Design-Builder, its Engineer, Subcontractors,
and
consultants, and the agents; officers, directors and employees of
each
of them from and against any and all claims, damages, losses,
costs
'and expenses, including but not limited to attorney's fees, costs
and
expenses incurred in connection with any dispute resolution
process,
arising out of or resulting from the Owner's use of the
Design-Build
Documents.
.5 The Design-Builder shall obtain from its Engineer,
Subcontractors
and consultants property rights and rights of use that correspond
to
the rights given by the Design-Builder to the Owner in this
Agreement.
3.2 GUARANTEED MAXIUM PRICE (GMP)
3.2.1 GMP PROPOSAL The GMP shall be the sum
of the estimated Design-Builder's
Time and Material Cost of the work as
defined in Article 8 and listed in Exhibit
No. B, Design-Builder's Fee as defined in
Article land the Design-Builder's
Contingency as defined in Article 3.2.7.
The GMP is subject to modification as
provided in Article 9.
3.2.1.1 The Design-Development Documents
shall be sufficiently complete at the
time the GMP Proposal is submitted to the
Owner. The Design-Builder shall
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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 GUARANTEED MAXIMUM PRICE The
Design-Builder shall include with
the GMP Proposal a written statement of its
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 current Time and Material worksheet (Exhibit No. B);
.3 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;
.4 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;
.5 a schedule of applicable alternate prices and unit prices if
necessary;
.6 Additional Services if any;
.7 the time limit for acceptance of the GMP proposal;
.8 the Design-Builder's Contingency as provided in Subparagraph
3.2.6;
.9 a statement of any work to be self performed by the
Design-Builder;
and
.10 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 No. 1.
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 8 without A GMP, in which case
all
references in this agreement to the GMP shall not be applicable;
or
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 DESIGN-BUILDER'S CONTINGENCY The GMP
Proposal will contain, as part of the
estimated Cost of the Work, the
Design-Builder's Contingency, a sum mutually
agreed upon and monitored by the
Design-Builder and the Owner for use at the
Design-Builder's discretion to cover costs
which are properly reimbursable as a
Cost of the Work but are not the basis for
a Change Order. Any contingency
amount remaining after Owner's start=up and
use of the project shall be
equitably split between the Design-Builder
and Owner on a 50/50 basis.
3.2.7 CONSTRUCTION PHASE SERVICES The
Construction. Phase will commence upon the
confirmation that the Owner has obtained
the necessary Project Financing and
issuance by the Owner of a written notice
to proceed with construction.
32.8 In order to complete the Work, the
Design-Builder shall provide all
necessary construction supervision,
construction equipment, labor, materials,
tools, and subcontracted items.
3.2.9 The Design-Builder shall give all
notices and comply with all laws and
ordinances legally enacted at the date of
execution of the Agreement which
govern the proper performance of the
Work.
3.2.10 The Design-Builder shall keep such
full and detailed accounts as are
necessary for proper financial management
under this Agreement. The Owner shall
be afforded access to all the
Design-Builder's records, books, correspondence,
instructions, drawings, receipts,
vouchers., memoranda and similar data relating
to this Agreement. The Design-Builder shall
preserve all such records for a
period of three years after the final
payment or longer where required by law.
3,2.11 The. Design-Builder shall provide
periodic written reports to the Owner
on the progress of the Work in such detail
as agreed to by the Owner and the
Design-Builder.
3.2.12 The Design-Builder shall develop a
system of cost reporting for the Work,
including regular monitoring of actual
costs for activities in progress and
estimates for uncompleted tasks and
proposed changes in the Work. The reports
shall be presented to the Owner at mutually
agreeable intervals.
3.2.13 The Design-Builder shall regularly
remove debris and waste materials at.
the Worksite resulting from the Work. Prior
to discontinuing Work in an area,
the Design-Builder shall clean the area and
remove all rubbish and its
construction equipment, tools, machinery,
waste and surplus materials. The
Design-Builder shall minimize and confine
dust and debris resulting from
construction activities. At the completion
of the Work, the Design-Builder shall
remove from the Worksite all construction
equipment, tools, surplus materials,
waste materials and debris.
3.2.14 The Design-Builder shall prepare and
submit to the Owner final marked up
as-built drawings in general documenting
how the various elements of the Work
including changes were actually constructed
or installed, or as defined by the
parties by attachment to this
Agreement.
3.3 SCHEDULE OF THE WORK THE Design-Builder
shall prepare and submit a final
Schedule of work for the Owner's Acceptance
and Written Approval as to
Milestone Dates. This schedule shall
indicate the dates for the start and
Completion of the various stages of the
Work, including The dates when
information and 'approvals are required
from the Owner. The Schedule shall be
revised as required by the conditions of
the Work.
3.4 SAFETY OF PERSONS AND PROPERTY
3.4.1 SAFETY PRECAUTIONS AND PROGRAMS The
Design-Builder shall have overall
responsibility for safety precautions and
programs in the performance of the
Work. While the provisions of this
Paragraph establish the responsibility for
safety between the Owner and the
Design-Builder, they do not relieve
Subcontractors of their responsibility for
the safety of persons or property in
the performance of their work, nor for
compliance with the provisions of
applicable laws and regulations.
3.4.2 The Design-Builder shall seek to
avoid injury, loss or damage to persons
or property by taking reasonable steps to
protect:
.1 its
employees and other persons at the Worksite;
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.2 materials, supplies and equipment stored at the Worksite for use
in
performance of the Work; and
.3 the Project and all property located at the Worksite and
adjacent to
work areas, whether or not said property or structures are part of
the
Project or involved in the Work.
3.4.3 DESIGN-BUILDER'S SAFETY PROGRAM The
Design-Builder's On-Site Safety
Program shall include all OSHA required
elements and the following components:
.1 Established and administrated on-site Drug Prevention and
Alcohol
Testing Program.
.2 Established and administrated on-site Safety Orientation
Training
and Education Program.
3.4.4 DESIGN-BUILDER'S SAFETY
REPRESENTATIVE The Design-Builder shall designate
an individual at the Worksite in the employ
of the Design-Builder who shall act
as the Design-Builder's designated safety
representative with a duty to prevent
accidents. The Design-Builder will. report
immediately in writing all accidents
and injuries occurring at the Worksite to
the Owner. If the Design-Builder is
required to file an accident report with a
public authority, the Design-Builder
shall furnish a copy of the report to the
Owner.
3.4.5 The Design-Builder shall provide the
Owner with copies of all notices
required of the Design-Builder by law or
regulation. The Design-Builder's safety
program shall comply with the requirements
of governmental and
quasi-governmental authorities having
jurisdiction over the Work.
3.4.6 Damage or loss not insured under
property insurance which may arise from
the performance of the Work, to the extent
of the negligence attributed to such
acts or omissions of the Design-Builder, or
anyone for whose acts the
Design-Builder may be liable, shall be
promptly remedied by the Design-Builder.
Damage or loss attributable to the acts or
omissions of the Owner or Others and
not to the Design-Builder shall be promptly
remedied by the Owner.
3.4.7 If the Owner or Owner's
representative deems any part of the Work or
Worksite unsafe, the Owner, without
assuming responsibility for the
Design-Builder's safety program, may
require the Design-Builder to stop
performance of the Work or take corrective
measures satisfactory to the Owner,
or both. The Design-Builder agrees to make
no claim for damages, for an increase
in the GMP, compensation for Design Phase
Services, the Design-Builder's Fee
and/or the Date of Substantial Completion
and/or the Date of Final Completion
based on the Design-Builder's compliance
with the Owner's reasonable request.
3.5 HAZARDOUS MATERIALS
3.5.1 A Hazardous Material is any substance
or material identified now or in the
future as hazardous under any federal,
state or local law or regulation, or any
other substance or material which may be
considered hazardous or otherwise
subject to statutory or regulatory
requirements governing handling, disposal
and/or clean-up. The Design-Builder shall
not be obligated to commence or
continue work until all Hazardous Material
discovered at the Worksite has been
removed, rendered or determined to be
harmless by the Owner as certified by an
independent testing laboratory approved by
the appropriate government agency.
3.5.2 If after the commencement of the
Work, Hazardous Material is discovered at
the Project, the Design-Builder shall be
entitled to immediately stop Work in
the affected area. The Design-Builder shall
report the condition to the Owner
and, if required, the government agency
with jurisdiction. The Design-Builder
reserves the right to remove any identified
Hazardous Material under a separate
Time and Material Contract.
3.5.3 The Design-Builder shall not be
required to perform any Work relating to
or in the area of Hazardous Material
without written mutual agreement.
3.5.4 The Owner shall be responsible for
retaining an independent testing
laboratory to determine the nature of the
material encountered and weather it is
a Hazardous Material requiring corrective
measures and/or remedial action. Such
measures shall be the sole responsibility
of the Owner, and shall be performed
in a manner minimizing any adverse effects
upon the Work of the Design-Builder.
The Design-Builder shall resume Work in the
area affected by any Hazardous
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Material only upon written agreement
between the parties after the Hazardous
Material has been removed or rendered
harmless and only after approval, if
necessary, of the governmental agency or
agencies with jurisdiction.
3.5.5 If the Design-Builder incurs
additional costs and/or is delayed due to the
presence or remediation OF Hazardous
Material, the Design-Builder shall be
entitled to an equitable adjustment in the
GMP, compensation for Design Phase
Services, the Design-Builder's Fee and/or
the Date of Substantial Completion
and/or the Date of Final Completion.
3.5.6 Provided the Design-Builder, its
Subcontractors, Material Suppliers and
Sub-subcontractors, and the agents,
officers, directors and employees of each of
them, have not, acting under their own
authority, knowingly entered upon any
portion of the Work containing Hazardous
Materials, and to the extent not caused
by the negligent acts or omissions of the
Design-Builder, its Subcontractors,
Material Suppliers and Sub-subcontractors,
and the agents, officers, directors
and employees of each of them, the Owner
shall defend, indemnify and hold
harmless the Design-Builder, its
Subcontractors and Sub-subcontractors, and the
agents, officers, directors and employees
of each of them, from and against any
and all direct claims, damages, fosses,
costs and expenses, including but not
limited to attorney's fees, costs and
expenses incurred in connection with any
dispute resolution process, arising out of
or relating to the performance of the
Work in any area affected by Hazardous
Material. To the fullest extent permitted
by law, such indemnification shall apply
regardless of the fault, negligence,
breach of warranty or contract, or strict
liability of the Owner.
3.5.7 Material Safety Data (MSD) sheets as
required by law and pertaining to
materials or substances used or consumed in
the performance of the Work, whether
obtained by the Design-Builder,
Subcontractors, the Owner or Others, shall be
maintained at the Project by the
Design-Builder and made available to the Owner
and Subcontractors.
3.5.8 During the Design-Builder's
performance of the Work, the Design-Builder
shall be responsible for the proper
handling of all materials brought to the
Worksite by the Design-Builder. Upon the
issuance of the Certificate of
Substantial Completion, the Owner shall be
responsible under this Paragraph for
materials and substances brought to the
site by the Design-Builder if such
materials or substances are required by the
Contract Documents.
3.5.9 The terms of this Paragraph 3.5 shall
survive the completion of the Work
under this Agreement and/or any termination
of this Agreement.
3.6 ROYALTIES, PATENTS AND COPYRIGHTS The
Design-Builder shall pay all royalties
and license fees which may be due on the
inclusion of any patented or
copyrighted materials, methods or systems
selected by the Design-Builder and
incorporated in the Work. The
Design-Builder shall defend, indemnify and hold
the Owner harmless from all suits or claims
for infringement of any patent
rights or copyrights arising out of such
selection. The Owner agrees to defend,
indemnify and hold the Design-Builder and
Engineer harmless from all suits or
claims OF infringement of any patent rights
or copyrights arising out of any
patented or copyrighted materials, methods
or systems specified by the Owner.
3.7 WARRANTIES AND COMPLETION
3.7.1 The Design-Builder warrants that all
materials and equipment furnished
under the Construction Phase of this
Agreement will be new unless otherwise
specified, of good quality, in conformance
with the Contract Documents, and free
from defective workmanship and materials.
Warranties shall commence on the Date
of Substantial Completion of the Work or of
a designated portion. The
Design-Builder agrees to correct all
construction performed under this Agreement
which is defective in construction
workmanship or materials within a period of
one year from the Date of Substantial
Completion.
3.7.2 To the extent products, equipment,
systems or materials incorporated in
the Work are specified and purchased by the
Owner, they shall be covered
exclusively by the warranty of the
manufacturer. There are no warranties that
extend beyond the description on the face
of any such warranty. To the extent
products, equipment, systems or materials
incorporated in the Work are specified
by the Owner but purchased by the
Design-Builder and are inconsistent with
selection criteria that otherwise would
have been followed by the
Design-Builder, the Design-Builder shall
assist the Owner in pursuing warranty
claims. ALL OTHER WARRANTIES EXPRESSED OR
IMPLIED INCLUDING THE WARRANTY OF
MERCHANTABILITY AND THE WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE ARE
EXPRESLY DISCLAIMED.
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3.7.3 The Design-Builder shall secure
required certificates of inspection,
testing or approval and deliver them to the
Owner.
3.7.4 The Design-Builder shall collect all
written warranties and equipment
manuals and deliver them to the Owner in a
format directed by the Owner.
3.7.5 With the assistance of the Owner's
maintenance personnel, the
Design-Builder shall direct the checkout of
utilities and start-up operations,
and adjusting and balancing of systems and
equipment for readiness.
3.8 CONFIDENTIALITY The Design-Builder
shall treat as confidential and not
disclose to third persons, except
Subcontractors, Sub-subcontractors and the
Engineer as is necessary for the
performance of the Work, or use for its own
benefit any of the Owner's developments,
confidential information, know-how,
discoveries, production methods and the
like that may be disclosed to the
Design-Builder or which the Design-Builder
may acquire in connection with the
Work. The Owner shall treat as confidential
information all of the
Design-Builder's estimating systems
historical and parameter cost data and the
Engineer's Design/Process information that
may be disclosed to the Owner in
connection with the performance of this
Agreement.
3.9 ADDITIONAL SERVICES The. Design-Builder
shall provide or procure the
following Additional Services upon the
request of the Owner. A written agreement
between the Owner and the DESIGN-Builder
shall define the extent of such
Additional Services before they are
performed by the Design-Builder. If a GMP
has been established for the Work or any
portion of the Work, such Additional
Services shall be considered a Change in
the Work, unless they are specifically
included in the statement of the basis of
the GMP as set forth in Amendment No.
1.
.1 Consultations, negotiations, and documentation supporting
the
procurement of Project financing.
.2 Surveys, site evaluations, legal descriptions and aerial
photographs.
.3 Appraisals of existing equipment, existing properties, new
equipment
and developed properties.
.4 Consultations and representations before governmental
authorities or
others having
jurisdiction over the Project other than normal
assistance in securing building permits.
.5 Investigation or making measured drawings of existing conditions
or
the reasonably required verification of Owner-provided drawings
and
information.
.6 Artistic renderings, models and mockups of the Project or any
part
of the Project or the Work.
.7 Estimates, proposals, appraisals, consultations, negotiations
and
services in connection with the repair or replacement of an
insured
loss, provided such repair or replacement did not result from
the
negligence of the Design-Builder.
.8 Obtaining service contractors and training maintenance
personnel,
assisting
and consulting in the use of systems and equipment after the
initial start up.
.9 Services for tenant or rental spaces not a part of this
Agreement.
.10 Services requested by the Owner or required by the Work which
are
not specified in the Contract Documents and which are not normally
part
of generally accepted design and construction practice.
.11 Serving or preparing to serve as an expert witness in
connection
with any proceeding, legal or otherwise, regarding the Project.
.12 Document reproduction exceeding the limits provided for in
this
Agreement.
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3.10 DESIGN-BUILDER'S REPRESENTATIVE The
Design-Builder shall designate a person
who shall be the Design-Builder's
authorized representative. The
Design-Builder's Representative is: Mr.
Rick Amigh.
ARTICLE 4 - OWNER'S RESPONSIBILITIES
4.1 INFORMATION AND SERVICES PROVIDED BY
OWNER
4.1.1 The Owner shall provide full
information in a timely manner regarding
requirements for the Project, including the
Owner's Program and other relevant
information.
4.1.2 The Owner shall provide:
.1 all available information describing the physical
characteristics of
the site, including surveys, site evaluations, legal
descriptions,
existing conditions, subsurface and environmental studies, reports
and
investigations;
.2 inspection and testing services during construction as required
by
law or as mutually agreed; and
.3 unless otherwise provided in the Contract Documents,
necessary
approvals, site plan review, rezoning, easements and assessments,
fees,
permits and charges required for the construction, use, occupancy
or
renovation of permanent structures, including legal and other
required
services.
4.1.3 The Owner shall provide reasonable
evidence satisfactory to the
Design-Builder, prior to commencing the
Work and during the progress of the
Work, that sufficient funds are available
and committed for the entire cost of
the Project, including a reasonable
allowance for changes in the Work as may be
approved in the course of the Work. Unless
such reasonable evidence is provided,
the Design Builder shall not be required to
commence or continue the Work. The
Design-Builder may stop Work after seven
(7) days written notice to the Owner if
such evidence is not presented within a
reasonable time. THE failure of the
Design-Builder to insist upon the providing
of this evidence at any one time
shall not be a waiver of the Owner's
obligation to make payments pursuant to
this Agreement, nor shall it be a waiver of
the Design-Builder's right to
require that such evidence be provided at a
later date.
4.1.4 The Design-Builder shall be entitled
to rely on the completeness and
accuracy of the information and services
required by this Paragraph 4.1.
4.2 RESPONSIBILITIES DURING DESIGN
PHASE
4.2.1 The Owner shall provide information
for the Owner's Program at the
inception of the Design Phase and shall
review. and timely approve in writing
all schedules, estimates, Preliminary
Estimate, Schematic Design Documents,
Design Development Documents and
Construction Documents furnished during the
Design Phase as set forth in Paragraph 3.1,
and the GMP Proposal as set forth in
Paragraph 3.2.
4.2.2 The Owner shall provide good-faith
negotiations in a timely manner so as
not to delay any contractual
agreements.
4.3 RESPONSIBILITIES DURING CONSTRUCTION
PHASE
4.3.1 The Owner shall review the Schedule
of the Work as set forth in Paragraph
3.3 and timely approve the milestone dates
set forth.
4.3.2 If the Owner becomes aware of any
error, omission or failure to meet the
requirements of the Contract Documents or
any fault or defect in the Work, the
Owner shall give prompt written notice to
the Design-Builder.
4.3.3 The Owner shall communicate with the
Design-Builder's Subcontractors,
Material Suppliers and the Engineer only
through or in the presence of the
Design-Builder. The Owner shall have no
contractual obligations to
Subcontractors, suppliers, or the
Engineer.
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4.3.4 The Owner shall provide insurance for
the Project as provided in Article
11.
4.4 OWNER'S REPRESENTATIVE The Owner's
Representative is Mr. Neil Koehler. The
Representative:
.1 shall be fully acquainted with the Project;
.2 agrees to furnish the information and services required of the
Owner
pursuant to Paragraph 4.1 so as not to delay the Design-Builder's
Work;
and
.3 shall have authority to bind the Owner in all matters requiring
the
Owner's approval, authorization or written notice if the Owner
changes
its representative or the representative's authority as listed
above,
the Owner shall notify the Design-Builder in writing in
advance.
4.5 TAX EXEMPTION If in accordance with the
Owner's direction the Design-Builder
may claim an exemption for taxes and the
Owner shall defend, indemnify and hold
the Design-Builder harmless for all
liability, penalty, interest, fine, tax
assessment, attorney's fees: or other
expense or cost incurred by the
Design-Builder as a result of any action
taken by the Design-Builder in
accordance with the Owner's direction.
ARTICLE 5 -- SUBCONTRACTS
Work not performed by the Design-Builder
with its own forces shall be performed
by Subcontractors or the Engineer.
5.1 RETAINING SUBCONTRACTORS The
Design-Builder shall not retain any
subcontractor to whom the Owner has a
reasonable and timely objection, provided
that the Owner agrees to compensate the
Design-Builder for any additional costs
incurred by the Design-Builder as a result
of such objection. The Owner may
propose subcontractors to be considered by
the Design-Builder. The
Design-Builder shall not be required to
retain any subcontractor to whom the
Design-Builder has a reasonable
objection.
5.2 MANAGEMENT OF SUBCONTRACTORS The
Design-Builder shall be responsible for the
management of the Subcontractors in the
performance of their work and require
all Subcontractors and third party
sub-subcontractors and suppliers, as
necessary, to comply with all of the
provisions of the Agreement.
5.4 BINDING OF SUBCONTRACTORS AND MATERIALS
SUPPLIERS The Design-Builder agrees
to bind every Subcontractor and Material
Supplier (and require every
Subcontractor to so bind its
Sub-subcontractors and Material Suppliers) to all
the provisions of this Agreement and the
Contract Documents as they apply to the
Subcontractor's and Material Supplier's
portions of the Work.
5.5 LABOR RELATIONS As of the date of this
Agreement, the Design-Builder is
signatory to the following labor
agreements:
1.
Northern Operating Engineers
2.
Northern Laborers
3.
Northern Utility Fitters
ARTICLE 6 - TIME
6.1 DATE OF COMMENCEMENT Time is of the
essence. The Date of Commencement is the
effective date of this Agreement as first
written in Article 1. The Work shall
proceed in general accordance with the
Schedule of Work as such schedule may be
amended from time to time, subject,
however, to other provisions of this
Agreement.
6.2 SUBSTANTIAUFINAL COMPLETION Unless the
parties agree otherwise, the Date of
Substantial Completion and/or the Date of
Final Completion shall be established
in Amendment No. 1 to this Agreement
subject to adjustments as provided for in
the Contract Documents. If such dates are
not established upon the execution of
this Agreement of such time as a GMP is
______ a Date of Substantial Completion
and/or Date of Final Completion of the Work
shall be established in Amendment
No. 1.
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6.2.1 Time limits stated in the Contract
Documents are of the essence.
6.2.2 Unless instructed by the Owner in
writing, the Design-Builder shall not
knowingly commence the Work before the
effective date of insurance that is
required to be provided by the
Design-Builder or the Owner.
6.3 DELAYS IN THE WORK
6.3.1 If causes beyond the Design-Builder's
control delay the progress of the
Work, then the GMP, compensation for Design
Phase Services, the Design-Builder's
Fee and/or the Date of Substantial
Completion and/or the Date of Final
Completion shall be modified by Change
Order as appropriate. Such causes shall
include but not be limited to: changes
ordered in the Work, acts or omissions of
the Owner or Others, the Owner preventing
the Design-Builder from performing the
Work pending dispute resolution, Hazardous
Materials or differing site
conditions. Causes beyond the control of
the Design-Builder do not include acts
or omissions on the part of the
Design-Builder, Subcontractors,
Sub-subcontractors, Material Suppliers or
the Engineer.
6.3.2 To the extent a delay in the progress
of the Work is caused by adverse
weather conditions not reasonably
anticipated, fire, unusual transportation
delays, general labor disputes impacting
the Project but not specifically
related to the Worksite, governmental
agencies, or unavoidable accidents or
circumstances, the Design-Builder shall
only be entitled to its actual costs
without fee and an extension of the Date of
Substantial Completion and/or the
Date of Final Completion.
6.3.3 In the event delays to the Project
are encountered for any reason, the
parties agree to undertake reasonable steps
to mitigate the effect of such
delays.
ARTICLE 7 - COMPENSATION
7.1 DESIGN PHASE COMPENSATION
7.1.1 To the extent required by applicable
law, the cost of services performed
directly by the Engineer is computed
separately and detailed in Exhibit No. C
attached hereto. The Engineer's
Design-Phase Compensation is independent from
the Design-Builder's compensation for work
or services performed directly by the
Design-Builder; these costs shall be shown
as separate items on applications for
payment.
7.12 The Owner shall compensate the
Design-Builder for services performed during
the Design Phase As Described in Paragraph
3.1 And Included in Exhibit No. C
executed by the Design-Builder and
Engineer, including preparation of a GMP
Proposal as described in Paragraph 3.2, as
follows: Time and Material Costs as
outlined in Exhibit No. B for the
development of the Owner's Program,
establishing the project requirements,
general business planning and other
Information and documentation as may be
required to establish the feasibility of
the project, making revisions to the
Schematic Design, design Development,
Design, coordination, management,
expediting and other services supporting the
procurement of materials to be obtained, or
work to be performed, by the Owner,
including but not limited to telephone
systems, computer wiring networks, sound
systems, alarms, security systems and other
specialty systems which are not a
part of the Work, Preliminary Construction
Schedules and Estimates, Construction
Documents forming the basis of the GMP.
7.1.3 Compensation for Design Phase
Services, as part of the Work, shall include
the Design-Builder's Fee as established in
the Time and Material Costs, Exhibit
No. B, paid in proportion to the services
performed, subject to adjustment as
provided in Paragraph 7.4.
7.1.4 For changes in Design Phase services,
any additional compensation shall be
adjusted as indicated in the Project
Development Agreement signed by the
Design-Builder and Engineer.
7.1.5 Within fifteen (15) days after
receipt of each monthly application for
payment, the Owner shall give written
notice to the Design-Builder of the
Owner's acceptance or rejection, in whole
or in part, of such application for
payment. Within fifteen (15) days after
accepting such application, the Owner
shall pay directly to the Design-Builder
the appropriate amount for which
application for payment is made, less
amounts previously paid by the Owner. If
such application is rejected in whole or in
part, the Owner shall indicate the
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reasons for its rejection. If the Owner and
the Design-Builder cannot agree on a
revised amount then, within fifteen (15)
days after its initial rejection in
part of such application, the Owner shall
pay directly to the Design-Builder the
appropriate amount for those items not
rejected by the Owner for which
application for payment is made, less
amounts previously paid by the Owner.
Those items rejected by the Owner shall be
due and payable when the reasons for
the rejection have been removed.
7.1.6 If the Owner fails to pay the
Design-Builder at the time payment of any
account becomes due, then the
Design-Builder may, at any time thereafter, upon
serving written notice that the Work will
be stopped within seven (7) days after
receipt of the notice by the Owner, and
after such seven (7) day period,
stop. the Work until payment of the amount
owing has been received.
7.1.7 Payments due pursuant to Subparagraph
7.1.5, may bear interest from the
date payment is due at the prime rate
prevailing at the location of Project.
7.2 CONSTRUCTION PHASE COMPENSATION
7.2.1 The Owner shall compensate the
Design-Builder for work performed following
the commencement of the Construction Phase
on the following basis:
.1 the Cost of the Work as allowed in Article 8; and
.2 the Design-Builder's Fee paid in proportion to the services
performed subject to adjustment as provided in Paragraph 7.4.
7.2.2 The compensation to be paid under
this Paragraph 7.2 shall be limited to
the GMP established in Amendment No. 1, as
the GMP may be adjusted under Article
9.
7.2.3 Payment from Construction Phase
Services shall be as set forth in Article
10. If Design Phase Services continue to be
provided after construction has
commenced, the Design-Builder shall
continue to be compensated as provided in
Paragraph 7.1, or as mutually agreed.
7.3 DESIGN-BUILDER'S FEE The
Design-Builder's Fee shall be as follows, subject
to adjustment as provided in Paragraph 7.4,
Time and Material Costs per Exhibit
No. B payable each month as provided in
Paragraph 7.1.5.
7.4 ADJUSTMENT IN THE DESIGN-BUILDER'S FEE
Adjustment in the Design-Builder's
F
