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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
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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
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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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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.
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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
Fee shall be made as follows:
.1 for changes in the Work as provided in
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